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. 

Tee Up Your Document Retention Policy -or End Up in the Woods

In a widely reported anecdote, pop singer Christina Aguilera was once introduced to golfing superstar Tiger Woods, one of the most recognized people on Earth. “Christina, I love your music,” Woods declared. “I have all your CDs...” “Sorry, I don’t follow tennis,” Aguilera said, “so I don’t know much about you.”

 

Unfortunately, ignorance is no excuse when it comes to compliance with record-retention policies and apathy will result in serious trouble.   The legal and regulatory risks associated with noncompliance include costly penalties, court sanctions, and adverse judgments.  In addition to these compliance risks, companies must also consider potential financial and strategic risks. According to Rich Bailey in “Leveraging Enterprise Records Management” in the Sarbanes-Oxley Compliance Journal, a recent survey found that “roughly 50 percent of respondents said they are less than confident that, if challenged in court, their organization could demonstrate that their electronic information is accurate, accessible, and trustworthy. Only now are organizations realizing the complexity and compliance requirements associated with e-records, including electronic documents, data, e-mail and instant messages. Another survey by CFO.com found more than one-third of top-level executives say their companies don’t have a disciplined way to deal with electronic discovery issues.”

 

ONE THIRD! That’s a lot of executives who are at serious risk of consequences due to their shortcomings in preparedness in dealing with electronic discovery issues. If your company has not already evaluated adopting a document retention policy, adopted a policy or, worse yet, is not following its existing document retention policy, get on the ball or you may end up being like another golfer, Harry Tofcano, who said, “I’m hitting the woods just great, but I’m having a terrible time getting out of them.”