Last Thursday, the Arizona Diamondbacks played the New York Yankees at Yankee Stadium for the final game of a three-game series. The Yankees won the game by a score of 7-1, sweeping the series; the teams will not play again this season.
After the game, an Associated Press reporter was walking through the Diamondbacks' visiting dugout. He found a scouting report on the floor. The scouting report was authored by someone on the Diamondbacks' staff and discussed how to pitch to various Yankees:
Alex Rodriguez: "HOT right now. ... Chases a lot of BB's w/2-strikes, both away and in dirt. CH is fine when away. ... (vs. left-handers) Hard in, soft away. Ladder FB w/2-strikes."
Derek Jeter: "Will bunt and H&R. ... Runs early. ... Struggles w/ball down/in and will chase SL away. ... Get ahead. Fairly aggressive so will need to mix pitches and locations 1st pitch."
Bobby Abreu: "HOT right now. ... Good guy to crowd once you're ahead. Hammers 1st pitch FB's away w/RISP."
Johnny Damon: "(vs. right-handers) Struggling w/soft stuff. ... (vs. left-handers) Keep honest w/FB up/in."
Key: FB-fastball; CH-changeup; SL-slider; BB's-balls; ladder-high fastballs, out of strike zone; H&R-hit-and-run.
The reporter published the scouting report in an Associated Press story that was picked up by various publications.
Should he have done so? Didn't the Diamondbacks have a reasonable expectation of privacy for their proprietary information? Or were the Diamondbacks merely irresponsible with their belongings, and thus did not enjoy any legal protection to the information?
There are different ways to examine the issue. My initial reaction was surprise that the property of the Diamondbacks in their dugout would be considered "fair game" (for lack of a better expression) for a reporter to take and publish. This viewpoint was endorsed by the Diamondbacks when they formally complained to Major League Baseball about the "theft":
The Arizona Diamondbacks have contacted Major League Baseball about an Associated Press reporter who discovered their advance scouting report on the New York Yankees in the dugout yesterday and put its contents on the wire. "I am furious," one Diamondbacks executive said. "That is theft."I can see why the Diamondbacks and perhaps also the Yankees might feel that a private team document accidentally located on the ground of a team dugout should not be removed from the premises or used in a publication without their permission. Under that interpretation, the taking and subsequent use of the scouting report might be construed as misappropriation, the unauthorized or improper use of a party's confidential information or intellectual property, or trespass to chattles, the intentional dispossession of another's property. Beyond tort law implications, one might even characterize the taking of the scouting report from the dugout as criminal behavior: theft is the illegal taking of another person's property without that person's consent, and if we are to believe the anonymous Diamondbacks' official above, then the team appears to believe that they have been a victim of a reporter's theft.
Continuing along this pro-team/anti-reporter interpretation, while I recognize that reporters are rewarded for breaking stories, might baseball officials equate what the reporter did to going through someone's else thrash? Of course, the more precise analogy would be going through someone else's thrash on that person's property, as according to the U.S. Supreme Court in California v. Greenwood, 486 U.S. 35 (1988), garbage placed at the curbside is public property--but you get my point. Similarly, when one walks through a department store, there is no expectation that a shirt located on the ground is thrash; if you pick up that shirt, you are still expected to buy it, and if you leave the store without doing so, you will have shoplifted.
Aside from the law, consider our expectations for those involved in this story: the Associated Press is a venerable and trusted news organization, and its reporters are presumably expected to ascribe to their organization's culture; it's not like a reporter from Star Magazine or--dare I say it--a blogger found the juicy info.
On the other hand, why should the Diamondbacks receive protection from their own carelessness? That was the reaction of Jimmy Golen, a buddy of mine who writes for the Associated Press and who also has a law degree from Yale Law School, when I asked him what he thought [note: Jimmy is not the AP reporter at question; he covers the Red Sox and Patriots, among other Boston teams]:
If I remember correctly, the issue is whether the Diamondbacks would have a reasonable expectation of privacy for proprietary information left on the floor of the visitor's dugout at Yankee Stadium, after the last game of their only visit to New York. I would argue that, unlike the digging through the trash example, they don't. It seems to me that if you are extremely careless with your secrets, you lose the protection of the law; if not, you should.
If you disagree, let me ask you if you'd feel otherwise if the scouting reports were picked up by a Yankee employee (whether cleaning staff or uniformed personnel) and leaked to the AP? Or used by the Yankees for their own, nefarious ends? What if they were leaked by a disgruntled Diamondbacks scout without authorization?
What if -- not to get too grandiose on you -- they weren't the Diamondbacks' failed plans to win in New York but the Bush Administration's failed plans to win the war in Iraq, left behind in a Pentagon bathroom where the media has access? Should the principle be different because it's "just sports"?
Those are some great points in favor of the Associated Press. To amplify one of his remarks, consider the significance of the game and series being over when the reporter found the scouting report; the Diamondbacks' occupancy and related possessory rights of the dugout presumably end at some point after the game ends. What do you think?
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