Attorney charged with attempting to bribe a chief of police
By Pat Murphy
BridgeTower Media Newswires
BOSTON — A federal judge in Boston has approved the use of a government “filter team” as an appropriate means of protecting privileged communications in the search of the contents of the cellphone of a Somerville attorney indicted in an alleged bribery scheme.
On June 24, 2022, FBI agents arrested attorney Sean T. O’Donovan, on charges that he engaged in an attempt to bribe Medford Chief of Police Jeff Buckley as part of an effort to secure the city’s approval of a recreational marijuana dispensary for a client.
During an earlier phase of the investigation, the FBI had seized O’Donovan’s cellphone pursuant to a search warrant.
In its search warrant application, the government proposed using a so-called “filter team” protocol as a means for reviewing and screening out any materials on the phone protected by the attorney-client privilege.
As proposed by the government, a filter team made up of an assistant U.S. attorney, a legal assistant, and FBI agents would review the phone’s files to identify privileged or potentially privileged materials. The filter team would turn non-privileged material over to the investigative team. Meanwhile, materials deemed privileged would be withheld from the investigative team.
“Potentially privileged” materials or privileged materials capable of redaction would be provided to the court for a final determination as to scope and means of disclosure.
O’Donovan immediately responded by filing an emergency motion to stay the government’s search of his privileged communications, arguing that any filter team review of attorney-client communications on his phone would constitute a per se violation of the attorney-client privilege.
As an alternative, O’Donovan proposed that he would have the opportunity to make initial privilege determinations, forwarding non-privileged materials to the investigative team. Materials that the lawyer deemed privileged would be identified in a privilege log. The government would then be afforded the opportunity to contest his privilege determinations.
However, on Oct. 17, U.S. Magistrate Judge Donald L. Cabell denied O’Donovan’s emergency motion for relief, approving a “modified” filter team protocol proposed by the government.
Under the government’s modified proposal, an FBI forensic analyst not associated with either the investigative team or the filter team would first run certain search terms against the content of the phone to identify materials relevant to the criminal case without reviewing any of the underlying materials themselves.
Materials not captured by the search terms would be deemed “non-responsive” and be returned to O’Donovan without any further government review.
Under the government’s modified plan, the filter team would review the “responsive” materials, segregate any materials it identified as privileged and non-redactable, and return those materials to O’Donovan.
The filter team would then consult with O’Donovan with respect to responsive materials identified as “not privileged, privileged but redactable, or otherwise excepted from protection.” O’Donovan would then have five business days to review those materials and raise any objections to disclosure. Any “non-disputed” materials would pass to the investigative team at the close of the five-day period.
On the other hand, “disputed” materials would be submitted to the court under seal for a final determination.
In addressing O’Donovan’s emergency motion, Magistrate Judge Cabell observed that the 1st U.S. Circuit Court of Appeals has “tacitly” approved the use of filter teams and that various courts within the circuit “have also presumed without issue or elaboration that the use of a filter team to segregate non-responsive or privileged communications does not run afoul of any established legal precedent.”
O’Donovan argued that such precedent within the 1st Circuit and in the majority of other circuits failed to address his specific challenge to the filter team process.
Instead, the defendant urged Cabell to follow a 2019 decision from the 4th U.S. Circuit Court of Appeals.
In In re: Search Warrant Issued June 13, 2019, a panel of the 4th Circuit struck down the government’s use of a filter team to inspect privileged attorney-client materials seized from a Baltimore law firm. The panel concluded that the use of filter team protocol in that case was error because, among other things, the team’s creation “inappropriately assigned judicial functions to the executive branch” and the approach contravened “foundational principles that protect attorney-client relationships.”
But Cabell found the 4th Circuit’s decision distinguishable on the basis that in that case “serious injury resulted from the filter team intruding into privileged, nonresponsive communications between other lawyers and clients, the overwhelming majority of which had nothing to do with the government’s investigation.”
Instead, Cabell concluded that the government’s proposed modified proposal in O’Donovan’s passed muster because “the investigative team would never see any non-responsive materials or responsive materials identified as privileged, and would not see any other responsive materials unless O’Donovan first assented to their disclosure or the court determined that disclosure was appropriate.”
O’Donovan has been indicted on two counts of honest services wire fraud and one count of bribery concerning programs receiving federal funds.
According to prosecutors, in February 2021 O’Donovan approached a close relative of Buckley, offering to pay $25,000 to speak with the chief about his client’s forthcoming application for a host community agreement with Medford. The relative informed Buckley of O’Donovan’s offer and the chief immediately alerted federal authorities of the alleged bribe.
