INDICTMENT ISSUANCE OF EX PARTE SEARCH WARRANT TO OBTAIN CRIMINAL DEFENDANTS' E-MAILS UPHELD BY MASS SUPREME COURT

In a decision impacting the attorney-client privilege, on July 15, 2013, the Massachusetts Supreme Judicial Court held that the post-indictment issuance of an ex parte search warrant to obtain e-mails of a defendant under indictment is not prohibited under Massachusetts court rules.  While upholding the search warrant in Preventive Medicine Associates, Inc. et al v. Commonwealth, the Court established clear guidance as to the circumstances when a search warrant – rather than a subpoena - may be executed by law enforcement against an indicted defendant.  The opinion also details safeguards that must be followed to ensure that prosecutors do not access e-mails protected by the attorney-client privilege.

In its holding, the SJC required that, in future cases, only a superior court judge may issue a search warrant seeking e-mails of indicted criminal defendants.  Additionally, the supporting affidavit for search warrant must notify the judge that the individual whose e-mails are being sought is under indictment, and detail the connection between the pending indictment(s) and the search warrant being sought.  The affidavit also must explain law enforcement’s need for a search warrant, rather than seeking the information via subpoena.

In this case the SJC approved the Commonwealth’s use of a group of assistant attorneys general, or “taint team,” to identify and segregate e-mails protected by the attorney-client privilege, in part, because the defendants were given the opportunity to review the taint team’s work and contest its determinations regarding privilege.  In future cases, however, the Court held that the judge issuing the search warrant may require the use of an independent special master to review the e-mails or, upon a sufficient showing of necessity by the Commonwealth, authorize the use of a taint team, but only if specific safeguards are in place to protect the attorney-client privilege. 

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