e-Discovery Policy Could Have Stopped Steroid Leaks - InformationWeek

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Commentary
8/11/2009
01:17 PM
Michael Hickins
Michael Hickins
Commentary
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e-Discovery Policy Could Have Stopped Steroid Leaks

From Alex Rodriguez to David Ortiz, the same question is asked every time the name of a big-time baseball player on "the list" is leaked to the press: how come the records weren't destroyed to begin with?

From Alex Rodriguez to David Ortiz, the same question is asked every time the name of a big-time baseball player on "the list" is leaked to the press: how come the records weren't destroyed to begin with?The list, for those who don't follow baseball, identifies players who tested positive for performance-enhancing drugs (PEDs) during a round of random -- and supposedly anonymous -- testing done during the 2003 season. The list was subsequently seized by federal agents as part of an ongoing investigation into the use of PEDs by major league baseball players.

The assumption is that the Major League Baseball Player's Association (MLBPA) should have destroyed the list once it had served its purpose, which was to determine whether five percent of players were using PEDs.

According to a report issued by George Mitchell:

In April 2004 federal agents executed search warrants on two private firms [seeking] drug testing records and samples for ten major league players... In the course of those searches, the agents seized data from which they believed they could determine the identities of the major league players who had tested positive during the anonymous survey testing.

Baseball and the MLBPA sued unsuccessfully to get the list back, in part because, according to attorney Grace Suarez, judges may not have understood the ramifications of electronic document storage.

The real issue here is whether the government could seize an entire subdirectory that contained test results for the 10 target players and for thousands of other players as well... [The court] clearly has little understanding of the complexities of a computer search. Exactly how is a magistrate who may know next to nothing about computers supposed to conduct an examination which even many computer experts find challenging?

That said, the MLBPA had the test results by November 11, 2003, and federal agents didn't seize the computer equipment containing those results until April 2004, some five months later. So the question remains: was the MLBPA derelict in its duty to protect its membership by not destroying the data before the feds had a chance to seize it?

MLBPA union leader Donald Fehr says no because,

On Nov. 19… we learned that the government had issued a subpoena. Upon learning this, we concluded, of course, that it would be improper to proceed with the destruction of the materials.
So in fact the MLBPA had eight days, from November 11 to November 19, to destroy the records without breaking or even bending any laws; that's not a lot of time for an individual, but would have been plenty for a policy-based application used as part of an overall risk management strategy. And the MLBPA would have been within its rights to destroy any data as long as the destruction was in compliance with established policies.

To be fair, the records weren't seized from MLBPA offices -- they were seized from labs that were under investigation. As Craig Carpenter, vice president of marketing at risk management software vendor Recommind, noted over breakfast this morning, "electronic documents are very difficult to get rid of" because they're so easily propagated.

So unless the MLBPA had access to the IT infrastructure of Comprehensive Drug Testing and Quest Diagnostics, the two labs that were raided by the feds, there was no way it could have ensured that the test results had been destroyed.

One thing is certain, though: the issues around the proper handling of electronic data (notably when and how to store or destroy it) have promoted e-discovery technology from the ghetto of document management specialization to the limelight of risk management strategy for companies in all industries.

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