The federal agents who took the material from the Long Beach-based Comprehensive Drug Testing Inc. had a search warrant for the test results of just 10 players, but discovered on a computer spreadsheet the test results of additional players.
The players' association went to court, and lower-court judges ruled the additional names were seized illegally. A three-judge panel of the 9th Circuit reversed those decisions twice in 2-1 votes, but the entire 9th Circuit set the reversal aside and decided to hear the case en banc.
Assistant U.S. Attorney Douglas Wilson argued Thursday the government had a legal right to investigate all of the players who tested positive because their names and test results were on a single document containing the names of the 10 players listed in the search warrant. Wilson said since the government was entitled to 10 players' test results, it was entitled to the entire spreadsheet.
Wilson's argument was attacked early and often by at least six judges, who expressed doubt that a computer spreadsheet is analogous to a paper document, which investigators have a right to seize so long as it contains evidence listed in the search warrant.
"When you are talking about computers, a single document can contain vast amounts of information," Judge Kim Wardlaw said.
Judge Mylan Smith was even more pointed, complaining that allowing the government on narrowly focused investigations to seize computer databases, hard drives and spreadsheets containing large amounts of information "would probably be frightening to the public because there's no end to it."
The case deals with samples from 2003 survey testing of Major League players, which the union and management agreed would remain anonymous.
So far, career home run leader Barry Bonds is the only Major Leaguer charged in the case, which has yielded more than a dozen convictions of drug dealers, track star Marion Jones and her former coach, Trevor Graham. Bonds has pleaded not guilty to lying to a grand jury about his drug use and obstruction of justice, and is scheduled to stand trial March 2.
Players have picked up influential allies during the case, such as privacy advocates, legal scholars and the U.S. Chamber of Commerce. The case could wind up before the Supreme Court.
"Many businesses, such as banks, telephone companies and internet service providers possess electronic information that is routinely sought by the government in criminal investigations, even though these businesses are not suspected of wrongdoing," the chamber's lawyers wrote in a 2007 legal filing urging the appeals court to reconsider its prior decision.
"By proceeding in this way, the government would obtain for itself the right to seize banking, telephone, or e-mail records not only for those persons under investigation, but also for anyone else whose records just happened to reside on the same computer or database."