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The MLB-Biogenesis lawsuit sends a pretty chilling message

Aug 7, 2013, 12:45 PM EDT

Bud Selig

Set aside the fact that it worked. Set aside the fact that the players who were punished got (or will be getting) what they deserved. Just ask yourself if you feel good about the fact that the lawsuit between Major League Baseball and the Biogenesis defendants enabled them to get all kinds of telecom data that people would not, in the ordinary course, be able to get:

Facebook friends. Transcripts of BlackBerry instant messages. Records of texts. Major League Baseball investigators used an arsenal of high-tech tools to collect the evidence that persuaded a dozen players to accept 50-game suspensions this week for their ties to the Biogenesis clinic … Records from Florida’s Circuit Court for Miami-Dade County that were examined by The Associated Press showed subpoenas were issued to Federal Express, AT&T Mobility, T-Mobile USA, UPS and MetroPCS. At least some of those companies complied and turned over data to the probe, one of the people said.

That’s well and good until you remember that from the moment Bosch agreed to side with Major League Baseball the lawsuit was essentially playacting. A gamed suit with both adversaries on the same side, working toward the same end, not in an actual adversarial posture to one another. They were nonetheless allowed to use the court system as a means to get at private citizens’ telecom records.

This isn’t necessarily on MLB — they had a plan and carried it out with all of the tools at their disposal — but it’s a disgrace for the court system and the telecom companies who complied with these subpoenas without a fight. The courts should be far more wary of these kinds of scams. Telecom companies should be far more protective of their customers’ records. Once they are subpoenaed they have a right to march into that court and say why they shouldn’t comply. It seems like they had ample reason to do so here but it appears as though they did not.

You may like the ends of the Biogenesis investigation, but there’s no escaping that the means were pretty damn slimy.

  1. Old Gator - Aug 7, 2013 at 12:50 PM

    Of course they were. Look who helmed them.

  2. stex52 - Aug 7, 2013 at 1:03 PM

    Oh, you mean the guys who winked at PED abuse for ten years, then offered PR solutions for another ten? Are you seriously suggesting that they are of less than impeccable integrity?

    That maybe it only reduces itself down to maintaining a public image and making billions of dollars and all else be damned? That maybe they really don’t have the players” best interests at heart? Or the fans’? That they might use all of their vast resources and power to bend rules and laws in their own favor?

    You are such a cynic.

    • cur68 - Aug 7, 2013 at 1:06 PM

      ^^^^This

      While an unsavoury development from the American Telecom Companies, this behaviour is pretty consistent with MLB’s. As to why the TC’s played ball, I can only assume they are headed by some of our more strident “They used PEDs? Kill ‘em all!” commenters.

      • paperlions - Aug 7, 2013 at 1:11 PM

        Or they got a discount on their stadium naming rights deals.

      • IdahoMariner - Aug 7, 2013 at 2:28 PM

        I am going to guess it wasn’t worth the cost of fighting it, to them anyway. We are leaving the protection of our privacy interests to people and corporations who only want to be sure they are making a profit. They will jump in if it when the benefit outweighs the costs. Can’t think of what situation that would be….

  3. dlf9 - Aug 7, 2013 at 1:04 PM

    Completely not baseball related, but this reminds me of the recent Prenda Law cases where they would sue someone allegedly for illegally downloading porn and use that to cast an incredibly broad net in discovery to get data. Eventually Prenda was sanctioned so much that the firm shut down.

    • 4d3fect - Aug 7, 2013 at 7:25 PM

      This. In fact, wouldn’t surprise me to find MLB legal team members in bed with Gibbs, Steele, &c.

  4. cfos00 - Aug 7, 2013 at 1:05 PM

    There’s nothing wrong or disturbing in them getting evidence that they’re legally entitled to get. For someone who is all about for writing about due process for A-Rod, you sure seem slanted against it when the other side is using it. This is due process in the US legal system. Those same laws that you’re complaining about here have been used for years to put criminals behind bars. I highly doubt you complain about people like drug dealers going away that are caught using the same kinds of evidence. You can’t have it both ways. Laws apply to everyone.

    If people who are breaking the law and people who are doing something they know that their employer wouldn’t exactly like if were found out about are going to do something bad, here’s a little advice. Don’t leave a paper trail. That would include texts, emails, and facebook. I would think most grown adults would know this.

    • chiadam - Aug 7, 2013 at 1:11 PM

      Due process does indeed exist in the United States legal system. If only MLB was a court of law. This is not a criminal trial, nor was it ever a criminal investigation. This was MLB crawling up the cyber asses of everyone it wanted to run over. I give Calcaterra a hard time (not like anyone cares what I would think), but he’s right. MLB had no business getting access to all the information they got access to. This isn’t China. We have privacy expectations here.

      • cfos00 - Aug 7, 2013 at 1:19 PM

        The lawsuit, however, was part of the US legal system. And this type of information is commonly used in court cases. Playing baseball doesn’t grant them special rights. If anything, this is showing that they aren’t getting special privalages, which is a good thing. Again, you would think that they’d be smart enough to not leave a paper trail.

      • coloradogolfcoupons - Aug 8, 2013 at 9:51 AM

        Privacy expectations???

        What stone age rock have you been hiding behind since The Patriot Act? I guess it will take a falling DRONE hitting you on the head before you get it into your little noggin that there IS no privacy, here, there, or anywhere. Every single phone call, text, email, and blog chat is being recorded as we speak. From here to Timbuktu, they’re listening and watching. And just because we’re paranoid doesn’t mean they AREN’T after us.

    • Craig Calcaterra - Aug 7, 2013 at 1:17 PM

      This is not “due process in the legal system.” Most courts would have stopped MLB’s discovery efforts once it saw that the lawsuit was a fishing expedition for non-lawsuit purposes. Most would have dismissed this suit a long time ago. And many would have questioned the subpoenas being sent out.

      • umrguy42 - Aug 7, 2013 at 1:26 PM

        “Most courts would have stopped MLB’s discovery efforts once it saw that the lawsuit was a fishing expedition for non-lawsuit purposes.”

        Craig, if you haven’t seen any of the stuff about Prenda Law (as mentioned above), go check it out (porn copyright trolling), and then come back and tell me that “most” courts would have stopped them. Given how long it took for Prenda to come crashing down, I’d think there are quite a few courts that would have done just the same as this one did…

      • jayscarpa - Aug 7, 2013 at 6:30 PM

        Gawd you’re stubborn

    • shawndc04 - Aug 7, 2013 at 1:21 PM

      @cfos00:

      I’d add to your comment that all parties seemed to be acting in their own best interests. Obviously, counsel for Bosch concluded that their client was best suited by cooperating with the probe rather than fighting what was probably a losing battle over discovery. Discovery is pretty liberal in the United States, and given Bosch’s culpability and exposure, it is hard to criticize him for cooperating.

      Secondly, I’m sure that ATT&T and the other companies pick their battles carefully, and that their counsel carefully considered whether this case was one where resistance was appropriate. It certainly is not unreasonable for them to conclude that the time and expense of opposing subpoenas where the issue is illegality by other parties is not worth it.

      As an attorney, Craig, I don’t understand how you can’t see this.

      • cur68 - Aug 7, 2013 at 1:23 PM

        I bet you’d be singing a different tune if it was YOUR employer chasing your phone and instant message records.

      • churchoftheperpetuallyoutraged - Aug 7, 2013 at 2:51 PM

        As an attorney, Craig, I don’t understand how you can’t see this

        Craig is criticizing the legal system for allowing this case to move forward. While Wendy Thurm disagreed in a twitter discussion many moons ago, Craig wrote on HBT while he thought the initial case had no merit that MLB brought against Biogenesis. The tl;dr version is that it would be almost impossible to show that MLB was harmed by players taking PEDs, when the $ is coming in hand over fist.

        When the lawsuit wasn’t thrown out, MLB was able to move forward with subpeonas to get this information. The TC’s could have fought them, but the problem lied with the courts, not the companies.

    • cur68 - Aug 7, 2013 at 1:21 PM

      WTF? Since when did MLB become a “legal system”?

    • alexo0 - Aug 7, 2013 at 1:23 PM

      The reason Craig seems slanted is because you are standing on the side of a hill. The point he’s making is that it was the way that all this information was obtained, i.e. through what was essentially a phony lawsuit, that makes all of this seem wrong. MLB gamed the system, and it worked.

  5. danrizzle - Aug 7, 2013 at 1:09 PM

    If by “due process” you meant “abuse of process”, you’d be absolutely right.

  6. chacochicken - Aug 7, 2013 at 1:11 PM

    It was a bright cold day in August, and the clocks were striking thirteen.

  7. hockeyflow33 - Aug 7, 2013 at 1:18 PM

    It’s frightening that an employer can gain so much access to their employees

    • chiadam - Aug 7, 2013 at 1:21 PM

      Anyone can. That’s why I wear this here tinfoil helmet and pay all my bills with coins.

  8. dremmel69 - Aug 7, 2013 at 1:21 PM

    It is not easy to judge where this ranks in the heirarchy of “ethically-void legal maneuvers”. That list is huge and grows more and more all the time, which leads people to become desensitized to them in general.

  9. oldskimmy26 - Aug 7, 2013 at 1:22 PM

    A judge clearly disagreed with Mr. Calcaterra’s opinion

    http://www.cnn.com/2013/07/30/us/florida-mlb-clinic-lawsuit

    Thank goodness for due process….unless you don’t agree with the results I guess.

    • Craig Calcaterra - Aug 7, 2013 at 2:09 PM

      That’s a threshold ruling in the case, not one on the merits. Most observers think it’s wrong, but never mind that.

      • oldskimmy26 - Aug 7, 2013 at 2:29 PM

        Most observers think it’s wrong?

        Well, as long as most observers think it’s wrong then we’ll just disregard it.

        Can we do the same with Shyam Das’ ruling in Ryan Braun’s appeal?

  10. rathipon - Aug 7, 2013 at 1:42 PM

    Hiring attorneys to try and quash a subpoena can be costly. Simply complying with it costs almost nothing. Since the telecom companies have very little at stake in the matter, it’s unsurprising that they would comply. I don’t think I can fault them for acting as they did in their own interest.

    I agree with Craig’s general point however. It’s a little bit scary how the power of the court can be abused by a non-adverse plaintiff and defendant to obtain private information of 3rd parties. If anything, I would have to fault the court on that one. Obviously there is a need for some sort of additional scrutiny.

  11. oldskimmy26 - Aug 7, 2013 at 1:50 PM

    Um, isn’t it entirely possible that the only records (phone, text, etc) that MLB got are records of clynic employees? And, by getting those records they would know what and when A-Rod, and the other players involved, texted to Bosch?

    Seems like MLB would rightly be allowed to gain the phone records of the clinic they were suing, doesn’t it? Doesn’t seem all that seedy or chilling to me when you think of it that way.

    Just a thought.

    • brazcubas - Aug 7, 2013 at 2:45 PM

      Possible, but unlikely, since Bosch (that is, the clinic) and MLB already had an deal in place. I imagine part of the documents handed over to MLB would have been the clinic’s telecom information, so there would be little need for a subpoena.

  12. banpeds - Aug 7, 2013 at 2:10 PM

    CC- Boy are you going to be dissapointed. You are an attorney are you not? I suggest you start connecting the Dots before you continue to opine on how the players were wronged by MLB and MLB has done anything wrong or used the court system in illegal ways, which is what you are implying. This story is far from over… I would guess you have no idea how many investigations are underway by numerous entities. The MLB lawsuit was a legal vehicle for MLB and others to start connecting the Dots which involve numerous entities and people. Did you know that the current MLB lawsuit was reviewed by another judge in respect the legality of the lawsuit, probaly not.

    The MLB lawsuit is far from over. There will be more players.

    08/05/2013
    AMENDED COMPLAINT –
    08/05/2013
    NOTICE OF TAKING DEPOSITION – witness
    08/02/2013
    ORDER ON MOTION TO COMPEL – witness
    08/02/2013
    RESPONSE TO REQUEST FOR PRODUCTION – Evidence
    08/02/2013
    RESPONSE TO REQUEST FOR PRODUCTION – Evidence
    08/01/2013
    REQUEST FOR HEARING – MLB
    08/01/2013
    MOTION TO COMPEL -Witness
    07/25/2013
    NOTICE OF FILING: ATTACHED WRIT OF CERTIORARI

  13. deathmonkey41 - Aug 7, 2013 at 2:14 PM

    That’s outrageous! Only the government should be able to look at our telecom records without a warrant! “Hope & Change You Can Believe In…and if you don’t, we’ll know…”

  14. hitdog042 - Aug 7, 2013 at 2:31 PM

    Has anyone followed the news at all the past two months? Your data is not protected lmao. This isn’t slimy. They had a court order. So obviously someone knows more than a blogger on the law.

    • oldskimmy26 - Aug 7, 2013 at 2:36 PM

      Just to gove CC his due, I believe he passed the BAR exam and used to practice law for a living. He’s not a legal amateur like me.

    • clemente2 - Aug 7, 2013 at 4:57 PM

      Reading comprehension. Craig knows the court let the subpoenas go through. He is noting he thinks that was a bad decision by the court.

  15. bobdira - Aug 7, 2013 at 2:42 PM

    Craig, and all of you who believe some wrong was done by mlb obtaining the information…..get over it. The issue was on the field and I don’t care if they stuck their hands up the assholes of every cheater out there to find the evidence they needed. Getting this cancer out of the game justifies EVERY MEANS.

    This is, I hope, the first in a series of suspensions that get more and more restrictive as more and more CHEATERS get put out of the game for the rest of their lives. It’s long overdue and there are dozens if not hundreds more who need to be dealt with. AND if the information needed to bring this to fruition is in the garbage cans of these miserable excuses for “sportsman”, god speed to those going thru the refuse.

    • churchoftheperpetuallyoutraged - Aug 7, 2013 at 2:59 PM

      The issue was on the field and I don’t care if they stuck their hands up the assholes of every cheater out there to find the evidence they needed.

      Speaking of great lessons to teach your kids. Ends justifies the means everyone!

      • oldskimmy26 - Aug 7, 2013 at 3:18 PM

        The ends don’t always justify the means.

        But SOMETIMES they do.

    • clemente2 - Aug 7, 2013 at 4:58 PM

      Idiot

  16. pappageorgio - Aug 7, 2013 at 2:47 PM

    Just want to get this straight…..If a company was suing me and said there was text message from me to them that proved their point, they are just given blanket access to every text conversation I’ve ever had? With anyone?

    I really don’t care about twitter or facebook…..anyone who posts on there is going out of their way to make personal stuff public.

    But I’d think that I have some standard of privacy in sending texts intended for one person. I would liken this to the phone company recording all of your phone conversations and playing everything for anyone who has a legal beef with me, no matter how limited the scope of that beef.

  17. AK47 - Aug 7, 2013 at 3:31 PM

    Craig – you and I are on the same wavelength here. It is disturbing that any organization can create a lawsuit, no matter how phony, and use that to obtain private records such as text messages, etc. It may be legal, but that doesn’t mean it’s right.

  18. kevinbnyc - Aug 7, 2013 at 3:55 PM

    Bigger issue than the scummyness: What MLB player is using T-Mobile or MetroPCS?!?!

  19. tflakey - Aug 7, 2013 at 4:14 PM

    In most cases I’m a means justify the ends type of guy, but I truly love the game and think MLB needed to what was necessary to clean the game up. According to a new national poll, only 34% of American’s think that the MLB has taken this issue seriously…they need to convince that 34% they are very serious about the issue and I think this is a start. Check out the poll http://tinyurl.com/k8gkwzm

  20. serbingood - Aug 7, 2013 at 5:23 PM

    MLB=NSA
    MLB=FBI
    MLB=CIA
    MLB uses the SLIME method of Discovery. This is what our civilization has evolved to.

    I am certain that all of the above entities will have a copy of this entry and the entire Blog on a tape or hard drive for future reference.

    Sad.

  21. prrbrr - Aug 7, 2013 at 8:56 PM

    So the actions and continual lying by Braun and Ahole aren’t slimy? Good for the MLB and efforts to clean things up.

  22. cornbreadbbqred - Aug 7, 2013 at 10:29 PM

    Does anybody remember the story “Damn Yankees?” If only for a moment we can leave the personalities affected in this Passion Play aside and consider that it is a predictable symptom of where our society has gone. While the non-competing sports consumer is plied ad nauseum by the pharmaceutical and quasi-nutritional industry for the fountain of youth embodied in the next performance product (including viagra) that has come down the pipe, what can surprise you that all elite professional athletes have not been able to remain immune from this kind of widely promoted consumer culture.

    I ask you, what is the difference with Spencer Tracy making a deal with the Devil in that story, and failing tragically with our sympathy, and guys like A. Rodriguez, B. Bonds, M. Macguire, and S. Sosa, which seem more like an era than a passing trend.

    The ultimate cautionary tale is the potential and mostly unknown impact on the athletes’ health and quality of life as years advance, which are great unknowns. Ask yourself, what would Flo-Jo say?

  23. cornbreadbbqred - Aug 7, 2013 at 10:31 PM

    Or, what would Lyle Alzado say for that matter!

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