DETROIT — The Michigan Attorney General's office must create a "taint team" to independently review documents seized from state offices during the Flint water investigation that could delay its prosecutions for an estimated two years following a recent court decision.
A three-judge panel of the Michigan Court of Appeals on Thursday rejected a request by Attorney General Dana Nessel's office to stop a judge's order requiring prosecutors to quit using certain documents until an independent team reviews them for any violation of attorney-client privilege.
Presiding Court of Appeals Judge Mark Cavanagh said in a Thursday order that the panel denied Nessel’s appeals request for a “lack of merit,” keeping in place Genesee County Judge Elizabeth Kelly’s order which stated the attorney general's office must keep working on the creation of the taint team while it appeals her decision.
The battle over the documents has been a sticking point since nine former state and city officials, including former Gov. Rick Snyder, were charged more than a year ago with crimes related to lead-tainted water in Flint and Legionnaires’ disease cases in the region. The appeals court order mentioned the criminal case against Nick Lyon, the former state Health and Human Services director under Snyder.
Nessel's office has said the creation of a independent review team would "require tremendous time and resources" because it would involve manually reviewing more than 20 million documents from the investigation that started under previous Attorney General Bill Schuette.
In a Jan. 28 filing, Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy estimated it would take a team of more than 100 lawyers working for "over two years" to complete such a review — or past the end of Nessel's first term in office. The projected cost would be nearly $37 million, they said.
"We are evaluating our options in light of the recent ruling from the Court of Appeals, and we will continue to abide by Judge Kelly’s order," Hammoud said in a Friday statement. "A taint team will undoubtedly require additional time and resources, but sustained efforts by the defense to deny justice do not diminish our commitment to fight for the people of Flint."
The state Supreme Court would be the next level for appeal.
State investigators armed with search warrants were accused of snatching documents that included confidential communications between lawyers and Snyder administration officials who were being sued in separate proceedings for alleged acts in Flint.
Snyder, Lyon and others cried foul, saying the Attorney General’s office didn’t set up a taint team to ensure that using the documents wouldn’t violate attorney-client privilege. Prosecutors in the Attorney General’s office were warned by other lawyers in the office that they likely had acquired records protected by attorney-client privilege.
Ronald DeWaard, an attorney for Lyon, said there was a mistake made of sweeping up all the government's documents that included the attorney-client privileged material. The taint team review, he said, ensures that prosecutors do not see those privileged communications between defense lawyers and their clients.
"We welcome yesterday’s ruling. We have been asking for this process for months and it should have been done as soon as the AG’s office had the documents in their hands," DeWaard said.
"The AG’s own staff warned that the taint team is needed and it has been unfair that Director Lyon, Gov. Snyder and the others have had to wait this long for the prosecution to do what was needed to be done from the beginning. We look forward to this ruling and other legal issues bringing this matter to a close as soon as possible for our client."
