Jacko MD’s search echoes baseball steroids probe

The search state and federal agents carried out Wednesday at Michael Jackson’s doctor’s office as part of an investigation into Jackson’s death could raise some of the same legal issues that remain unresolved in the federal investigation of steroid use in baseball.

News reports say authorities seized a computer hard drive or at least a "forensic image" of a hard drive from an office used by Dr. Conrad Murray in Houston, Texas. Some accounts also say "bags of evidence" were taken from the office. 

The seizure of computer from a doctor’s office is a tricky thing, as federal investigators found out when they copied a computer directory from a lab which handled drug testing for Major League Baseball, Comprehensive Drug Testing. While the warrant in that case named 10 players, the feds seized an entire directory or spreadsheet with data on hundreds of athletes. The federal government later claimed it had the right to rummage through all the data and not just that which pertained directly to the named players.

In 2006, the 9th Circuit Court of Appeals ruled, 2-1, that the feds were right and that they essentially had free rein over the data because it was all mingled together. A dissenting judge said the majority’s approach was dangerous because it failed to recognize how computer technology enhanced the possibility for a massive invasion of privacy anytime authorities had a warrant for information about an individual patient.

The three-judge panel’s ruling was withdrawn when the case was taken en banc by the 9th Circuit in 2008. A new decision is pending from an 11-judge panel, which heard arguments on the case in December.

One issue that came up in the steroid testing case was whether a magistrate should have been brought in to sift the responsive information from the irrelevant stuff. It’s unclear whether this is taking place in the Michael Jackson case. The odds that authorities would want to prosecute other Murray patients are low, but if they do go after the doctor it will be interesting to see whether prosecutors consider data about other patients on that hard drive to be fair game or off limits.

Of course, Murray’s office is in Texas, part of the 5th Circuit and not the 9th, so whatever the new 9th Circuit ruling says won’t be controlling, but it will be influential on how other courts look at these issues.

Full disclosure: I filed a motion in 2005 asking to unseal court records in the baseball/steroids appeal. The motion was essentially granted by the three-judge panel, though they referred it back to the trial courts. That ruling was wiped out when the case went en banc. Hopefully, the 11 judges will take up the access issue when they file their en banc ruling. A lot of info about the tests has leaked out in the meantime, but a key ruling rebuking prosecutors for their handling of the case remains under seal, as far as I know.

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