465 Mass. 810 | Mass. | 2013
This case concerns the search by the Commonwealth of electronic mail messages (e-mails) of a criminal defendant after he has been indicted. Because the e-mails sought by the Commonwealth are intermingled with many other e-mails that are likely to be protected by the attorney-client privilege, the case concerns more particularly the intersection between search and seizure law and that privilege.
The issue arises in the following context. On behalf of the Commonwealth, the Attorney General sought, and a grand jury returned, indictments charging the defendants, Preventive Medicine Associates, Inc. (PMA), and Punyamurtula Kishore, with Medicaid fraud in violation of G. L. c. 118E, §§40 and 41.
After several hearings, on June 4, 2012, a judge in the Superior Court (motion judge) entered an amended order permitting the Commonwealth to search the e-mails by using a so-called “taint team” comprised of assistant attorneys general not involved in the investigation or prosecution of the defendants. The defendants filed a petition under G. L. c. 211, § 3, in the
“(1) Whether the Commonwealth may, by means of an ex parte search warrant, search the post-indictment emails of a criminal defendant.
“(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.”
With some important limitations, we answer yes to both questions.
Background. The Commonwealth’s “statement of the case”
In connection with its continuing investigation of the defendants, the Commonwealth sought to search the Google e-mail accounts of Kishore and of Church. Because Google held the e-mails on its own servers,
“1. [PMA’s] violation of the Medicaid False Claims Act, PMA’s billing MassHealth for services that were not medically necessary, and PMA’s billing MassHealth for services that were not authorized by a MassHealth provider actively involved in the treatment of the MassHealth member; or
“2. bills submitted to MassHealth by PMA; or
“3. financial arrangements between Dr. Kishore and/or PMA and/or NLA[7 ] and/or Massachusetts sober houses that referred residents to PMA for urine drug screen testing.”
The affidavit in support of the search warrant application did not mention that a grand jury previously had returned indictments charging the defendants with having operated an illegal kickback scheme with certain sober homes. As conceded by the Commonwealth, the search warrant affidavit also failed to establish probable cause to believe that any of the e-mails would
The deputy chief of investigations for the Attorney General’s Medicaid fraud division, who was also a certified forensic computer examiner, began searching the e-mails in Kishore’s account in early January, 2012.
That investigator started reviewing those e-mails on January
On February 29, 2012, as 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. As a result, defense counsel learned for the first time that the Commonwealth had seized and was in the process of searching the e-mails in Kishore’s Google e-mail account. Concerned that the seized e-mail account contained communications protected by the attorney-client privilege, counsel filed an emergency motion for a protective order the next day.
The motion judge held a hearing on March 2, 2012, on the emergency motion, at the end of which the motion judge ordered the Commonwealth to cease its review of the e-mails in its possession until further court order and to provide a copy of all those e-mails to the defendants. At a subsequent hearing approximately two weeks later, the motion judge ordered the Commonwealth to produce to the defendants a separate copy of all e-mails that had been segregated as potentially privileged and not reviewed. The defendants compared the group of all e-mails to the group of e-mails identified as potentially privileged, and
Meanwhile, the defendants also learned that the Commonwealth had obtained e-mails from Church’s e-mail account, and thereafter filed a second motion for a protective order concerning the Church e-mails; the motion judge ordered the Commonwealth to cease its review of those e-mails as well.
At another hearing on the same matter held May 9, 2012, the Commonwealth suggested to the motion judge the appointment of a special magistrate to review all e-mails in the Commonwealth’s possession and remove those e-mails covered by the attorney-client privilege. In a subsequent filing, however, the Commonwealth informed the judge that it had changed its position, and believed that the appointment of a special magistrate to review the entire set of e-mails would prove too costly. On May 23, the motion judge entered an order requiring a “taint team” to review the Church e-mails. The judge entered an amended order on June 4 (amended order), extending the taint team procedure to review of the Kishore e-mails as well as the Church e-mails.
Pursuant to G. L. c. 211, § 3, the defendants sought relief from this order from a single justice in the county court. As indicated, the single justice stayed the amended order and reserved and reported the two questions set forth above.
Discussion. 1. Postindictment search of a criminal defendant’s e-mails by means of an ex parte search warrant. The first reported question asks whether the Commonwealth may obtain ex parte a search warrant to search a criminal defendant’s e-mails after he has been indicted.
As a preliminary matter, the Commonwealth contends that it obtained both search warrants with the sole purpose of finding evidence of uncharged crimes, not the charged kickback scheme.
a. Postindictment seizure of e-mails by means of an ex parte search warrant.
The Stored Communications Act, 18 U.S.C. §§ 2701-2712 (2006 & Supp. IV 2010) (SCA), to which G. L. c. 276, § IB (a), refers (see note 16, supra), provides the procedures that a “governmental entity” — defined to mean any department or agency of the United States or any State or political subdivision, see 18 U.S.C. § 2711(4) — must follow in order to obtain a user’s e-mails or other electronic communications from third-party providers of electronic communication services and remote computing services. See 18 U.S.C. § 2703. See also United States v. Weaver, 636 F. Supp. 2d 769, 770 (C.D. 111. 2009). See generally Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (2004). The SCA authorizes and in some instances requires the governmental entity to obtain a search warrant in order to gain access to e-mails
Notwithstanding these statutory provisions, the defendants contend that Mass. R. Grim. R 17, 378 Mass. 885 (1979) (rule 17), 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 which the SCA requires a warrant).
The defendants read the rule 17 (a) (2) procedure of obtaining prior access to subpoenaed records as coming into play only after the return of an indictment, at which point it becomes the exclusive means of seeking third-party records. The defendants are incorrect. Rule 17 may apply even before the return of an indictment; as noted, the rule authorizes the issuance of a subpoena to a third party to produce records before the grand jury. See Commonwealth v. Odgren, 455 Mass, at 180-181, and sources cited. See also United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991) (“the focus of our inquiry is the limit imposed on a grand jury by Federal Rule of Criminal Procedure 17[c], which governs the issuance of subpoenas duces tecum in federal criminal proceedings”); 2 C.A. Wright & P.J. Henning, Federal Practice & Procedure § 272, at 242-243 (4th ed. 2009).
We thus conclude that the postindictment issuance of an ex parte search warrant to obtain e-mails does not run afoul of rule 17, and that an ex parte search warrant is an acceptable means by which the Commonwealth may seek to seize e-mails of a defendant under indictment. That does not end our discussion, however. As we explain infra, judicial supervision is essential where the Commonwealth seeks to search the e-mails of an indicted defendant, because of the risk that privileged attorney-client communications will be included in those e-mails. In order to ensure proper judicial supervision over this process,
b. Search of e-mails seized pursuant to a postindictment search warrant. Under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the manner in which a search is conducted must be reasonable. See United States v. Ramirez, 523 U.S. 65, 71 (1998) (“The general touchstone of reasonableness which governs Fourth Amendment analysis . . . governs the method of execution of the warrant”); Bellville v. Town of Northboro, 375 F.3d 25, 32 (1st Cir. 2004) (“the Fourth Amendment’s prohibition of unreasonable searches and seizures extends not only to the initiation of searches but also to the manner in which searches are conducted”); Commonwealth v. McDermott, 448 Mass. 750, 111, cert, denied, 552 U.S. 910 (2007) (McDermott) (search of computers and disks storing records “must be reasonable”). When an indicted defendant’s e-mails are the object to be
Given the constitutional command of reasonableness and in light of the risk involved to the integrity of a defendant’s attorney-client privilege, we conclude that in the future, when the Commonwealth seizes pursuant to a search warrant the e-mails of a defendant under indictment, before any search of those e-mails may take place, the Commonwealth must present to a Superior Court judge and obtain the judge’s approval of the search protocol to be used and specifically the procedures proposed to protect against searches of privileged communications between the defendant and his attorneys.
2. Taint team search procedure. The second question reserved and reported by the single justice asks whether the taint team search procedure set forth in the amended order is a permissible method to conduct such a search under the Massachusetts Constitution.
We begin by summarizing the amended order’s provisions that set out the taint team procedures. The amended order requires the Commonwealth to “designate a team of attorneys and/or agents employed by the Office of the Attorney [General] who have not at any time been involved in the investigation(s) and/or prosecution of the defendants . . . and who shall not be assigned to any such investigation or prosecution in the future (the TEAM).” After the formation of the taint team, the defendants are to “provide a list of search terms which may facilitate the review of emails to be conducted by the TEAM so designated.” Then, over the next twenty days, the taint team is to (1) review all e-mails from the Church and Kishore e-mail accounts that previously have not been designated privileged; and (2) separate into two groups “those emails which the TEAM and/or members thereof deem possibly privileged and those deemed not to be privileged on their face.” After the taint team’s review, the defendants are to have fourteen days to review all the e-mails that the taint team has reviewed, both “possibly privileged” and not privileged, and to prepare and file written objections to any of the taint team’s privilege determinations. If such objections cannot be resolved by agreement, the Superior Court judge is to resolve them on motion of the defendants. The taint team is not to disclose or provide access to any e-mails under review until the defendants have completed their review. At that point, the taint team is to release to the prosecuting attorneys all e-mails that the team has determined to be nonprivileged and as to which the defendants have not filed an objection.
The defendants argue that the amended order’s taint team procedures violate their constitutional right to counsel. They contend also that the amended order authorizes an unconstitutional general search. We consider these arguments in turn.
a. The taint team, the attorney-client privilege, and the right to counsel. “Federal courts have taken a skeptical view of the Government’s use of ‘taint teams’ as an appropriate method for determining whether seized or subpoenaed records are protected by the attorney-client privilege.” United States v. SDI Future Health, Inc., 464 F. Supp. 2d 1027, 1037 (D. Nev. 2006). See United States v. Taylor, 764 F. Supp. 2d 230, 234 (D. Me. 2011) (“there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor’s office”); In re Search Warrant for Law Offices, 153 F.R.D. 55, 59 (S.D. N.Y. 1994) (“reliance on the implementation of a Chinese Wall, especially in the context of a criminal prosecution, is highly questionable, and should be discouraged”).
Despite the generally widespread skepticism about government agents reviewing a defendant’s privileged attorney-client communications, Federal court decisions reflect different views on whether to authorize the use of a taint team. Some have rejected its use. See In re Grand Jury Subpoenas, 454 F.3d 511, 524 (6th Cir. 2006) (trial court must employ special master to review documents for privileged communications); United States v. Regan, 281 F. Supp. 2d 795, 806 (E.D. Va. 2002) (same); Black v. United States, 172 F.R.D. 511, 516 (S.D. Fla. 1997) (ordering judge or judge’s designee to review documents for privileged communications). Others have approved its use. See United States v. Triumph Capital Group, Inc., supra; In re Ingram, U.S. Dist. Ct„ No. 12-431 (E.D. La. Apr. 12, 2012). And still others have approved the use of a taint team review procedure while expressing a preference for review by an independent special magistrate. See United States v. Hunter, 13 F. Supp. 2d 574, 583 & n.2 (D. Vt. 1998); United States v. Skeddle, 989 F. Supp. 890, 898 n.6 (N.D. Ohio 1997).
It is possible, as the defendants argue, that government intrusion into the attorney-client privilege may rise to the level of a violation of a defendant’s Sixth Amendment rights, for the attorney-client privilege “is key to the constitutional guarantees of the right to effective assistance of counsel and a fair trial.” United States v. Neill, 952 F. Supp. 834, 839 (D.D.C. 1997). See Commonwealth v. Fontaine, 402 Mass. 491, 496 (1988) (“monitoring of privileged communications between a defendant and his attorney touches the core of the right to counsel”). Nonetheless, courts generally have held that a violation of the attorney-client privilege implicates the right to counsel “only under certain circumstances — specifically, when the government interferes with the relationship between a criminal defendant and his attorney,” and that interference “substantially prejudice^] the criminal defendant.” Partington v. Gedan, 961 F.2d 852, 863 (9th Cir.), cert, denied sub nom. Partington v. Lum, 506 U.S. 999 (1992). On this basis Federal courts have concluded that the government’s use of a taint team does not
While in some respects this court has interpreted the right to counsel set forth in art. 12 of the Massachusetts Declaration of Rights more generously than the Sixth Amendment, we see no cause to do so in the context presented here. Cf. Commonwealth v. Murphy, 448 Mass. 452, 466 (2007), citing Commonwealth v. Rainwater, 425 Mass. 540, 553-554 (1997), cert, denied, 522 U.S. 1095 (1998), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162 (2001), and cases cited (noting limited “instances where this court has interpreted the art. 12 right to counsel more expansively than the Sixth Amendment”). “In deciding whether art. 12 offers more protection of the right to counsel than the Sixth Amendment, ‘our guiding consideration is whether the Federal rule adequately protects the rights of the citizens of Massachusetts.’ ” Commonwealth v. Murphy, supra at 465, quoting Commonwealth v. Mavredakis, 430 Mass. 848, 858 (2000). Here, insofar as the Sixth Amendment right to counsel appears to permit the use of a taint team only where the government can establish that the taint team will prevent the disclosure of privileged information to the prosecution team, see United States v. Neill, 952 F. Supp. at 841, we conclude that the Federal rule does offer adequate protection to the Commonwealth’s citizens. The defendants advance no justification for a stricter constitutional rule that would prohibit the use of taint teams categorically. Cf. Commonwealth v. Fontaine, 402 Mass, at 496-497 (Commonwealth’s monitoring of privileged communications between defendant and his attorney warranted dismissal where it resulted in irremediable prejudice to defense).
We consider each of these four requirements to be an essential component — a sine qua non —of a valid taint team procedure.
While we reach this conclusion in the present case, we also share the skepticism of other courts about the use of a taint team drawn from members of the prosecutor’s office. See In re Search Warrant for Law Offices, 153 F.R.D. at 59 (“The appearance of Justice must be served, as well as the interests of Justice. It is a great leap of faith to expect that members of the general public would believe any such Chinese wall would be impenetrable; this notwithstanding our own tmst in the honor of [a prosecutor]”). In future cases, before a judge may authorize the use of a taint team procedure that draws on members of the prosecutor’s office to be the taint team members, the Commonwealth must establish the necessity of doing so; use of an independent special master offers a far greater appearance of impartiality and protection against unwarranted disclosure and use of an indicted defendant’s privileged communications. In ruling on a prosecution request to employ a taint team procedure, the judge may consider factors such as the number of documents to be searched, the relative cost of a special magistrate, and the Commonwealth’s unique ability to perform such a search due to specialized computer forensic examiners in its employ. The judge should consider also in each case the Commonwealth’s ability to erect an impenetrable wall between members of the taint team
b. General search warrant. The amended order appears to contemplate that after the taint team completes its work, the Commonwealth will review all the remaining, nonprivileged e-mails in searching for evidence within the scope of the two warrants. The defendants argue that the court should restrict the Commonwealth to use only certain search terms in conducting its search, in order to limit the search to e-mails that are likely, or at least more likely, to fit within the warrants’ scope. In response, the Commonwealth presses its ability to conduct a cursory review of every nonprivileged e-mail.
The Fourth Amendment requires that warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.” Similarly, art. 14 of the Massachusetts Declaration of Rights requires warrants to be “accompanied with a special designation of the persons or objects of search, arrest, or seizure.” This particularity requirement “both defines and limits the scope of the search and seizure, thereby protecting individuals from general searches, which was the vice of the pre-Revolution writs of assistance.” Commonwealth v. Balicki, 436 Mass. 1, 8 (2002), quoting Commonwealth v. Freiberg, 405 Mass. 282, 298, cert, denied, 493 U.S. 940 (1989).
In a different context, we have concluded that “a cursory examination of a computer’s files” in searching for evidence within the boundaries of a valid warrant is permissible and does not necessarily violate the particularity requirement of the Fourth Amendment or art. 14. See McDermott, 448 Mass, at 776. In fact, we explained that “[ajdvance approval for the particular methods to be used in the forensic examination of the computers and disks is not necessary. . . . Indeed, the judge or officer issuing the search warrant likely does not have the technical expertise to assess the propriety of a particular forensic analysis.” Id. See generally Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010). But see United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1179 (9th
The Commonwealth asserts that the McDermott case resolves the limited issue before us, i.e., whether the Commonwealth may conduct a cursory review of all the nonprivileged e-mails to find evidence within the scope of the two warrants. It is not so clear that the case does so. McDermott concerned a deadly shooting rampage by the defendant, resulting in murder charges against him. McDermott, 448 Mass, at 751. During their investigation of the crime, the Commonwealth’s investigators had sought and obtained a warrant to search the defendant’s computer files for evidence concerning, inter alia, weapons used and the defendant’s mental functioning. Id. at 773. The search warrant issued and the search was conducted before the defendant was indicted for murder, and the warrant related directly to the investigation of those murders. See id. at 773-774. In the present case, we are concerned with postindictment searches of e-mail accounts pursuant to search warrants that purport to relate to an investigation of crimes distinct from those at issue in the pending indictments. Moreover, in the McDermott case, the investigators conducted their preliminary review of the defendant’s computer files by using a set of preset search terms. See id. at 11 A, 111.
We take seriously the concern that a cursory review of every e-mail undermines the particularity requirement of the Fourth Amendment and art. 14, particularly where — as the Commonwealth appears to argue would be permissible and appropriate in this case •— the cursory review is joined with the plain view doctrine to enable the Commonwealth to use against the
The Commonwealth has not yet conducted its post-taint-team search of e-mails in this case. Thus, we do not know whether the Commonwealth during its search will locate particular e-mails for which it will seek later to invoke the plain view doctrine as a basis for their introduction in evidence in this case. Accordingly, we leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records, as a means to protect the particularity requirement of the Fourth Amendment and art. 14. See Kerr, supra at 576 (“the best way to neutralize dragnet searches is to rethink the plain view exception in the context of digital evidence”).
Conclusion. For the reasons discussed, we answer both of the reported questions in the affirmative. The matter is remanded to
So ordered.
General Laws c. 118E, § 40, punishes the making of false statements or representations in connection with a medical services provider’s application for or receipt of payments under the Commonwealth’s Medicaid program; G. L. c. 118E, § 41, in relevant part, punishes the solicitation as well as the payment of a bribe or any form of remuneration as an inducement to perform a service that may be paid for under the Medicaid program.
The Commonwealth filed an unsworn “statement of the case” in the underlying criminal cases pending in the Superior Court, in which the Commonwealth noted that the statement was “not a full and complete recitation of the facts that support the indictments . . . and [was] not meant to be a Bill of Particulars.” We summarize in the text the Commonwealth’s allegations set out in its statement of the case, but express no view on the accuracy or validity of any allegation.
A sober home is a residential property that provides a sober living environment to its residents. Some sober homes use drug testing to monitor their residents’ drug use.
On September 21, 2011, approximately one week before the return of the indictments, a criminal complaint issued in the District Court charging Kishore with one count of violating the Medicaid antikickback statute, G. L. c. 118E, § 41. The record before us does not indicate the status of that case.
The electronic mail (e-mail) service of Google, Inc. (Google) “is a ‘cloud-based’ email program, meaning the data and applications of the user reside on remote computer servers operated by Google.” Electronic Privacy Info. Ctr. v. National Sec. Agency, 678 R3d 926, 930 n.l (D.C. Cir. 2012).
“NLA” refers to the National Library of Addictions, which, the Commonwealth alleges in its statement of the case, was a charitable organization operated by Kishore.
The Superior Court judge who reviewed the Commonwealth’s December, 2011, search warrant application and issued the search warrant was not the same judge who in June, 2012, issued the amended order that we review in this case (motion judge).
It does not appear that the Commonwealth reviewed any e-mails from the Church account that it had obtained pursuant to the December 21, 2011, warrant.
The motion judge reviewed the second search warrant application and issued the warrant on February 28, 2012.
We describe and discuss the amended order’s specific provisions concerning the taint team infra.
The reported question specifically asks whether the Commonwealth may “search the post-indictment e-mails of a criminal defendant,” but the parties
Where, as here, the search and seizure of electronically stored information is at issue, “the normal sequence of ‘search’ and then selective ‘seizure’ is turned on its head”; first the government seizes the property, then it searches it. See United States v. Bowen, 689 F. Supp. 2d 675, 682 (S.D.N.Y. 2010), aff’d sub nom. United States v. Ingram, 490 Fed. Appx. 363 (2d Cir.), cert, denied, 133 S. Ct. 374, and 133 S. Ct. 630 (2012) (citation omitted).
The Commonwealth does concede that the first search warrant sought, inter alia, “documents relating to . . . financial arrangements between Dr. Kishore and/or PMA . . . and/or Massachusetts sober houses that referred residents to PMA for urine drug screen testing.” As noted, however, the affidavit in support of the application for the first search warrant does not include any facts establishing probable cause to believe that evidence of the indicted kickback scheme would be found in Kishore’s and Church’s e-mail accounts.
Following the parties’ lead, when we refer to the issuance of a search warrant, we assume the search warrant issues ex parte. See Commonwealth v. Bond, 375 Mass. 201, 205 n.6 (1978) (“A search warrant issues ex parte and results in an immediate intrusion”). Our understanding that the issuance of a search warrant to seize e-mails implies an ex parte proceeding comports with G. L. c. 276, § IB, and 18 U.S.C. § 2703 (2006 & Supp. IV 2010), the statutes governing the seizure of e-mails from a third party. Under G. L. c. 276, § IB, and 18 U.S.C. § 2703(b)(1), when the government uses a warrant to seize an individual’s e-mails from a third party, the government need not provide prior notice to the individual; by contrast, when the government uses a trial subpoena to seize any of the individual’s e-mails for which a warrant is not required, the government must provide prior notice to the individual. As indicated previously, the issuance of a search warrant for e-mails and resulting seizure of the e-mails pursuant to that warrant are distinct from any search of them. We consider in part l.b, infra, the issue whether notice must be provided to the e-mail user before the search of those e-mails takes place.
General Laws c. 276, § IB (a), defines “[electronic communication services” and “[rjemote computing services” by reference to the Stored Communications Act, 18 U.S.C. §§ 2701-2712 (2006 & Supp. IV 2010) (SCA). An “electronic communication service” is “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15) (2006). See 18 U.S.C. § 2711(1) (applying definitions set forth in 18 U.S.C. § 2510 to SCA). A “remote computing service” means “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C. § 2711(2).
A single provider may perform both electronic communications services and remote computing services. See, e.g., Crispin v. Christian Audigier, Inc., Ill F. Supp. 2d 965, 986-987 & n.42 (C.D. Cal. 2010); United States v. Weaver, 636 F. Supp. 2d 769, 770 (C.D. 111. 2009). See also Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1215-1216 (2004).
For example, under the SCA, a governmental entity must obtain a search warrant to acquire access to certain e-mails that are 180 days old or less by search warrant; a subpoena is not a permissible means. See 18 U.S.C. § 2703(a). See also Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d at 982; United States v. Weaver, 636 F. Supp. 2d at 771.
The defendants argue that Mass. R. Grim. P. 14, as amended, 444 Mass. 1501 (2005) (rule 14), which defines the discovery process between parties in a criminal case, also may apply to and govern the Commonwealth’s efforts to obtain access to the defendants’ e-mail accounts with Google. Because Google is not a party to the criminal case but a third-party holder of records, we
Rule 17 uses the term “summons” instead of “subpoena,” but the terms are synonymous. See Commonwealth v. Lampron, 441 Mass. 265, 269 n.5 (2004).
“The ‘prototype’ for our rule 17 was Fed. R. Crim. P. 17,” to which we have looked for interpretive guidance in past decisions. Commonwealth v. Odgren, 455 Mass. 171, 180 (2009). See Commonwealth v. Lampron, 441 Mass, at 269.
As noted, G. L. c. 276, §§ 1 and IB, authorize the issuance of search warrants. Authority for issuing subpoenas in criminal cases is granted by G. L. c. 233, § 1; G. L. c. 277, § 68; and Mass. R. Crim. R 17. See Commonwealth v. Odgren, 455 Mass, at 178.
While the Massachusetts Rules of Criminal Procedure do not preclude the Commonwealth from seeking ex parte a warrant to conduct a postindictment search of third-party records, we interpret the rule to create in essence a presumption that after an indictment issues, the Commonwealth will pursue third-party records pursuant to the procedure spelled out in mle 17.
See Commonwealth v. O’Brien, 432 Mass. 578, 584 (2000) (“When exercising our supervisory powers, we are not limited to correcting error, but may be guided by whatever is needed to ensure that cases are tried fairly and expeditiously”); Commonwealth v. Bastarache, 382 Mass. 86, 102 (1980) (“In matters concerned with the administration of the courts and the trial of cases, we may impose requirements [by order, rule or opinion] that go beyond constitutional mandates”).
See United States v. Regan, 281 R Supp. 2d 795, 806 (E.D. Va. 2002) (“The Court is mindful that the Defendant’s . . . computers may contain attorney-client information and memoranda; therefore the Court will carefully circumscribe the parameters and method of the search”). Cf. In re Impounded Case (Law Firm), 840 F.2d 196, 202 (3d Cir. 1988) (reversing trial judge’s order requiring return of potentially privileged records seized from law firm because “the attorney-client privilege [was] sufficiently protected by the procedure established by the magistrate requiring that the government obtain leave of the court before examining any seized items”).
See In re Lott, 424 F.3d 446, 451-452 (6th Cir. 2005), cert, denied, 547 U.S. 1092 (2006) (“disclosure is not remedied merely because a disclosed confidence is not used against the holder in a particular case”).
See, e.g., United States v. Taylor, 764 F. Supp. 2d 230, 235 (D. Me. 2011) (“government behaved reasonably” by seeking judicial approval of proposed search method and giving defendant opportunity to be heard “once its agent noticed that e-mail headers reflected communications between lawyer and client”).
As stated by one court:
“[T]aint teams present inevitable, and reasonably foreseeable, risks to privilege, for they have been implicated in the past in leaks of confidential information to prosecutors. That is to say, the government taint team may have an interest in preserving privilege, but it also possesses a conflicting interest in pursuing the investigation, and, human nature being what it is, occasionally some taint-team attorneys will make mistakes or violate their ethical obligations. It is thus logical to suppose that taint teams pose a serious risk to holders of privilege, and this supposition is substantiated by past experience. In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”
In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006).
Depending on the circumstances, the Commonwealth’s failure to comply with the terms of an order establishing a taint team and defining its procedures could result in the dismissal of the indictments. Cf. United States v. Neill, 952 F. Supp. 834, 840-841 (D.D.C. 1997), citing Weatherford v. Bursey, 429 U.S. 545, 558 (1977) (use of taint team does not violate defendant’s Sixth Amendment right to counsel so long as taint team procedure prevents disclosure of privileged communications to prosecution team). In addition, a taint team member who commits a breach of the terms of such an order could be subject to individual discipline, including criminal contempt. Cf. Birchall, petitioner, 454 Mass. 837, 848 (2009), quoting Sodones v. Sodones, 366 Mass. 121, 130 (1974) (criminal contempt imposed “to vindicate the court’s authority and to punish the contemnor for doing a forbidden act or for failing to act as ordered”).
In this regard, see United States Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 111 (3d ed. 2009) (recommending that defense counsel have opportunity to review taint team’s results before turning over documents to prosecution in order to enhance legitimacy).
The defendants’ motion to dismiss is not before us. Therefore we do not decide whether the Commonwealth’s actual search of some of the allegedly privileged e-mails in Kishore’s e-mail account, conducted before the amended order establishing the taint team entered, requires the dismissal of the pending indictments because the search violated the defendants’ attorney-client privilege. Nor does our decision preclude the defendants from arguing in the future that their constitutional rights were violated if the Commonwealth fails to follow scrupulously the taint team procedure set out in the amended order.
The present case does not present the separate but related issue concerning a judge’s authority to define the scope of a search warrant for electronic evidence by means of search terms rather than a traditional description of the evidence. See In re Appeal of Application for Search Warrant, 2012 VT 102, 125 n.12 (2012), cert, denied, 133 S. Ct. 2391 (2013) (distinguishing between decisions concerning “whether certain ex ante parameters are required” and decisions concerning “whether such conditions are a permissible exercise of authority” [emphases in original]).
As indicated at the outset, the Commonwealth has conceded that the affidavit in support of the first search warrant did not establish probable cause to believe that the third category of evidence for which the Commonwealth sought to search — namely, evidence of the alleged kickback scheme that is the subject of the pending indictments ■— would be found in Kishore’s and Church’s e-mail accounts.