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.

“It’s unfair to tarnish an individual [i.e., Rodriguez] based on that illegally seized information,” La Bella said.

La Bella noted that Illston–the district court judge in the BALCO case who is also presiding over Barry Bonds’s upcoming federal perjury trial–previously has ruled that the government was entitled to information gleaned from the raid on CDT in April 2004. And the judge hasn’t taken kindly to leakers of privileged material.

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.

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Comments

  1. Kelly said...

    How has the players’ union not hired a lawyer to answer this question? 

    I have taken four ethics classes in my educational life, one for “mass media” and three for “psychotherapy.”  The one for mass media was first and I really wonder exactly how far down one has to bury that information to run with these “leaks” and sleep well at night and get up tomorrow and not pursue any other part of it.

    Could the fans hire ShysterLawyer to sue on behalf of steroid overkill and lack of interest?

  2. Dan Friedman said...

    I’m 100% with you on this one, Craig, although I don’t think that’ll be much use to you.  I have no resources, and no idea how to go about sussing this criminal out.  All I have is righteous indignation, and plenty of it.

  3. Shaun P. said...

    Right on, Craig, though like Dan, I’m short on ideas of figuring it out.  Gotta think about it some more.

  4. bigcatasroma said...

    It seems to me in situations like this, the same people who “don’t want their freedoms taken away” (i.e. health care, guns) are the ones (i.e. Platschke – yeah, I’m betting he’s a little more conservative than not) that don’t mind the leaking of the names, the gross seizure of our entire legal system, Reign-of-Terror/McCarthyism style, and would rather spout off about a “tainted” WS.  It just MAKES ME SO MAD – the leaking of the names is *so* much worse morally and ethically than some stupid ball player taking some stupid drug that may or may not be illegal (um, they give steroids to hospital patients recovering from injuries and illnesses, so why can’t athletes take them???). 

    Had to rant.

  5. Michael said...

    I not only want to know who leaked, I want to see them marched out in handcuffs.

    As I’ve said before, the pattern of leaks implies malice – and not just towards the players, but to MLB, apparently for not going as far as the leaker would like.

    Maybe it’s schadenfreude and the leaker represents the “off with their heads” school of sports-talk radio host, but hey, it’s a federal crime he’s committing and I think he should suffer the appropriate punishment.

  6. Michael said...

    Oh, and two ancillary and rhetorical questions:

    1. When ESPN basically monetizes whatever they had to pay for the leak by devoting their entire morning’s coverage to Papi (with a 5 minute Plaxico break every hour), that’s not exactly a media rebuke for illegal activity like leaking federal evidence.

    2. Since when did Jose Canseco become the media darling in all this? By his own telling, dude was the Johnny Appleseed of steroids.

  7. Craig Calcaterra said...

    I’ll throw this out there:  any time I’ve been privy to the details of a crime (i.e. through my legal practice) the motives in play are always less complicated than people think.  People basically want a few things in this world: money, sex, revenge, glory (power is a means to money, sex, revenge and glory).

    The point is that vague political points, such as “I want to see those who disagree me pay more dearly for their ethical transgressions than they currently are!” are very rare when it comes to this sort of thing.

    My guess is that whoever is leaking this is doing so because they’re getting paid, or they’re getting even, or they’re getting off, in the broadest sense of the term.

  8. ChrisKoz said...

    Hell yeah Craig. At this point I’m pretty sure we lawerly types are supposed to start throwing our panties on stage.

  9. bigcatasroma said...

    “Follow the money.” 

    That is all . . .

    . . . But – where does the money lead to?  What monetary incentive is there to leak the info?  I doubt they are getting off, because of the serious legal implications of the situation – and since they are lawyers, I’m guessing a cost-benefit analysis leads the leaker(s) to realize they *may* get off somewhere else for far less of a risk (of course, that’s what’s getting them off in the first place – so who knows?). 

    Getting even – someone in the DOJ?  Or federal court system?  With a baseball player?

    Follow the money . . .

  10. Rob² said...

    I seem to recall reading somewhere that these leaks loosely coincided with some major procedural event in the Bonds case.

    It’s also possible that this is unrelated to Bonds.  Perhaps the Feds are trying to flip a player on the list, and this is their way of threatening the (potential) witness.

  11. Sim said...

    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.

  12. 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

  13. 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.

  14. Matt said...

    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.

  15. MJ said...

    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.

    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]

  16. largebill said...

    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?

  17. Jack Marshall said...

    Craig, you could not be more right. The lawyers who did this need to be tracked down, and kicked out. Me, I object to shield laws, which allow the media to act as information launderers—-as far as I’m concerned, the reporter who publishes illegally leaked material is aiding and abetting, not to mention encouraging. I’d love to force the reporters to reveal the source. But journalists have somehow sold the myth that “the public has a right to know” stuff that the law and court rules say it DOESN’T have a right to know, and as long as that’s the case, the chances of catching the leaking scum are slim at best.

  18. Jon said...

    “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?

  19. Richard Dansky said...

    Why do I have a mental image of Roger Goodell stuffing stacks of unmarked twenties into padded envelopes marked “For the guy with the list”?

  20. 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?

  21. Jon said...

    Jack:

    “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?

  22. 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.

  23. 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.

    And?

  24. 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?

  25. 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.

  26. lar said...

    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?

  27. 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.

  28. Dan Friedman said...

    All of these leaks seem to be getting broken in the New York Times, correct?  You say that somebody’s getting paid for this, Craig… if the New York Times turned out to be involved, would they (or their reporter) be committing a crime?  Particularly if they are directly paying for the leak, obviously, but I doubt that’s the case.

    I guess the next question is, who’s paying for the names, which leads to the question of who benefits?  The media benefits, but as I just said, I really can’t imagine the New York Times paying directly for leaked material.  Maybe it’s a conspiracy of officials from other sports trying to take down the great name of baseball?  Yes, that must be it.

  29. Dan Friedman said...

    Just noticed your post at the bottom, Richard… somehow I missed it before, but it looks like we’re on the same page!

  30. Craig Calcaterra said...

    I didn’t say someone was getting paid in this instance. I said that money is one of the kinds of things that motivates people to leak information or otherwise do criminal things.

    I would suspect that the Times is NOT paying for it, because if that was ever found out they would be ruined as a paper. Major news outlets just don’t do this.  To be honest, I can’t see how money as a motive specifically fits in here.

    As for the Times, I suspect that their reporters are simply workin’ it more, calling people connected to the case over and over again until they can find someone who says something.  Whether that is ethical is another question altogether.

  31. Dan Friedman said...

    I figured out who’s behind it: Jose Canseco.

    I know that bloggers get their head’s ripped off for unsubstantiated accusations, but do blog commenters?

  32. Chipmaker said...

    BALCO grand jury testimony leaker Troy Ellerman got 2.5 years in federal prison for his exploits in this area. (I cannot find if he was disbarred or not.)

    I’d like to see the 2003 PED survey leaker(s) get at least that much, per name leaked. Plus hefty fines and disbarment.

  33. Craig Calcaterra said...

    Chip: different deal with BALCO. Leaking grand jury testimony is independently illegal and subject to its own sanction.  This is not that. This is violation of a court order that can lead to criminal contempt charges (i.e. lower jail time if any) but, more significantly for the lawyer involved, could mean disbarment or suspension.

  34. MJ said...

    As usual, Posnanski says it better than I ever could

    *I don’t want this to sound wrong because I obviously respect journalists who are able to get true information and break news. And I fully embrace our responsibility to protect sources. But how can anyone respect the lawyers and others who are leaking names in clear contempt of court? I mean, nobody can hide behind Watergate here—this isn’t exactly an issue of national gravity. They’re leaking names of BASEBALL PLAYERS who tested positive for steroids in an ANONYMOUS TEST taken back in 2003. Hard to see how they’re serving the public good here.

    And now you hear people saying that since the names will get leaked out anyway, baseball should just release the entire list and be done with it. That sounds fine except … the lists have been leaked unethically and perhaps illegally. The players took those tests with the expressed understanding that they would remain anonymous and the results would be destroyed. And their rights are being trampled. Maybe deceitful leaking is not as interesting a story as the latest big name user. But it’s hard to understand how so much anger can be spilled over athletes who took performance enhancers so they could play their sport better and so little is over self-interested people who are underhandedly and perhaps unlawfully giving out names.

  35. J.W. said...

    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.

  36. 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….

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