Over the past year, e-discovery issues have splashed the front pages of the newspapers even outside of the Court system. We learned about Hillary Clinton's email and document retention practices, and the Sony data breach exposed sensitive emails discussing the importance of corporate document retention policies. This week, Tom Brady of the New England Patriots made the news for a different e-discovery issue, namely, for the spoliation of evidence (text messages) on a cell phone that he destroyed during a pending NFL investigation into "Deflategate".
For those unfamiliar with the investigation, the New England Patriots, en route to a Super Bowl victory this past season, were accused of illegally deflating footballs moments before a January home playoff game against the Indianapolis Colts, so that their quarterback, Tom Brady, could maintain a better grip on the ball during the game. It was determined that the footballs were indeed deflated and that human tampering was the cause, and the investigation primarily centered on who in the Patriots organization knew of, or participated in, the alleged scheme.
Though direct evidence of Brady's involvement seemed relatively scant and the findings against him in the May 11th "Wells Report" were not particularly forceful, the investigators found that it was "more probable than not" that Brady was "generally aware" the balls had been deflated. As a result, Brady was suspended for four games in the upcoming 2015-16 season.
Brady, through the NFL Players Association, promptly appealed his suspension. The NFL's Commissioner, Roger Goodell, presided over the hearing and rendered his 20-page decision on July 28th.
During the appeal, it was learned that on March 6th (the day that he was interviewed by the investigators), Brady instructed his assistant to destroy his cell phone, which Brady had been using since November 2014, including just before and after the playoff game at issue. It was estimated that Brady's cell phone contained almost 10,000 text messages that were sent or received by Brady during the four months the phone was in use. Brady explained that it was his practice to destroy his cell phone and SIM cards upon getting a new cell phone, which he did on or about March 6th. Undermining his argument, it was noted that Brady failed to explain why the investigators were able to retrieve text message and other data from a prior cell phone, which Brady stopped using in November 2014 but had turned over to the investigators. Regardless, the cell phone at issue and all of its most crucial text message data was no longer available, and a letter from Brady's cell phone carrier confirmed that the text messages sent or received by the destroyed cell phone could no longer be recovered.
As found by the Commissioner, when Brady arranged for the destruction of the cell phone, he was aware of the investigators' pending requests for text messages and other information from the phone. As a result, Goodell determined that Brady not only failed to cooperate with the NFL's investigation, but more, he "made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce." In other words, Goodell found, "there was an affirmative effort by Mr. Brady to conceal potentially relevant evidence and to undermine the investigation."
As a result, the Commissioner found that Brady's conduct "gives rise to an inference that information from his cellphone, if it were available, would further demonstrate his direct knowledge of and involvement with the scheme to tamper with the game balls prior to the AFC Championship Game." Goodell concluded that because the NFL relies on its clubs, owners, players and employees to cooperate with pending investigations, the league is "entitled" to "impose sanctions when such cooperation is not forthcoming [or] when evidence is hidden" and to "draw an adverse inference from the lack of cooperation."
In upholding the 4-game suspension as Brady's punishment, the Commissioner found that Brady's conduct – in interfering with both the game officials' responsibilities regarding the equipment and the league's investigation into "Deflategate" – was "detrimental" to the league. In other words, Goodell found that Brady's actions would result in the "impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players."
The rules of discovery in civil litigation do not have any apparent application in NFL investigations and appeals, so it is very interesting to see Goodell's decision cite much of the same language that the courts use when imposing similar adverse inferences against litigants who destroy or spoliate evidence. Perhaps by issuing these "sanctions" in his decision, Goodell offered a glimpse of one of the primary arguments the NFL will raise in Court, should Brady bring a civil lawsuit to overturn his suspension. Certainly, the spoliation issue now has to be at the center of Brady's mind when deciding his next move – to go for it in the courts or to simply "punt."
Throughout this saga, Tom Brady argued that there was insufficient evidence to show that he was involved in deflating the game day footballs. As it turns out, however, by disregarding the investigators' requests for his text messages and destroying his cell phone, Brady let the air out of his own case. Welcome to the world of e-discovery, NFL.
The NFL's complete decision can be found here:
https://nfllabor.files.wordpress.com/2015/07/07282015-final-decision-tom-brady-appeal.pdf
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