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Thursday, July 30, 2009
Who’s the leaker?We're all so interested in the names being linked from the 2003 tests, but no one (besides me and a few other lawyer types) seems all that interested in who's leaking the names. I wanna know, both as a lawyer -- and for as much as complain about the legal system, I still hold my duties as an officer of the court in pretty damn high regard -- and as a baseball guy.
You'll recall that the reason the names are still out there is because, while some Nero at the Players' Association fiddled, federal agents, acting on a search warrant in connection with the BALCO case, seized the 2003 test results from their custodian, Comprehensive Drug Testing. The warrant and its execution has been litigated to death (a great summary of it all can be found here), and the matter is still pending on appeal.
One's first thought might me to simply go to the docket and write down the names of counsel of record to see if one could guess who's leaking. If one did that, however, one would realize that there's no shortage of suspects. In addition to baseball and the union and BALCO and the government and everyone else with a direct interest in the case, there are multiple amici curiae who have weighed in as well. The U.S. Chamber of Commerce, labor groups, privacy advocates and folks like that, all of whom will be impacted by a ruling that has to do with workplace drug testing and the handling of sensitive medical information. In light of that, it's not hard to imagine that several dozen lawyers involved in the case itself are privy to the list, not to mention lawyers and others in-house at the various parties. And that's before you get to the judge, the law clerks, and anyone else who fits the description "lawyers and others connected to the pending litigation."
One of 'em -- probably more than one of 'em -- feels that leaking information subject to a court order is worth their while. Maybe they have an axe to grind against the players. Maybe they're pro-player and have some messed up, double-secret-reverse-psychology motive for outing the ones on the list. Maybe they just get a woody from seeing the information they leaked in the news. There are as many possible motives as there are suspects.
I wanna know who's doing it. Specifically, I want the judge to get good and angry and sic the feds on the matter to suss out who's doing it. Short of that, I want someone in the investigatory side of the media to take it upon themselves to find out who's leaking. Short of that (and I know that's not going to happen because the media isn't going to rat out one of their sources), anyone with ideas as to how to answer the question is encouraged to drop me a line. We can call it citizen journalism or angry mobism or whatever you want, but at the moment I find determining the identity of the leaker(s) to be a far more interesting and pressing question than who the rest of the famous 103 are. And just so no one is uncertain on this point and accuses me of being a tricksy Hobbitses, let me be 100% clear: If I learn who it is, I'm tellin'.
Maybe that seems a bit heavy handed on my part. But hey, like LaTroy Hawkins said, "it's America, dude."
UPDATE: Random Googling found this bit from AmLaw Daily back in February:
Charles La Bella, a founding partner of San Diego's La Bella & McNamara and former U.S. attorney for Southern California, told Yahoo's Littman that he expects U.S. district court judge Susan Illston to order criminal contempt hearings to determine who leaked the news of Rodriguez's failed test.
I'm guessing Illston is taking a bit kindly, because as far as I know, there have been no hearings on this matter. There should be.
Posted by Craig Calcaterra at 5:37pm
As usual, Posnanski says it better than I ever could
Posted 07/31 at 08:27 AM
I don’t know who this Dan Friedman character is, haven’t seen him round these parts before, but I like where his head is at. What this situation calls for is some well placed righteous indignation.
Posted 07/31 at 08:48 AM
Like most fans, I’m just sick of this story. Steroids are bad, but the “scandal” is completely out of proportion to the offenses. It’s no more interesting to a real baseball fan than the Michael Vick nonsense is to real football fans.
I’d like to know why the Commissioner’s office doesn’t do more to fight this on both the legal and public relations fronts. Other sports have the same PED issues (football is probably much, much worse), yet all the idiotic ESPN talk is about baseball.
Enough already. It’s way past time to close the books on this era and just move on.
Posted 07/31 at 10:35 AM
Shaun P. said...
Sim, the cynic/realist in me says the Commissioner’s Office is THRILLED every time one of those names leaks, because it will be useful leverage for them in negotiating the next CBA - and the vast majority of the hand-ringing and attention in the press go to the players, not the owners/management. And when Bud does get asked about it, he can tout his testing program and how great it is and how he wanted to do this years ago but the evil MLBPA wouldn’t let him etc etc etc
Posted 07/31 at 10:47 AM
Shaun P. said...
Sim, the realist/cynic in me is convinced Bud is THRILLED every time a new name gets leaked. It paints the players, and the MLBPA, in a bad light, most of the attention goes on them - which (in Bud’s mind at least) gives him leverage in the next CBA. And when Bud is asked about it, he can tout his wonderful new testing program and how awesome it is and boy if only that nasty MLBPA would have let him implement it years ago like he always wanted to and blah blah blah.
Besides, outside of moralizing sportswriters, where is the PR hit for baseball? Outside of revenue loss due to the downturn, its not like people are giving less money to MLB because of PED usage. As long as the revenue is there, there is no PR hit for MLB.
Posted 07/31 at 10:56 AM
I think you have expanded your suspect list too much. I’m guessing that the “list” is contained in the discovery. I presume only the parties to the case have the discovery, not the amici et al.
So if one were so inclined they could determine who had the list.
I believe the Times story said lawyers (plural) and that would rule out secretaries and janitors.
Then you just gotta find the Yankee fan.
And there ain’t no Yankee fans outside of New York, so your suspect list should be quite short.
Posted 07/31 at 10:59 AM
You must be kidding right? Why would a Yankee fan, if he/she had access to the list, out Arod first and not Ortiz/Manny?
The second statement is even more hilarious.
[note: if this is sarcasm, I apologize]
Posted 07/31 at 11:11 AM
I believe we have reached the point where no name is surprising and the tide has turned to more anger towards the leaker than the positive testers. People need to have historical perspective. Prior to this test the union was strongly against any testing. After taking some public hits they agreed to an anonymous test to see what percentage of players were using PED’s. Anonymity and independent testing were the keys to obtaining the players agreement primarily because of a lack of trust in ownership. Now that lack of trust has been validated. Even though the leak likely is not from the ownership end of things that means nothing to the players perception. Both the union’s lawyers and MLB’s lawyers should be clamoring for a full investigation and serious punishment for the leak.
It would never happen, but consider the punitive possibilities if the leak was identified and a civil suit ensued. How much loss to potential endorsement earnings have the affected players suffered?
Posted 07/31 at 11:22 AM
“I wanna know, both as a lawyer—and for as much as complain about the legal system, I still hold my duties as an officer of the court in pretty damn high regard—and as a baseball guy.”
So basically you have a prurient interest in someone else’s criminal activity. Sound familiar?
Posted 07/31 at 12:49 PM
Jack Marshall said...
Jon: Lawyers are responsible for self-regulation. Wanting to know what lawyers are breaking the law is responsible professional conduct, not “prurient interest.” And even if that wasn’t the case, what’s “prurient” about wanting to know which citizens aren’t trustworthy and law abiding? Criminal activity harms people and communities…that’s why its criminal. There is no right of privacy where criminal acts are concerned. What the hell are you talking about?
Posted 07/31 at 01:00 PM
“Criminal activity harms people and communities…that’s why its criminal. There is no right of privacy where criminal acts are concerned. What the hell are you talking about?”
Except for illegal drug users? Steroids are illegal right? Transporting them accross international borders is illegal, yes?
I’m just pointing out that while everyone wants to protect the privacy of the players (and I do as well), it seems odd that no one wants to protect the privacy of the leaker. They’re both criminals who have been promised confidentiality of sorts, right?
Posted 07/31 at 01:06 PM
Jack Marshall said...
Jon…I still don’t get it. The players were asked by their own union to potentially incriminate themselves,and were guaranteed anonymity. (Not every positive tester broke the law. Segui, for example, had a prescription. Over the counter drugs may have been the problem in a few cases.) The union isn’t colluding to promote lawbreaking…this is a legitimate union function. But the lawyers that leaked the sealed material are engaged in conduct that undermines justice, injures individuals, and is a major professional violation. We can want to find out who the rotten lawyers are just like we can legitimately want to find out who the steroid users were. It’s just wrong to do that by publishing the list, in one case, or (many believe) making the journalists reveal their sources.
I just happen to believe that promising anonymity isn’t something journalists should be able to do where crimes are involved. But that is a minority view.
Posted 07/31 at 01:39 PM
michael standish said...
Sorry to be repetitive, but so far we seem to have this, as per the New York Times’ breaking (yesterday) story:
David Ortiz, tested positive for PEDs, “according to lawyers with knowledge of the results.”
However, these lawyers “did not identify which drugs were detected.”
The Times rather quaintly adds that “The lawyers spoke anonymously because the testing information was under seal by a court order.”
But if Donald Fehr (a practicing attorney, last I heard) is to be believed, and that
“The leaking of information under a court seal is a crime,” and furthermore “The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime,”
then desire for anonymity is pretty understandable, since we’re looking at lawyers unlawfully leaking information to reporters who illegally solicited the dirt.
So: A criminal tells another criminal about an alleged drug test that supposedly took place six years ago; it resulted in (dis)positive results for a mystery substance that ranged somewhere on the scale between cough drops and extract of pineal gland.
Posted 07/31 at 02:47 PM
Rob C said...
If the leakers are in contempt of a court order, wouldn’t the journalist who protects the leaking source be participating in a criminal conspiracy by aiding the leaker?
Posted 07/31 at 03:01 PM
Victor Milán said...
Doesn’t Occam’s Razor as well as history suggest the leak comes from the US government? Is this whole steroids investigation anything but another government PR extravaganza - to “vindicate the awful majesty of the state”, as the Romans did?
By the way, I’m one of “those men” concerned with losing freedoms. That’s why I despise everything the last president did, despise the way the current one continues the worst of it (while blandly lying about it all), and I don’t admire North Korea so much that I want their health care system. I also despise the growing lack of accountability for government prosecutors and enforcers, of which the steroids flap appears to be a nasty little sideshow.
Posted 07/31 at 03:05 PM
I’m with you 100%, Craig. Though I’m sorry to say that I don’t have any very original suggestions on how to proceed. The only thing I can suggest is to a) find out who the (likely) NY Times reporter is who is responsible for the news and b) research his/her reporting history for clues as to who their sources or contacts could be and c) investigate any promising leads there. Its possible that they used the same source(s)/contact(s) in previous reports on different topics - and named them - when the info they received was much more mundane.
That’s the best I can give you. At the worst, its a start, right?
Posted 07/31 at 06:05 PM
Jack Marshall said...
The lawyer-leaker in the BALCO case only came forward as the reporters were about to be sent to jail. Not sure what the shield law situation is right now—-if there is one that is applicable, it’s not going to happen.
Posted 07/31 at 06:16 PM
Bob Tufts said...
I’ve heard from a mdeia source that Schmidt called lawyers and tried to get them to reveal names. If this is verified, the Times did solicit for information and is complicit in the violation of the law.
Also remember in the BALCO case that Fainaru-Wada and Williams knew that Troy Ellerman’s protests about leaks were lies and their paper kept printing them. Menawhile, they went back to Troy’s Sacramento office to leaf through more of the grand jury transcripts.
Writers love the First Amendment, but this group right has to be balanced against 4th, 5th and 6th Amendment rights of the individual….
Posted 07/31 at 09:01 PM
Don’t get ahead of yourselves, gentlemen. Let’s catch the leaker first.
Posted 08/01 at 03:18 AM