Stealing signs is definitely cheating. But can it be considered theft of trade secrets? A creative lawsuit says "yes."

 

More on Sheryl Garko.

 

SPEAKERS

Sheryl Garko, Wayne Stacy

 

Wayne Stacy  00:00

Welcome to the Berkeley Center for Law and Technology's Expert Series podcast. I'm your host Wayne Stacey. And today we're here to talk about trade secrets, baseball, and stealing signs. It's an odd combination, but luckily we have Sheryl Garko from Orrick. to guide us through this rather odd topic today. Sheryl is a partner at Orrick and a nationally recognized IP litigator. not associated with either the Houston Astros or the Toronto Blue Jays. So Sheryl, how do we get from the world of trade secrets, which is usually about, or rather people think it's usually about high technology. But now we're all the way to baseball. How do we get there?

 

Sheryl Garko  00:43

So this all comes out of the Houston Astros sign stealing cheating scandal that folks may recall. So this all kind of broke in 2019 2020. But related back to some conduct that occurred during the World Series and during the 2017 baseball season, then heading into 2018. This all came about because there was an article that was reported I believe in The Athletic that talked about the fact that the Astros were stealing signs stealing pitching signs, and it was subsequently confirmed by one of the Astros pitchers that was played on the team during that series, but that was in fact it was happening. So based on that, Major League Baseball launched an investigation, and in early 2020 confirmed that this was in fact the case. That the Astros had placed a camera out in centerfield to capture the pitching signals, and was relaying that video feed back to the dugout, where folks from the dugout would then communicate to the batter, what the pitch was that was coming. And it seems like this evolved a little bit in terms of their scheme where initially they were trying to clap or whistle, to demonstrate to tell the hitter what the signal was. And it eventually evolved to a they were banging on a trash can. And that a bang on the trash can meant that it was an off speed pitch. And no bang meant that it was a fastball that was coming. Because of that, there was a pitcher for the Blue Jays, he pitched during 2017 who claimed that he had an absolutely disastrous game, because the Astros were using the signal stealing scheme against him. And it resulted in him just having a terrible performance where I think he was up there for just a small portion of an inning and had four hits off of him. And he was subsequently sent down to the Minors immediately following that game. So he went on to say, to not have a particularly illustrious career following that. He spent some time in the Minors and then apparently, according to his pleadings, wasn't able to get a job in US baseball after that. And so he's been struggling a bit. So as a result, he filed a complaint against the Houston Astros, claiming that they misappropriated the Blue Jays or rather his trade secrets in those pitching sites.

 

Wayne Stacy  03:01

This sounds like a classic case of cheating, orchestrated by a group that never saw Ocean's 11. This was not well done. Though, it seemed to be effective until they got caught. But how do we go from cheating in a baseball game to a trade secret lawsuit?

 

Sheryl Garko  03:18

Yeah, so the claims are, you know, it's a creative tactic for sure. So the claims revolve around the fact that the pitcher was Michael Bolsinger. Basically, he says that those signals were his trade secrets that meet the definition of a trade secret that they were kept secret