Translation – By Judge Rudolph Kass (ret.)
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By James D. Smeallie
In March of this year, the Boston Bar Foundation (BBF) released a groundbreaking study assessing the practical impact of legal representation in eviction cases. The data indicated that without representation by counsel, many vulnerable tenants forfeit important rights, often lose possession of homes they could have retained, and sometimes forego substantial financial benefits. Conducted under the auspices of a Boston Bar Association (BBA) Task Force on Expanding Civil Right to Counsel, the study involved two different pilot projects, one in the Quincy District Court, and one in the Northeast Housing Court.
Meanwhile, a study conducted by the Task Force to Expand Access to Civil Legal Services in New York found that “the unmet need for civil legal assistance in New York State is profoundly impacting vulnerable New Yorkers and costing taxpayers millions of dollars by increasing homelessness, failing to prevent domestic violence, and increasing poverty.”
This is not a new problem. In 1999, the BBA’s Real Estate Section partnered with the Volunteer Lawyers Project of the Boston Bar Association (VLP), Greater Boston Legal Services (GBLS), the WilmerHale Legal Services Center, and the Boston Housing Court (BHC) to establish a Lawyer for the Day program. The goal was to prevent evictions resulting in homelessness. At the request of the BHC, the program has two different legal information tables, one for unrepresented tenants, and another for unrepresented landlords. The Herbert W. Vaughan Fund of the BBF helps support the operations of this program.
During the 13 year history of the Lawyer for the Day program at the BHC, 1,200 volunteers have donated their time to assist more than 14,732 individuals. In just the past year alone, 443 volunteers helped 991 tenants and 181 landlords.
About 95 per cent of tenants at the BHC are unrepresented. According to Chris Saccardi, a solo practitioner from Somerville and a frequent volunteer, tenants, the bulk of whom are low-income and frequently minorities, are usually opposed by a landlord represented by counsel. The issue before the court is typically whether the tenant can stay in his or her home. Were it not for the Lawyer for the Day program, the imbalance in power would be profound.
Chris reports that it is not uncommon to see families with young children, families with elderly parents sharing their home, as well as elderly people living alone — all of whom are facing eviction. But he also sees tenants who have slipped below middle class status because of job loss or illness.
For tenants living in subsidized housing or Boston Housing Authority developments, the stakes can be especially high. Take for example a grandmother raising grandchildren. Should one of those kids get in trouble, the entire family can face eviction. Should they be evicted “for cause,” the impact can be devastating — with the family being required to split up, move in with relatives, or live on the street. Collateral consequences may follow.
GBLS is well-known for having housing attorneys second to none. Yet the demand for their services by poor people overwhelms the supply.
The BHC, which hears anywhere between 200 and 225 evictions weekly, considers the Lawyer for the Day program a godsend. Thanks to Lawyer for the Day volunteers, some 80 per cent of the cases can be resolved successfully through mediation provided by BHC staff — without a judge having to get involved.
“The program has been successful beyond our wildest dreams,” says Robert Lewis, Chief Clerk Magistrate of the BMC.
A word about unrepresented landlords. . . they are frequently immigrants with limited English proficiency who depend on the rent to pay mortgages on owner occupied two or three family homes. Missed rental payments can put them at risk of foreclosure. Indeed, there are situations where landlord owners of small multi-family homes can be in a tighter financial situation than their tenants.
Often times this population of landlords need to be advised about what steps they must take to bring their property to the minimum state sanitary code, and assisted in determining the difference between a tenant complaint and what the law requires them to do.
This month, the Lawyer for the Day program will expand its services to low income landlords, starting with one Monday a month dedicated specifically to those cases. As Joanna Allison of the VLP points out, the mistakes that unrepresented landlords make on a procedural basis make it impossible for them to prevail in their cases — resulting in wasted filing fees for people who can least afford them and inefficiency for a busy court.
The Lawyer for the Day program is a model for legal services organizations to leverage the contributions of committed volunteers to preserve housing for a very vulnerable population and to conserve precious judicial resources. If we consider the fact that the cost of placing a family in a shelter is on average three times higher than the average government subsidy for families in Massachusetts, the program is also saving taxpayers money.
The program also illustrates the concept that lawyers can do well by doing good. Mary K.Y. Lee, a lawyer whose paid work involves both immigration and landlord/tenant matters, is another dedicated volunteer. She says that were it not for her volunteering for Lawyer for the Day at the BHA, she might not have gotten litigation experience so early in her career, and credits the program with helping her become “a better person and a better lawyer.”
We should all applaud all those involved for making the Lawyer for the Day program a continued success. That being said, we still confront the painful reality of overburdened courts and underrepresented litigants.
As the Task Force to Expand Access to Civil Legal Services in New York concluded, “private lawyers cannot fill the gap in services as the sheer numbers of needy and unrepresented litigants overwhelm the capacity of volunteer lawyers.” In response to that Task Force’s recommendations, the New York Legislature dramatically increased legal aid funding to provide for counsel in eviction and other cases involving basic human needs.
So while I say “keep up the good work” to all our volunteers, I look forward to the BBA expanding beyond its civil right to counsel study and pursuing new paths to assuring counsel to all those involved in cases involving basic human needs such as housing. Stay tuned.
Massachusetts courts continue to face difficult challenges. Hampered by extended backlogs, severe budget cuts, and prolonged hiring freezes, our hard working judges and dedicated court staff struggle every day to efficiently manage and provide a high quality of justice in thousands of legitimate cases involving important financial, personal and societal issues. Their efforts are additionally burdened by vexatious litigants who seem to regard the courts as their own personal complaint departments. This Article discusses the problem and calls upon judicial, legislative and bar leaders to put their heads together in an attempt to devise both fair and practical solutions to the problem.
What is vexatious litigation and why is it a problem in Massachusetts?
Defining vexatious litigation is difficult because litigants’ motives – whether in filing lawsuits to harass or control another party, litigating claims that are not legally recognized, or manipulating the system for personal gain – are quite diverse. Some common threads among vexatious litigants, however, are clear: their filings are often numerous, their claims largely without merit, and they impose enormous burdens on the court system and those required to respond to their claims.
In a recent article on “frequent fliers” of the court system, Massachusetts Lawyers Weekly newspaper reported that it had identified more than 450 complaints, appeals or other requests for relief filed in Massachusetts courts over the past three decades that were traceable back to just six litigants. In one notorious series of cases, a plaintiff filed at least one hundred and fifty separate lawsuits, resulting in more than ninety appeals, against his former girlfriend after their relationship ended. Ironically, a restraining order against that particular plaintiff failed to prevent him from using the judicial system to continue harassing the woman in question. The plaintiff’s repetitive and groundless actions have also been admonished by the Supreme Judicial Court, which presided over five of the plaintiff’s appeals for extraordinary relief in a single day. See Watson v. A Justice of the Boston Div. of the House Court Dep’t, 458 Mass. 1025 (2011).
Vexatious litigants also frequently turn their fire on judges, clerks, other court personnel and opposing counsel when cases are not resolved in their favor. For example, one such litigant brought over three hundred complaints in several states against public officials, various courts and judges due to events arising out of a series of traffic violations. See Azubuko v. McCabe, No. 1:108-CV-226, 2008 U.S. Dist. LEXIS 91798, at *1 (D. Mass. Oct. 27, 2008). Such conduct imposes inappropriate personal burdens on court personnel, diverts resources and time away from legitimate disputes, and subverts the purpose and basic functioning of our justice system. As the United States Supreme Court has noted in several per curiam decisions, “[t]he goal of fairly dispensing justice . . . is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests.” See In re Sindram, 498 U.S. 177, 179-80 (1989), In re Whitaker, 513 U.S. 1, 2 (1994), Whitaker v. Superior Court of California, 514 U.S. 208, 1447 (1995).
The Massachusetts courts and the Board of Bar Overseers have an array of weapons at their disposal that, for the most part, effectively deters lawyers from filing repeated, baseless lawsuits. The problem of vexatious litigation, however, does not appear to be primarily lawyer-driven. Instead, the vast majority of vexatious litigants are self-represented individuals, who need not be concerned about the spectre of Rule 11 sanctions or a complaint to the BBO. Even in federal court, where pro se plaintiffs are subject to Rule 11 sanctions, many vexatious litigants are judgment-proof, thereby blunting both the deterrent and punitive effects of monetary sanctions.
How Have Courts and Legislators Dealt with Vexatious Litigants?
Research suggests that Massachusetts courts and judges have inherent authority, rooted in common law, to take a variety of steps to curtail vexatious litigants. For example, a judge has inherent authority to dismiss a suit that is frivolous or designed to harass, or as necessary to prevent a fraud on the court. See, e.g., Munshani v. Signal Lake Venture Fund II, LP, 60 Mass.App.Ct. 714 (2004).
Another tool judges have at their disposal is the use of an injunction prohibiting a vexatious litigant from filing any new suit in a particular court. Although reasonably effective in curtailing vexatious litigation, injunctions are problematic in two respects. First, pre-filing bans curtail an individual’s constitutional right of access to the courts, so they should be used only when truly necessary and ordinarily should contain an exception allowing for the filing of a particular matter with prior judicial approval. Second, a determined plaintiff can often avoid the effect of an injunction by simply filing suit in a different forum. For example, one of the most prolific vexatious litigants in the Commonwealth avoided pre-filing bans in both Suffolk Superior Court and the United States District Court in Massachusetts by filing suits in courts stretching from New Jersey to Georgia. See Azubuko v. Boston Public Schools, 2006 WL 1373161 (D.N.J. 2006); Azubuko v. Berkshire Mut. Ins., 2003 U.S. Dist. LEXIS 26768 (N.D. Ga. Oct. 22, 2003). Unfortunately, Massachusetts does not currently have an effective administrative system in place to track problematic plaintiffs and enforce bans across its various divisions.
At least six states have enacted legislation to address the problem of vexatious litigants – California, Hawaii, Texas, Florida, Ohio, and Connecticut. These statutes include remedies ranging from a bond requirement to cover defendant’s costs (not unlike the bond requirement in G.L. c. 231, s. 60B, the medical malpractice statute), to pre-filing orders barring vexatious litigants from filing additional suits without prior leave of court.
One challenge in drafting legislation is defining precisely what constitutes a vexatious litigant. In California, for example, a litigant is “vexatious” if he meets any one of a number of tests, including repeatedly re-litigating a claim after a final, adverse judgment; repeatedly filing unmeritorious motions; or bringing at least five suits (other than small claims suits) in the prior seven years that have been resolved against him or permitted to remain pending at least two years without justification. Cal. Civ. Proc. Code § 391(b). In Ohio, by contrast, a litigant is vexatious if she “persistently engages in vexatious conduct in a civil action,” regardless of whether or not she initiated the suit. Vexatious conduct, in turn, is defined as behavior that either harasses another party, is unwarranted under existing law, or is designed to delay. Ohio Rev. Code Ann. § 2323.52(A)(2).
Whether based on the number of lawsuits filed or the litigant’s motives or conduct any fixed, statutory definition of “vexatious litigant” is bound to be both over as well as under inclusive when it comes to real world litigants. Perhaps this problem can be overcome by leaving the issue of whether a particular litigant is or is not vexatious to be determined by an appropriate judicial officer on a case by case basis, applying a set of pre-determined but somewhat flexible statutory factors.
What more can and should Massachusetts do to address the problem?
Courts, legislators and commentators from around the country have not agreed on the most effective means of curtailing vexatious litigation. But nearly all agree that the problem is real and continuing and, especially in difficult economic times, poses a genuine threat to the administration of justice and a cost to society. I urge members of the judiciary, our state legislators, and the leaders of the organized bar to convene a task force or other group to further study the problem and formulate recommendations for how we might best address the problem in Massachusetts.
Richard M. Zielinski is a Director in the Litigation group of Goulston & Storrs, P.C. He is also a past member of the Massachusetts Board of Bar Overseers, the Boston Bar Association Council, and a Fellow and past State Chair of the American College of Trial Lawyers (ACTL). Richard wishes to thank Alana Van der Mude and Keerthi Sugumaran, associates at Goulston & Storrs, for their valuable assistance in researching and drafting this Article.
By Sara E. Silva
Everyone knows that our daily actions are sometimes recorded. Our Fast Lane accounts create a record of every toll we pay. When we bank or shop, surveillance cameras or credit card payment records may reflect where we were. But when we exit the Pike, or leave the bank or the store, we do not expect the government to continuously track our movements to more private and personal places: doctors’ offices, houses of worship, daycares, homes.
Cell phone location data allows the government to do exactly that, and has become an incredibly powerful tool for law enforcement. In the past year, cell phone carriers responded to 1.3 million demands from law enforcement for subscriber information and location data, often without a warrant, probable cause, or any judicial oversight whatsoever. See Eric Lichtblau, More Demands on Cell Carriers on Surveillance, New York Times (July 8, 2012), available at http://www.nytimes.com/2012/07/09/us/cell-carriers-see-uptick-in-requests-to-aid-surveillance.html?pagewanted=all. After United States v. Jones, 132 S. Ct. 945 (2012), however, criminal defense lawyers have greater room to argue that the Fourth Amendment protects location information. Jones held that the warrantless installation of a GPS unit to track the movements of a vehicle violates the Fourth Amendment. Although the majority opinion was based on the physical trespass involved, five Justices agreed that probable cause and a warrant are required when law enforcement uses vehicle tracking technology to aggregate a person’s movements over time. Id. at 955-56 (Sotomayor, J., concurring); 964 (Alito, J., concurring in the judgment).
A cell phone can be the equivalent of a tracking device installed on our bodies. Eight in ten American adults own a cell phone. See Pew Research Center, Americans and Their Cell Phones (Aug. 15, 2011), available at http://www.pewinternet.org/Reports/2011/Cell-Phones.aspx. Most cell phones come equipped with GPS chips, which allow cell phone providers to obtain real-time GPS data from the phones carried by their subscribers. Even phones without GPS can provide highly accurate location information, however. When turned on, cell phones automatically and regularly communicate with the towers that serve their provider networks to ensure that they are connected with the tower with the best reception. Through these communications, the phones transmit certain pieces of data such as the strength, angle and timing of the signal. This data, when analyzed, discloses the location of the phone at the time of the communication; when triangulated between two or more towers, the location data can be highly accurate. How frequently a phone reveals its location varies by provider, but it occurs automatically multiple times a minute, providing a comprehensive record of one’s movements. What may be most disturbing is that to transmit this information, the phone need not be in use. It just needs to be on. There is no way for the phone’s owner to know when these communications occur, and no way, short of shutting the phone off, to stop them from happening.
Providers use this data for business purposes – to determine where to build new towers, or how and where their subscribers use their devices. This means both that location data remains accessible for a long time and that its accuracy is constantly improving to enhance its usefulness. Increased numbers of cell towers also enhance the precision of location data. Whereas earlier triangulated data may have been able to narrow a phone’s location to a particular block, some commentators believe that it can now surpass GPS for accuracy in certain areas. See, e.g., Statement of Prof. Matt Blaze before House Subcommittee on Crime, Terrorism and Homeland Security at 15 (May 17, 2012), available at http://www.crypto.com/papers/blaze-gps-20120517.pdf.
Courts in Massachusetts have long permitted law enforcement to obtain historical cell phone location data simply upon a showing that the information is “relevant and material to an ongoing criminal investigation,” assuming that “there is nothing [about tracking data] that is any more incriminating or revealing than what could be gleaned from the activation of a pen register or from physical surveillance,” and that “outside of the home it is doubtful that the tracking of a cell phone has any Fourth Amendment implication whatsoever.” See In re Applications of the United States of America for Orders Pursuant to Title 18, United States Code, Section 2703(d), 509 F. Supp. 2d 76, 77-79, 81 (D. Mass. 2007) (Stearns, J.).
These assumptions are ripe for challenge after Jones. Warrantless access to GPS cell phone information is likely unconstitutional. Jones, 132 S. Ct. at 955-56 (Sotomayor, J., concurring); see also id. at 964 (Alito, J., concurring in the judgment). Like GPS information, triangulated cell phone location data “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Jones, 132 S. Ct. at 955-56 (Sotomayor, J., concurring) (citations omitted). Such intimate detail is practically impossible to aggregate through visual surveillance. See id. at 956. And the ease with which law enforcement can access it renders it highly “amenable to abuse.” Id.
Since Jones, at least one Superior Court Justice has required a warrant for cell phone location information. Commonwealth v. Pitt, 29 Mass. L. Rptr. 445, *3 n.5, *8, *10 (Mass. Super. Ct. Feb. 23, 2012) (Cosgrove, J.) (location data reveals “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, the synagogue or church, the gay bar, and on and on . . . . [T]he extent of this potential incursion . . . unquestionably implicates Fourth Amendment privacy rights”) (quoting Jones, 132 S. Ct. at 955) (Sotomayor, J. concurring). The federal court is also poised to revisit the issue. See In the Matter of the Application of the United States of America for an Order Pursuant to Title 18, United States Code, Section 2703(d) to Disclose Subscriber Information and Cell Site Information, __ F. Supp. 2d. __, 2012 WL 989638, *1-2 (D. Mass. March 23, 2012) (Collings, M.J.).
Cell phone location data can tell the government precisely where we have been every minute of the day. Defense counsel should use Jones to press the argument that law enforcement cannot constitutionally mine this potent source of information without probable cause and a warrant.
Sara Silva, a partner with Collora LLP, represents individuals and corporations in the areas of white collar criminal defense and complex civil litigation.
By Richard J. Yurko
Each of us lives in a digital soup where, every day, we leave an online record of our activities. For the convenience of an ATM card, we leave traces of our banking transactions. For the social benefit of “connecting” with acquaintances, our Facebook, Twitter, Linked-In, email, and other accounts record what we look at and digitally touch. For the sake of a few cents off at the store, our loyalty cards compile a rich history of our shopping habits. For the sake of our iPhone, we let Apple know our location virtually every moment of the day. This digital soup not only has practical implications for everyday life, but also potentially changes the landscape of two core legal doctrines, the constitutional right to be secure in our private affairs from government intrusion and the common law right to be let alone from private actors. These issues recently surfaced within a divided United States Supreme Court.
Thousands of digital data points can be and are being aggregated, cross-referenced, and enriched with still other data, like public records, our credit scores, and political donations. See, e.g., Sullivan, “Data Snatchers! The Booming Market for Your Online Identity”, PCWorld.com (June 26, 2012); Sengupta, “Should Personal Data Be Personal?”, New York Times (February 24, 2012). This enriched data is, in many respects, more thorough, more accurate, and more detailed than any file ever compiled by J. Edgar Hoover. It is possible that we can be known better by these data aggregators than by our own friends and kin.
I am annoyed when data aggregations are used to try to sell me a particular product that just happens to be on sale at a store on my walk to work. Individually, I am not much troubled by the use of this data by the company that first collected it, which may track what brand of over-the-counter headache medicine I buy so that it can offer me an appealing coupon. I am much more troubled if the first party that collected the information then sells it to third parties with unknown motivations – – commercial, political or nefarious.
Annoyance and displeasure give away to apprehension when purchased data can be enriched and cross-indexed with other information and then used by powerful corporate interests without my knowledge or anticipation. Moreover, what is to prevent the government from routinely accessing or purchasing such detailed, enriched data aggregations for any purpose? And if the government could buy such data aggregations, what is to stop the government from simply requesting and obtaining the same material from private aggregators, without any subpoena, warrant or judicial oversight?
Indeed, the availability of this detailed information can be used to undermine the underpinnings of essential constitutional safeguards or the common law right to privacy. Although, certainly, the constitutional right to privacy is substantially different from the common law right to be let alone, they share one common foundation. Often, both common law and constitutional principles are grounded on the “reasonable expectations” of the parties and, with respect to privacy, those expectations may be less reasonable if intensely personal data is freely available to anyone who wants to buy it.
That issue was recently raised in United States v. Jones, 132 S. Ct. 945 (2012). In Jones, the majority opinion, authored by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Sotomayor, avoided complex issues arising from the warrantless attachment of a GPS tracking device to a suspect’s automobile by resorting to the 18th Century common law of trespass. The majority concluded that, because the installation necessarily involved a trespass to the suspect’s property right in his vehicle, the resultant search and seizure required a warrant. A four-justice concurrence would have found the search and seizure impermissible without a warrant, on a different ground, because it violated the suspect’s “reasonable expectation of privacy,” relying on Katz v.United States, 389 U.S. 347 (1967). The concurrence, authored by Justice Alito and joined by Justices Ginsberg, Breyer, and Kagan, rejected the majority’s resort to trespass law as too narrow a basis for principled application going forward.
By far, however, the most provocative question in Jones was raised by Justice Sotomayer in her lone separate concurrence. Justice Sotomayer joined with the majority but she wrote separately, I believe, to raise a question. She was apparently unwilling to join the four-justice concurrence, applying the “reasonable expectation of privacy” test, because she suggested that our notion of privacy may have to undergo reevaluation in a world in which, with varying degrees of inattention and consciousness, we tolerate third parties collecting a wealth of personal data about us.
Questions about the collection, retention, supplementation, use, misuse, sale, dissemination, and extensive re-use of detailed personal data could be thrashed out in Washington, in fifty state legislatures across the country, or through regulations promulgated elsewhere in the world. Indeed, there are conversations on these subjects at the Federal Trade Commission, in some state legislatures, and in the European Union. There is an outside chance that, just the way child labor laws, worker’s rights, consumer rights, and economic justice notions were debated and decided in the state legislatures and then again in Congress, this would happen on questions of privacy in the digital age. The FTC has issued papers in this area and may well act. See Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers (FTC Report, March 2012); see also Consumer Data Privacy in a Networked World, The White House, (February 2012) (recommending legislative and regulatory action).
But I am not optimistic that these issues will be decided quickly or at all by legislative or regulatory means. The corporations that collect, dissect, enrich, and/or package your personal data for resale are some of the most powerful companies in the world. Rashid, “Google, Microsoft Survival Conflicts With Internet Data Privacy,” eWeek.com, February 7, 2012. Quite possibly, in their own enlightened self-interest, they may block legislative or regulatory action. Moreover, one can question, in this rapidly evolving digital world, whether any law or regulation can sufficiently address the myriad ways in which data can be collected, aggregated and re-used. Any regulation on, say, the use of “cookies,” could be outmoded even before being promulgated or implemented. Courts, by contrast, exist to decide questions that arise in disputes between contending parties and decisions on principles in those cases can extend across technological platforms. That is how the common law developed and, to some extent, how constitutional law has progressed as well.
Well over a century ago, Louis Brandeis and Samuel Warren wrote their seminal piece articulating a right to privacy in the Harvard Law Review. At that time, the danger seemed to come from yellow journalists writing about and photographing private persons to satisfy what was characterized as a public lust for gossip. Brandeis and Warren wove together hitherto unconnected strands of cases to fashion an argument for a common law right to privacy. By giving such a name to the “right to be let alone,” they gave lawyers and judges a means to articulate the right to control the intimate details of one’s own life. The premise of Warren and Brandeis, however, was that privacy was like the water from a spigot with the individual controlling the spigot. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890). They said, “The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.”
In the last two decades, rapid technological change and remarkable inattention by the public at large have seemed to cede control of that spigot to Facebook, Apple, and hundreds of other less-well-known companies. If these corporations now control the spigots of our personal details shared online, can the government hand be far away? If the government is buying and using the data, will we ever know? If the government is buying the data, should there be some control on that? Conversely, if we see the greater danger as coming from misuse by private parties of digital data aggregations, is government actually the solution, not the problem, by regulating how and when such information can be collected and shared?
Whether in the role of common law jurists or constitutional arbiters, it may rest with judges to take the first stab at re-examining the right to privacy, or the “reasonable expectation of privacy,” in a digital world. The right to be let alone from government interference has, obviously, a constitutional dimension. The right to be let alone from private interference, as a common law principle, applies to private as well as governmental actors.
In conversations in judges’ chambers across the country, the judicial branch may be asked by litigants to return some measure of control of the spigot of private data to the individual. It should be a lively discussion between judge and law clerk. Judges, generally a generation older than their clerks, will remember a time when the public reacted with shock to governmental dossiers and enemies’ lists. Law clerks, some of whom may have grown up in the digital soup and the stunning trade-off between privacy and convenience, may have an entirely different view. Together, they may be able to fashion a new understanding of privacy where incidental disclosure to a third-party providers of services simply through the use of everyday electronic gadgets does not eliminate the broader right to be “let alone.” That, at least, is my hope, so that we can move towards the new understanding of privacy rights in a digital era of pervasive commercial tracking.
Sealing the Virtual Envelope: Protecting Attorney-Client Privileged Email in Criminal InvestigationsPosted: September 12, 2012
By Michele L. Adelman and Jennifer S. Behr
The use of email permeates every aspect of our lives – including communications between attorneys and clients. No longer does an attorney provide all advice to a client in a written memorandum or letter – clearly marked “privileged and confidential.” Now, such advice is often provided in an email chain that lacks any indicia of the communication’s privileged nature.
Prosecutors often seek to obtain a suspect’s communications with others as part of a criminal investigation – and what is better than a written communication such as email? Moreover, with court approval, prosecutors may obtain a suspect’s email directly from a service provider (such as Google) without the suspect’s knowledge. It is possible, and often likely, that a suspect’s email contains privileged communications, which may be difficult to identify.
Prosecutors have always had to identify privileged communications during the execution of search warrants. But pulling a folder of written memoranda or correspondence clearly labeled “privileged and confidential” is much easier than sifting through an email chain starting with “what do you think?” Despite the potential magnitude of the problem, there are few published opinions and scholarly commentaries addressing the issue. As set forth below, prosecutors and defense attorneys should construct a system to protect attorney-client privileged email messages.
Prosecutors may obtain emails directly from service providers.
Both federal and state laws allow prosecutors to obtain a criminal suspect’s emails directly from service providers without notice to the suspect. Section 2703(a) of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. (“SCA”) limits the means by which a prosecutor may obtain email from service providers. Thus, a search warrant is required for unretrieved email stored less than 180 days, while a search warrant or simply a court-order or subpoena with notice to the subscriber is required for retrieved email or unretrieved email stored more than 180 days. Massachusetts similarly requires a search warrant or grand jury or trial subpoena to obtain email from service providers in criminal matters. See M.G.L. c. 276, § 1B; M.G.L. c. 271, § 17B. Because these laws are not limited to situations in which a suspect has not yet been charged with a crime, the government may secretly seize a defendant’s email even after charges have been brought.
Email accounts contain privileged communications.
Given the widespread use of email by attorneys, criminal suspects’ email accounts may well contain communications covered by the attorney-client privilege. See, e.g., United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (noting that after executing search warrants for offices and email accounts case agents “had access to approximately 60,000 email communications from or to attorneys representing [defendants]”).
This is especially true where the suspect has already been charged with a crime and obtained counsel. For example, in a recent case in Suffolk Superior Court, Commonwealth v. Kishore, SUCR2011-11006, the Massachusetts Attorney General’s Office used a search warrant to obtain emails directly from Google after the defendant was indicted for an alleged Medicaid fraud kickback scheme. The email account contained hundreds of privileged emails.
The challenge of identifying privileged communications.
Even if prosecutors assume that a suspect’s email contains privileged communications and endeavor to protect them, it is not easy to identify privileged emails. While the use of search terms may be a good first step – searching for words such as “law,” “legal,” and “advice” will not reliably capture all privileged emails. Moreover, even if a prosecutor is aware of the suspect’s lawyer’s or law firm’s name, searching for these names will not be enough. Emails from outside consultants, accountants, and experts working with a suspect’s attorneys may also be privileged. And the presence of these third parties on an otherwise privileged email chain will not destroy the privilege. Cf. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Nonetheless, there are ways to minimize the risk that the privilege will be violated.
Some proposed solutions.
Protecting attorney-client privileged emails during criminal investigations is easier where the suspect has already been charged and is represented by counsel. In such cases there is little danger that the government will undermine its investigation by revealing that it intends to obtain the suspect’s emails. In such circumstances, prosecutors should strongly consider serving a subpoena on defense counsel, requesting production of defendant’s emails, except in cases where countervailing factors make this impractical – e.g., evidence of a significant risk that the defendant will delete emails or that defense counsel will not make a full production. Alternatively, prosecutors may subpoena emails directly from service providers with notice to the defendant (eliminating the risk of deletion or incomplete production), and defense counsel may be given the opportunity to review the emails in the first instance, create a privilege log, and produce the responsive non-privileged emails. Even if prosecutors decline to permit defense counsel review, defense counsel will at least be on notice that the defendant’s emails are being seized. Counsel may then approach the court to make sure adequate protections are in place before privileged emails are in the prosecution’s hands.
It is more challenging to devise a system to protect privileged communications where a suspect has not yet been charged and search warrants are used. The key in these cases is for the government to plan ahead. As the Department of Justice suggests, “Agents contemplating a search that may result in the seizure of legally privileged computer files should devise a post-seizure strategy for screening out the privileged files and should describe that strategy in the affidavit [supporting the search warrant.]” Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, ch. 2(F)(2)(b) (3d ed. 2009) available at http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. There are basically three choices in this situation: in camera review by the presiding judge, review by a special master, or review by a filter or “taint” team of prosecutors or investigators not otherwise involved in the prosecution. Id. Given the scarcity of judicial resources, the only realistic choices are usually using a special master or a filter team, and filter teams are preferred by prosecutors and judges in the majority of cases, because they are faster and far less expensive. Id.
Filter teams have been accepted by courts. For example, in U.S. v. Taylor, 764 F. Supp. 2d 230 (D. Me. 2011), prosecutors obtained a defendant’s emails from Microsoft via search warrant after the defendant was indicted, knowing counsel had been appointed. When the reviewing agent discovered emails between the defendant and his attorney, he contacted the prosecutor. The prosecutor went to court to get approval of a “filter agent” procedure “whereby an AUSA uninvolved with the prosecution would review the e-mail materials to cull out any potentially privileged materials before the investigating agent and the prosecuting AUSA received them.” Id. at 233. Once the privileged emails were identified, they were provided to defense counsel. The defendant objected to the procedure, but the magistrate judge permitted it. Defendant’s motion to suppress was also unsuccessful. While the court recognized that “there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor’s office . . . the government behaved reasonably” in the case by seeking instructions from the court before reviewing the emails. Id. at 234. The judge recognized that it may have been preferable for defense counsel to review the emails first and create a privilege log, however defense counsel had not suggested that procedure. Id. 234-5.; see also United States v. Vogel, No. 4:08-CR-224(1), 2010 WL 2268237, at 7 (E.D. Tex. May 25, 2010) (approving filter agent approach).
But filter teams may be only part of the solution. Defense attorneys and their agents should assist in protecting a client’s privileged communications by more carefully labeling their communications as “Privileged and Confidential.” While there is no guarantee that using the magic words “Privileged and Confidential” will suffice, it would go a long way towards flagging communications as privileged.
Defense counsel and prosecutors should be aware of the risk to attorney-client privilege when criminal suspects’ email accounts are obtained without their knowledge and should work together to construct a plan to protect privileged communications.
Michele L. Adelman is a partner in the business crimes group at Foley Hoag, LLP. She is a member of the BBA Criminal Law Section Steering Committee.
Jennifer S. Behr is an associate in the business crimes group at Foley Hoag, LLP.