NEW ENGLAND LAW REVIEW

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VOLUME 48 Issue 1

NEW ENGLAND LAW | BOSTON 2013 Copyright New England School of Law, Boston, MA

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VOLUME 48 ISSUE 1 FALL 2013

Table of Contents
PREVENTIVE MED. ASSOCS., INC. V. COMMONWEALTH, 465 MASS. 810 (2013) Contributing Editor: Crystal Kennedy ..................................................................... 5

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Preventive Medicine Associates, Inc. v. Commonwealth 465 Mass. 810 (2013)

CONTRIBUTING EDITOR: CRYSTAL KENNEDY

I.

Procedural History

The Commonwealth, through the Attorney General, sought a grand jury indictment to charge Preve ntive Medicine Associates, Inc. (PMA) and Punyamurtula Kishore (Kishore) with Medicaid fraud. 1 The grand jury returned the indictment charges on September 29, 2011.2 The Commonwealth later sought, on two separate occasions, search warrants ex parte to search the e-mail accounts of Kishore and PMAs former billing director, Cheryl Church (Church).3 After the Commonwealth received and reviewed a number of the emails from Google, Inc., the Defendants sought two separate protective orders from the court for the two e-mail accounts based on attorney-client privilege.4 After two hearings, the motion judge required the Commonwealth to create a taint team comprised of assistant attorneys general not involved in the investigation or prosecution of the defendants to review the e-mails.5 The Defendants immediately sought relief from the order before a single justice in the county court,6 who stayed the order and reserved two questions for the full Supreme Judicial Court (SJC) to review.7

1 2 3 4 5 6 7

Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810, 811 (Mass. 2013). Id. at 812. Id. at 813 & 815. Id. at 815816. Id. at 811. Id. at 816. Preventive Med. Assocs., Inc. v. Commonwealth, supra at 812.

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II. Facts

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Kishore owned and operated PMA, which is a Massachusetts network of medical practices.8 The Commonwealth believed that PMA created a kickback scheme by paying certain sober homes to refer their residents to PMA for drug testing.9 MassHealth, the Massachusetts Medicaid program, would then pay PMAit received approximately $18.9 million from this program.10 The Commonwealth believed this kickback scheme existed from July, 2006 to April, 2011.11 [O]n September 29, 2011, the grand jury returned indictments charging Kishore and PMA each with eight counts of violating the Medicaid false claims statutes (based on the alleged kickback scheme) . . . and eight counts of violating the Medicaid antikickback statute.12 On September 7, 2011, during the grand jury investigation, the Commonwealth contacted Google, Inc. and requested them to preserve Kishore and Churchs e-mail accounts.13 On December 21, 2011 the Commonwealth applied for a search warrant in Superior Court to search these email accounts.14 The Commonwealth sought three categories of documents in their affidavit, documents relating to the following: (1) PMAs billing history with MassHealth to demonstrate that the services rendered were not medically necessary or approved; (2) bills that PMA submitted to MassHealth; or (3) financial arrangements between Kishore or PMA and sober houses to refer residents to PMA for drug testing. 15 The Commonwealth did not mention the indictment in the affidavit for the initial search warrant.16 The Superior Court issued the search warrant for emails from March 21, 2008 to the estimated date PMA stopped doing business.17 In response to the search warrant, Google, Inc. sent the Commonwealth copies of all of Kishore and Churchs e-mails dated between March 21, 2008 and December 22, 2011.18 Once the Commonwealth received the e-mails, the deputy chief of investigations searched them to segregate e-mails potentially covered by

8 9

Id. at 812. Id. 10 Id. 11 Id. 12 Id. 13 Preventive Med. Assocs., Inc. v. Commonwealth, supra at 813. 14 Id. 15 Id. 16 Id. 17 Id. at 814. 18 Id.

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Preventive Med. Assocs., Inc. v. Commonwealth

the attorney-client privilege.19 The deputy chief of investigations turned over 51,309 e-mails to the investigative team that were determined to not violate the attorney-client privilege.20 While reviewing the e-mails the investigator discovered some of the e-mails were dated after September 2011 and immediately stopped his review; the Commonwealth had reason to believe that PMA has ceased its operations at this point and, therefore, could not search e-mailed not believed to be part of the kick-back scheme.21 On February 28, 2012, the Commonwealth applied for a second search warrant ex parte; requesting the ability to review Kishore and Churchs emails from September 29, 2011, to December 22, 2011.22 The Commonwealth mentioned in its accompanying affidavit for the second warrant that a grand jury issues an indictment charging the defendants with operating a kick-back scheme.23 The Superior Court issued the search warrant, and the Commonwealth continued reviewing the e-mails.24 [A]s part of pretrial discovery, the Commonwealth provided defense counsel with one of the e-mails it had received from Google pursuant to the first search warrant that related to the alleged kickback scheme.25 This was the first time defense counsel became aware that the Commonwealth seized these e-mails, and they immediately filed an emergency motion for a protective order for Kishores e-mails.26 The motion judge ruled on March 2, 2012 that the Commonwealth to cease review of the e-mails in its possession until further court order and to provide a copy of all those emails to the defendants.27 Based on the copy of e-mails provided, defense counsel sought another protective order for Churchs e-mails.28 On May 23, 2012, the motion judge required a taint team to review Church e-mails, which was then extended to review Kishore s e-mails.29 The Defendants sought relief of the order from a single justice in the county court; this justice stayed the amended order and reported the two issues to the full court.30

19 20 21 22 23 24 25 26 27 28 29 30

Preventive Med. Assocs., Inc. v. Commonwealth, supra at 814. Id. Id. at 814815. See id. at 815. Id. See id. at 811. Preventive Med. Assocs., Inc. v. Commonwealth, supra at 815. Id. Id. Id. at 816. Id. Id.

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III. Issues Presented 1. Whether the Commonwealth may, by means of an ex parte search warrant, search the post-indictment emails of a criminal defendant.31

2. If question (1) is answered in the affirmative, whether the taint team procedure authorized in the Amended Order dated June 4, 2012, is permissible under the Massachusetts Constitution.32 IV. Holdings and Reasoning The SJC answered both issues in the affirmative [w]ith some important limitations.33 The Commonwealth may, by means of an ex parte search warrant, search the post-indictment emails of a criminal defendant. The Court addressed the initial issue in two parts: (a) whether the Commonwealth may seize e-mails of a defendant under indictment by means of an ex parte search warrant,34 and (b) whether, if the Commonwealth may seize such e-mails, there are special conditions or procedures that the Commonwealth must follow in conducting any search of them.35 While considering whether the Commonwealth could seize Kishore and Churchs e-mails, the Court analyzed Massachusetts General Law chapter 276, section 1 and 1B, and Massachusetts Rule of Criminal Procedure 17 (Rule 17).36 Section 1B authorizes a judge to issue warrants to search e-mails, and has no restricting language that prohibits a search warrant seeking to search records or other property of an indicted criminal defendant.37 The statute references The Stored Communications Act (SCA), which provides a procedure for government officials to obtain e-mails or electronic communications from third-party providers.38 The SCA also does not distinguish between before and after indictment. 39 In contrast to both the statute and act, Rule 17, as analyzed by the defendants, precludes the postindictment issuance of a warrant to obtain a defendant s e-mails (and thereby precludes the Commonwealth from obtaining those e-mails for

31 32 33 34 35 36 37 38 39

Preventive Med. Assocs., Inc. v. Commonwealth, supra at 812. Id. Id. Id. at 817. Id. Id. at 818821, citing G.L. c. 11B, and Mass. R. Crim. P. 17, 378 Mass. 885 (1979). Preventive Med. Assocs., Inc. v. Commonwealth, supra at 819; citing G. L. c. 276, 1B. Id. at 819, citing 18 U.S.C. 2703 (2006). Id.

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Preventive Med. Assocs., Inc. v. Commonwealth

which the SCA requires a warrant).40 The Court concluded that an ex parte search warrant for e-mails issued postindictment is not contrary to Rule 17.41 Such a search warrant is an acceptable way to seize e-mails for a defendant under indictment, so long as the Commonwealth complies with particular conditions such as the following: (1) only a Superior Court judge may issue a search warrant seeking an indicted criminal defendant s emails; (2) the affidavit submitted in support of the warrant application must inform the judge at the outset that the individual whose e-mails are being sought is presently under indictment, and must explain the nature and scope of the pending indictment (or indictments), as well as the relationship, if any, between the pending indictment and the search warrant being sought; and (3) said affidavit must explain the need for using a search warrant instead of Rule 17.42 Additionally, the Court determined that in the future the Commonwealth must propose a search protocol for the Superior Courts approval, to ensure that a defendants privileged communications are protected. 43 Failing to comply with this procedure, including merely failing to justify the need for a search warrant, can give the Superior Court cause to deny the application. 44 The Court stated that these procedures were to protect against a breach of attorneyclient privilege between the defendant and his or her attorney as interpreted through art. 14 of the Declaration of Rights of the Massachusetts Constitution (DRMC).45 The taint team procedure authorized in the June 4, 2012 amended order is permissible under the Massachusetts Constitution. First, the Court determined that the taint team does not violate art. 12 of the DRMC or the Sixth Amendment right to counsel so long as the Commonwealth can demonstrate that the taint team will prevent the disclosure of privileged information to the prosecution team.46 The court finds that a Superior Court order for a taint team must have the following requirements:
(1) [T]he members of the taint team must not have been and may not be involved in any way in the investigation or prosecution of the defendants subject to indictmentpresently or in the future; (2) the taint team members are prohibited from (a) disclosing at any time to the investigation or prosecution team the search terms submitted by the defendants, and (b) disclosing to the investigation or prosecution team any e-mails or the information
40 41 42 43 44 45 46

Id. Id. at 821. Id. at 821822. Preventive Med. Assocs., Inc. v. Commonwealth, supra at 823. Id. at 822. See id. at 822823. Id. at 827.

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N e w E n g . L . R e v . Ma s s . C r i m . D i g . contained in any e-mails, subject to review until the taint team process is complete and in compliance with its terms; (3) the defendants must have an opportunity to review the results of the taint teams work and to contest any privilege determinations made by the taint team before a Superior Court judge, if necessary, prior to any e-mails being disclosed to the investigation or prosecution team; and (4) the members of the taint team must agree to the terms of the order in writing.47

v. 48 | 5

The Court showed concern over courts granting prosecutors the use of taint-teams because using members from within that office could cause strain based on the size of a prosecutors collective office; responsively, the Court outlined considerations for courts to utilize when faced with such a request from prosecutor offices.48 Furthermore, the court found that the taint team process of separating privileged e-mails complies with Article 14s particularity requirement.49 Ultimately, the motion judge remanded to the single justice for further proceedings in light of the opinion.50 V. Impact on the Law This opinion adds to numerous state and federal decisions on using taint teams to protect the attorney-client privilege.51 The SJC recognized the federal courts disapproval of taint teams, and mandated judicial oversight over the teams.52 The Court also mandated specific protocols for the taint team to follow to further protect this privilege.53 This case balances the importance of a defendants state and federal constitutional rights, and the Commonwealths need for information to prove its case. 54 The ACLU has already utilized the logic in this case regarding necessary judicial oversight and prior approval in an amicus brief to the Massachusetts Superior Court in Commonwealth v. Forlizzi.55 Preventive Medicine Associates, Inc. v.

Id. at 828. Id. at 82930. 49 Preventive Med. Assocs., Inc. v. Commonwealth, supra at 831832. 50 Id. at 832833. 51 See id. at 825, citing United States v. SID Future Health, Inc., 464 F. Supp. 2d. 1027, 1037 (D. Nev. 2006); United States v. Taylor, 764 F. Supp. 2d. 230, 234 (D. Me. 2011).
48 52 Id. at 821 (*J+udicial supervision is essential where the Commonwealth seeks to search the emails of an indicted defendant). 53 See Jessie Rossman, Protecting the Attorney-Client Privilege in the Digital Age, at http://www.privacysos.org/node/1123 (last viewed August 29, 2013).

47

See id. See id. citing Brief of American Civil Liberties Union of Massachuestts as Amicus Curiae in Support of Defendant, David Forlizzi, at http://www.privacysos.org/sites/all/files/2013_7_15_%20ACLUM%20Forlizzi%20Amicus%20B rief.pdf (last viewed September 4, 2013).
55

54

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Commonwealth, may become a cornerstone decision in the approval of taint team procedures for electronic communications.56

56

See id.