The Attorney-General’s efforts to cover up the mishandling of privileged and confidential documents in the Flint water case should not be condoned by a Michigan judge, a defendant in the case says in a recent legal filing.
Judge Elizabeth Kelly is receiving feedback on her November ruling, known as a protective order, which said the state’s prosecutors must set up an independent team to review millions of documents seized by the state related to the controversy – documents that include attorney-client communications.
Judge Kelly made the ruling at the request of state employees charged with felony offenses relating to the Flint water controversy, who like Governor Snyder, brought this breach of due process rights to the court’s attention.
On Dec. 10, the Attorney-General’s legal team filed a request to the judge to have her decision reversed – a pleading known as a “motion for reconsideration.”
Attorneys for Nick Lyon, Governor Snyder’s former state health director, have filed a response supporting the judge’s ruling. They further asked the court to order the parties to work together to design and implement a plan for the taint review “as quickly, efficiently, and fairly as possible.”
“The situation in which the prosecution now finds themselves is not a surprise,” said a filing by attorneys representing Lyon. “They were warned by counsel for Mr. Lyon, counsel for Mr. Snyder, and members of their own department that they had improperly seized privileged communications and should implement a taint team to ensure that the documents were screened out of any review by the prosecution team. These warnings fell on deaf ears.
“The prosecution now claims that such a task is a virtual impossibility, alleging an outsized estimate of three years, and $48 million dollars to implement the taint team. These assertions are unsubstantiated and wrong. The prosecution provided the court with no specifics regarding the scope of the seized documents, such as a breakdown of the volume of documents that were scanned versus those that were collected electronically from servers or email inboxes. Far from offering new information to the court, the prosecution relies on unsubstantiated hyperbole and inflated figures in an attempt to avoid having to rectify their own decision to seize privileged documents.”
Jason Brown, a spokesman for Gov. Snyder’s legal team, also says the Attorney-General’s motion for reconsideration is “hogwash.”
“The People’s representation that this will take three years, 100 attorneys, and up to $50 million is ridiculous,” Brown said. “There would be no reason to not stage this review other than to cover up a massive mistake on the part of the Attorney General’s office. The prosecution’s motion for reconsideration is just a rephrasing of their original arguments and an attempt to scare the court by talking about the scope and cost of the taint team review in highly unrealistic terms. The motion should fail as it is merely an effort to let themselves off the hook for ignoring legal warnings about violating people’s constitutional rights.”
A decision by Judge Kelly on the case is expected early in 2022.