Preventive Med. Assocs., Inc. v. Commonwealth

• Decision Date: 15 July 2013
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PREVENTIVE MEDICINE ASSOCIATES, INC., & another v. COMMONWEALTH.

465 Mass. 810

992 N.E.2d 257

PREVENTIVE MEDICINE ASSOCIATES, INC., &another ¹

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 7, 2013.

Decided July 15, 2013.

Timothy E. Maguire, Boston, for the plaintiffs.

Thomas E. Bocian, Assistant Attorney General, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

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. ² Thereafter, on two different occasions, the Commonwealth applied for and obtained search warrants to obtain and search designated e-mail accounts of Kishore and of PMA's former billing director, Cheryl Church; both e-mail accounts were with Google, Inc. (Google), which stored the e-mails on its own server. On learning that the Commonwealth had begun reviewing Kishore's e-mails pursuant to the warrants, the defendants moved for a protective order, claiming that the attorney-client privilege protected many of those e-mails.

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 county court, seeking relief from the motion judge's order. The single justice stayed the motion judge's order and reserved and reported the following questions to the full court:

“(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” ³ alleges, in relevantpart, that Kishore owned and operated PMA, a network of group medical practices in Massachusetts. The Commonwealth asserts that PMA performed numerous drug tests for patients over a period from July, 2006, to April, 2011, for which PMA was paid approximately $18.9 million from MassHealth, the Massachusetts Medicaid program. PMA obtained some of these payments from MassHealth as a result of an illegal kickback scheme, by which PMA paid certain “sober homes” ⁴ in order to induce the sober homes to refer their residents to PMA for drug testing. A grand jury investigation commenced in 2009, and on September 29, 2011, the grand jury returned indictments charging Kishore and PMA each with eight counts of violating the Medicaid false claims statute (based on the alleged kickback scheme), G.L. c. 118E, § 40; and eight counts of violating the Medicaid antikickback statute, G.L. c. 118E, § 41,⁵ see note 2, supra.

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,⁶ on September 7, 2011, the Commonwealth requested in writing that Google preserve Kishore's and Church's e-mail accounts. Thereafter, on December 21, almost three months after the defendants were indicted, the Commonwealth applied to a judge in the Superior Court for a search warrant to search the e-mail accounts of Kishore and Church for documents relating to:

“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 contain evidence of a kickback scheme between the defendants and sober homes, the third category of information for which the Commonwealth sought to search.

Rather, the affidavit provided information relating only to allegedly fraudulent billing practices of the defendants—separate crimes that were the subject of an ongoing investigation by the grand jury. Nonetheless, the search warrant as issued permitted the Commonwealth to search for all three categories of information that it had sought in its search warrant affidavit, and the Commonwealth served the warrant on Google.⁸ In response, Google sent the Commonwealth two digital video discs (DVDs) containing copies of all e-mails dated from March 21, 2008, to December 22, 2011, in Kishore's and Church's e-mail accounts. The DVDs contained 68,516 e-mails from Kishore's e-mail account and 11,737 e-mails from Church's e-mail account, for a total of 80,253 e-mails.

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, 2012.⁹ He started by identifying and segregating e-mails potentially covered by the attorney-client privilege. To do so, he used a computer program to search for the names of attorneys and law firms believed by the prosecuting assistant attorneys general to have been associated with the defendants. As a result of those searches, 7,700 e-mails were segregated from the rest, and no one in the Attorney General's office reviewed the contents of those e-mails. Additionally, the deputy chief of investigations used computer programs to identify duplicate e-mails and e-mails generated from commercial Web sites. He removed those e-mails as well, and turned over the remaining 51,309 e-mails to an investigator in the Medicaid fraud division.

That investigator started reviewing those e-mails on January [465 Mass. 815]18, 2012. Sometime between that date and February 28, he discovered that some of the e-mails had been sent or received after September, 2011, when, according to the Commonwealth's information, PMA had ceased its operations. The investigator ceased his review because he was concerned that he could not search e-mails pursuant to the December, 2011, warrant that were sent or received after PMA had ceased its operations. On February 28, 2012, the Commonwealth applied to a Superior Court judge ¹⁰ for a second search warrant, specifically seeking to search Kishore's and Church's e-mail accounts for e-mails dated from September 29, 2011 (the date of the indictments), to December 22, 2011. The affidavit in support of the second search warrant application incorporated by reference the first search warrant and, in addition, stated in one of its final paragraphs (paragraph forty-two of forty-six) that a grand jury had returned indictments charging the defendants with having operated a kickback scheme with certain sober homes.

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 concluded that the Attorney General's segregation process had failed to identify all privileged e-mails. On April 23, 2012, the defendants filed a motion to dismiss the indictments, alleging violation of the defendants' constitutional right to counsel guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. That motion remains pending.

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...