Preventive Medicine Associates, Inc., et al. v. Commonwealth (Lawyers Weekly No. 10-130-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11252   PREVENTIVE MEDICINE ASSOCIATES, INC., & another[1]  vs.  COMMONWEALTH.       Suffolk.     March 7, 2013.  ‑  July 15, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Electronic Mail.  Privileged Communication.  Search and Seizure, Warrant.  Practice, Criminal, Warrant, Assistance of counsel, Subpoena.  Constitutional Law, Search and seizure, Assistance of counsel.  Rules of Criminal Procedure.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 13, 2012.   The case was reported by Spina, J.     Timothy E. Maguire for the plaintiffs. Thomas E. Bocian, Assistant Attorney General, for the Commonwealth.       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 […]

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