Supreme Judicial Court, July 15, 2013

The Commonwealth may seek to seize emails of a defendant under indictment through the issuance of an ex-parte search warrant; however, judicial supervision is necessary because of the risk that privileged attorney-client communications will be included in those emails.

When the Commonwealth seizes the e-mails of a defendant under indictment pursuant to a search warrant, 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.  Unless the Commonwealth can demonstrate a compelling contrary reason, the defendant must have an opportunity to be heard before the judge approves a particular search method.

The Commonwealth’s use of a taint team to review the seized emails is permissible under the Massachusetts Constitution as long as four essential requirements are met:

(1) the 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 indictment--presently 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 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 team's 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.

“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.”

Note:  “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.”