Another offseason, another scandal involving Ryan Braun and performance-enhancing drugs.
Perhaps the above statement is a little overstated. What we really have is a Yahoo! Sports report of Ryan Braun’s name on a piece of paper, indicating that he owed money to Tony Bosch. The document in question mentions nothing about performance-enhancing drugs, nor does it mention any supplement whatsoever. However, the problem lies in the fact that Bosch owned Biogenesis, an anti-aging clinic, which was recently connected to PEDs in a story by the Miami New Times.
And given the fact that mere whispers of performance-enhancing drugs seemingly causes the majority of the baseball world to immediately foam at the mouth, journalists and fans began connecting the dots between Braun and Biogenesis. Within an hour, Braun found himself firmly entrenched in the exact same conversation we all spent months debating last winter. He used performance-enhancing drugs and is merely hiding behind legal technicalities to maintain his innocence.
I’m not going to spend much time outlining why I believe a mere name in a ledger — without any mention to PEDs — doesn’t pass for indisputable proof. I believe Braun may have used performance-enhancing drugs, but this latest report is certainly not the damning evidence. That should be obvious. What I wanted to discuss, however, is the interesting discussion that has spun from the original report from Yahoo! Sports on Tuesday evening.
Ryan Braun subsequently released a statement outlining his connection to Bosch and why his name would be included in a ledger under “money owed.” He utilized Bosch as a non-testifying expert in his successful appeal last winter (of which there were many), and the two sides reportedly disagreed upon how much was owed for his consultation.
This, of course, caused a bit of a windstorm. Why would Ryan Braun reach out to someone who has known connections to PEDs? He isn’t even a real doctor, is he? Doesn’t that seem odd? In reference to that point, please read this FanGraphs article written by Wendy Thurm. She employs her 20 years of legal expertise to help add much-needed clarity to that question.
On Wednesday, Tom Haudricourt went a bit further and suggested Braun and his lawyers should simply produce documentation of the relationship with Bosch. Some emails or other correspondence should surely exist and put this issue to rest. And the longer Braun goes without bringing forth evidence, the more dubious his claims become, right?
I admit that I had the same thoughts on Tuesday evening when trying to process the story reported by Yahoo! Sports.
Immediately, however, baseball writers and friends that possess legal experience warned that disclosing such documentation or evidence would jeopardize attorney-client privilege, and that privilege is one of the most sacred doctrines in law.
@jp_breen Not if he was used as a non-testifying expert. Then his work would be protected by atty-client privilege. Tricky area.
— Wendy Thurm (@hangingsliders) February 6, 2013
That certainly made sense to me. Of course, numerous rebuttals followed saying Braun could voluntarily waive his privilege in regards to Bosch and release the document. If he honestly has nothing to hide, what harm comes from letting people see the truth?
Following this lengthy (and somewhat convoluted) discussion on Twitter, a source with significant legal experience who requested to remain nameless reached out to me and offered a more nuanced an informative explanation of why Braun will almost certainly not waive any privilege and will not disclose any documentation.
The first point the source wanted to clarify was that Braun would not be waiving his attorney-client privilege. Instead, he would be waiving something called Work Product privilege, which the source described as:
Any documents or record containing attorneys thoughts, mental impressions, or anything that was prepared in anticipation of litigation (whether or not it’s used for that purpose ultimately is irrelevant). If your attorney is trying to figure out how much you’ve been harmed and puts together a spreadsheet of costs you’ve incurred, that’s work product.
Clearly, any sort of consultation work between Bosch and Braun’s attorneys would have been in preparation for his appeal defense last winter, so any documentation or communication with Bosch would fall within the Work Product privilege. In order for anything regarding Braun and Bosch’s relationship leading up to the appeal to come to light, Braun would have to waive this privilege. That’s certainly within his rights. It would probably ease many questions and slow down the plethora of articles that have been written over the last 24 hours insinuating his guilt — such as this article by Jon Paul Morosi and this article by Rob Neyer.
The source warned, however:
There is another, harsher doctrine called ‘subject matter waiver.’ Basically, if you turn over a privileged document about screwdrivers (for example), the opposing side will then claim they’re entitled to ALL the docs about screwdrivers. Usually courts won’t grant this, but usually you have some protections in place in a litigation setting and usually it’s an accident.
In Braun’s case:
1. He’s not currently in litigation, and
2. A waiver for PR purposes would be INTENTIONAL, and
3. Self serving.
I think any judge would grant subject matter waiver in this case. It wouldn’t be accidental. When you waive on purpose, you waive on purpose, and a judge won’t protect you for waiving on purpose.
He’s not in any litigation now, but that waiver is good for all future litigation. Once a document is out, it’s out FOREVER. If Major League Baseball hypothetically sued Braun for anything: fraud, libel, etc., even if that case didn’t have much merit, they could quite possibly get their hands on all of the discussions Braun’s lawyers had with Bosch, and maybe even more than that.
Essentially, Braun and his attorneys could open a Pandora’s Box down the road to potentially save face regarding this one (very flimsy) report by Yahoo! Sports. Legally, according to this source, it would be safer for Braun to simply ride out the storm and live to fight another day, rather than fight this report and leave himself vulnerable to future, more significant attacks from Major League Baseball.
Whether that’s morally comforting is unimportant when discussing whether an individual should consider waiving his privileges in legal matters. Ryan Braun and his legal team are simply doing what’s best to protect Ryan Braun right now and in the future. And considering the fact that both Major League Baseball and some overzealous journalists desperately want to prove his successful appeal last winter was based upon a technicality and an overall sham, can you really blame him?