A Muscular Ruling: Medical Records, ESI and Baseball

Baseball is almost the only orderly thing in a very unorderly world. If you get three strikes, even the best lawyer in the world can't get you off.       -- Bill Veeck                                   

While the law cannot come to the aid of a strikeout on the diamond, it apparently can rule on the muscles behind the bats. Baseball currently stands as not only the national pastime, but the center of a steroid abuse scandal that still reverberates through the hallowed walls of the nation's baseball stadiums and the musty courtrooms of the Ninth Circuit in California. The two venues converged when the Ninth Circuit's Court of Appeals retreated from an August 2009 e-discovery ruling against government prosecutors, in an offshoot of the Bay Area Laboratory Co-Operative (BALCO) steroid abuse scandal.


In the BALCO case, government agents had search warrants for the confidential medical records of 10 baseball players. As reported in an article in Crime in the Suites, that original ruling spelled out tight controls on what methods government agents could use to review and retain electronic information seized during the BALCO criminal investigation.  In the course of executing the warrants, medical records of hundreds of other players were obtained and used to obtain more search warrants. The government argued that those records came into "plain view" and thus were usable.


The "plain view" theory was put before the Ninth Circuit in August 2009, and a strict criteria for future searches was established. However, the Obama Administration urged the court to rehear and reverse the decision, which it did. In September 2010, a new decision was handed down in the case, United States of America v. Comprehensive Drug Testing, Inc., in which the appellate court adhered to its ruling that law enforcement cannot use materials seized in a computer search which are beyond the scope of the warrant.  However, the decision also downgraded a former five-point criteria for such searches to a non-binding concurrent opinion that is less restrictive and provides guidance in future searches of electronically stored data. It's a home run for Major League Baseball players, whose improperly seized drug-testing records must now be returned to them. 

Chief Judge Alex Kozinski wrote (emphasis added) that "the warrant application should normally include, or the issuing judicial officer should insert, a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation."


The decision is not binding outside the Ninth Circuit, but it will probably help other jurisdictions that confront the same issues.  It may make it easier to obtain warrants and searches for electronically stored information.  However, the players (and their allegedly artificial muscles) retain some protection of the confidentiality of their medical records.


To review the Ninth Circuit's opinion, click here.