Prosecutors Appeal Order on NECC Emails

By Walter F. Roche Jr.

Federal prosecutors are appealing a highly critical decision ordering them to complete a review of some 630,000 emails recovered from the defunct drug compounding firm blamed for a nationwide fungal meningitis outbreak.
The appeal, scheduled for a hearing next week, comes in the criminal case of the former owners and employees of the New England Compounding Center, the Framingham, Mass. firm which shipped thousands of fungus laden vials of an injectable steroid to health providers in more than 20 states.
In the six-page ruling now being appealed, Magistrate Judge Jennifer Boal strongly criticized federal prosecutors for failing to complete the review as ordered.
Citing the government's claim that it didn't have time to review the emails, Boal wrote, "this flies in the face of the government's characterization of the importance of this case as well as the number of agencies involved."
She noted that although the documents had been obtained under search warrants in 2012, government lawyers did not disclose until early November of last year that it had not completed the review and did not intend to do so.
Prosecutors had been ordered to review the emails to determine whether they contained any privileged information such as communications with attorneys. Some of those emails were then supposed to be turned over to lawyers for the defendants.
Boal in her decision flatly rejected claims by prosecutors that she lacked the authority to order the reviews be completed by a Dec. 10, 2015 deadline.
And, she added, that had the government wanted additional time it should have asked for it.
Instead, she wrote, "On December 3, 2015, approximately four months before the commencement of trial, the government announced that it was abandoning its longstanding discovery protocol in this case and foregoing review of the approximately 630,000 emails in its possession that were identified."
She noted that if there was any ambiguity in her order, it was effectively eliminated in a subsequent order from U.S. District Judge Richard G. Stearns. Stearns will hear arguments on the appeal Wednesday.
Boal also cited the argument of defense lawyers that they were entitled to the emails to find out if they contained any exculpatory evidence that would aid their clients.
As an example Stephen Weymouth, the attorney for defendant Glenn Chin, said that the emails could contain information showing that the defendants were concerned that outside consultants were not properly testing the drugs. Chin and former NECC owner Barry Cadden are facing the second degree murder charges.
In a brief supporting Boal's order, lawyers for the defendants charged that prosecutors' appeal was untimely and "the government indisputably failed to comply with its obligations."
 The 25-page defense brief also notes that prosecutors raised no objections to Boal's order in the 14-day period following its issuance.
The dispute comes as the scheduled April 4 trial date is fast approaching in the charges, ranging from second degree murder to  mail and wire fraud charges brought against 14 owners and employes of NECC.
State and federal regulators concluded that NECC shipped fungus ridden methylprednisolone acetate to health care providers in 2012. The drugs, which were supposed to be sterile, were injected into the spines and joints of thousands of patients.
The resulting fungal meningitis outbreak sickened 778 patients, killing 76 of them, federal court records show.
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