Statement: Court of Appeals Denies AG’s Motion on Taint Team

A statement from Brian Lennon, Gov. Rick Snyder’s legal counsel from Warner Norcross + Judd.

We applaud the decision of the Michigan Court of Appeals denying the prosecution cover for its breathtaking violation of due process rights of all the Flint Water defendants.

Either stunning incompetence or the blind political motivation to get a conviction by hook or by crook, led the prosecution to completely ignore screening for privileged materials even though members of their own team were raising red flags. Then, when ordered to stop reviewing and disclosing privileged materials, the prosecution had the gall to complain that it will take too much time and cost too much money.

When the prosecution seized thousands of privileged documents from the files of Governor Snyder’s legal counsel and then failed to implement or offer any solution for preventing an invasion of Governor Snyder’s or the other defendants’ legal privileges, it is far from an abuse of discretion for the circuit court to impose a reasonable solution.  As the prosecution itself admitted, once privileged documents are reviewed by the prosecution, “the bell cannot be unrung.”  (People’s Mot for Recons 13.)

The use of an independent taint team ordered by Judge Kelly in November is reasonable, especially when the relevant but privileged documents were already reviewed, identified on privilege logs provided to the Todd Flood-led Office of Special Counsel, and properly protected by Assistant Attorneys General on the opposite side of the Attorney General’s so-called “conflict wall.”  The taxpayers have already paid for this process once.  When SC Hammoud and her team chose to execute search warrants on the other side of the conflict wall and seized Governor Snyder’s attorney-client privileged communications with his lawyers and his lawyers’ work product, among other records they should never have reviewed, they were obligated to employ some type of screening method.

The prosecution complains that the relief ordered by Judge Kelly is unprecedented, but the only thing unprecedented is the prosecution’s obstinate refusal to take even the most basic step to protect the legal and constitutional rights of defendants. This politically motivated philosophy of winning a  case by any means and at any cost should send chills down the spines of every resident of Michigan, and particularly government employees.

Taint teams are so well-recognized as an essential method for protecting a defendants’ privilege that the U.S. Department of Justice treats it as standard practice when privileges are at risk.  Legions of courts have recognized this as a valid method of protecting privilege, and some have even questioned whether it is protective enough.

The prosecution’s other argument—that the review process will be too burdensome—has no basis in reality.  To start, the actual orders entered by the Circuit Court do not dictate how many of the documents in the prosecution’s possession must be reviewed or how—it says nothing about what the review process would be.  Because the prosecution has refused to comply with Judge Kelly’s November order, the decisions of what documents would need review and how exactly to screen them have yet to be made.  This is stunning, particularly when the prosecution has hired an experienced outside e-discovery vendor to assist with this process.

Moreover, the prosecution’s speculations about what the review would entail presumes a process that ignores basic e-discovery methods and technology and conjures an astronomical project cost that defies simple math.  This tactic of over-inflating their burden in an effort to avoid necessary discovery tasks has been roundly condemned by other courts.

SG Hammoud and her team need to hire a taint team to get on with this privilege review forthwith.  They have delayed even identifying a taint team or creating a review protocol for far too long.  Alternatively, and to save the taxpayers tens of millions of dollars on this fatally flawed prosecution, she should dismiss the charges against Governor Snyder and all the defendants whose due process rights and constitutional protections have been violated.