Since Roger Goodell broke the Internet on Tuesday by upholding Tom Brady’s four-game suspension for deflating footballs, every NFL fan and critic has suddenly turned into a lawyer.
Lost amidst the speculation and prognostication about appeals, lawsuits, injunctions, and venues is the bombshell contained in Roger Goodell’s decision that Brady destroyed the cellphone he used before, during and after the critical AFC title game against the Colts last year.
From November of 2014 until March of 2015, Brady sent and received nearly 10,000 text messages — most of which are now gone thanks to the coincidental death of the phone ON THE SAME DAMN DAY TED WELLS INTERVIEWED BRADY.
It is amazing how life is always more entertaining than fiction. As Goodell stated in his decision:
At the time he arranged for its destruction, Mr. Brady knew that Mr. Wells and his team had requested information from that cellphone in connection with their investigation. Despite repeated requests for that information, beginning in mid-February 2015 and continuing during his March 6, 2015 interview by the investigators, information indicating that Mr. Brady might have destroyed his cellphone was not disclosed until months later, on June 18, 2015, and not confirmed until the day of the hearing itself.
First of all. The NFL has no right to Brady’s cell phone. The NFL is not a law enforcement entity and it was not operating pursuant to a court-issued subpoena. Most importantly, the NFL and Brady were not yet engaged in civil litigation. Therefore, Ted Wells’ requests did not carry the same weight as a written interrogatory or request for production of document as is typically used during the civil discovery process.
In that respect, Brady seemingly had every right to throw up a one-finger salute and send his phone to the bottom of the Atlantic.
Except that this isn’t ‘Nam and there are rules — particularly about the destruction of evidence. These rules against the destruction of key evidence is what allows this country to maintain a legitimate civil justice system.
Although evidence and civil procedure are governed by differing rules depending upon the jurisdiction of a given case, there is a general duty among potential litigants to preserve vital evidence.
Specifically, the duty to preserve potentially relevant evidence may arise before the filing of a lawsuit if it is reasonably foreseeable that a lawsuit will be filed. It does not matter if the individual or organization is the initiator or the target of litigation, as the common law duty to preserve evidence arises at the moment that litigation is reasonably anticipated. The situation can arise, for example, if an individual or an organization plans to initiate litigation, a potential defendant receives a demand letter, a company learns that a former employee is seriously contemplating a lawsuit, or if an event or other circumstance would reasonably put an organization or an individual on notice that a lawsuit is likely to be filed.
In Brady’s case, his or the NFLPA’s attorneys will have to argue that litigation was somehow not reasonably foreseeable or anticipated despite every sports show talking head predicting that this situation would end up in court from the first day of the scandal. It seems highly implausible that a reasonable person in Brady’s situation would not foresee litigation and not think to preserve a cellphone after receiving multiple prior requests for it.
In addition, Federal Rule of Civil Procedure 37(e) states that:
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Once again, Brady will try to argue that he routinely destroyed cell phones and that it was a giant coincidence that he happened to get rid of thousands of relevant messages on the same day investigators interviewed him.
So why does this actually matter? Well, because destroying his cell phone could ultimately crush any chance of success in a subsequent appeal or lawsuit due to sanctions allowed in every state and federal court.
As Federal Judge Francis Allegra aptly summarized in United Medical Supply Company, Inc. v. U.S., 77 Fed. Cl. 257, 259 (Fed. Cl. 2007):
Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings—erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go missing, judges and litigants alike descend into a world of ad hocery and half measures—and our civil justice system suffers.
Since Brady purposefully instructed his assistant to destroy his phone on the same day of his interview with Ted Wells, I would fully expect the NFL to seek spoliation sanctions. These sanctions can include the outright dismissal of a case, monetary penalties, or the dreaded adverse inference jury instruction. This means that if Brady or the NFLPA sues the NFL, the judge could instruct a jury that they are allowed to draw an inference that the evidence contained in Brady’s phone would have been unfavorable to his case.
In most circumstances, an adverse inference is akin to an outright dismissal of the case since the jury (or sometimes the judge) is allowed to assume that whatever evidence was destroyed would have made the destroying party look awful.
There is no doubt that the NFL’s legal team will pursue an adverse inference. In Goodell’s decision letter, he states:
there was an affirmative effort by Mr. Brady to conceal potentially relevant evidence and to undermine the investigation. Mr. 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.
Finally, in footnote 12 of Goodell’s decision, he hints that Brady was acting under the advice of his attorneys. If true, his attorneys could also face severe sanctions, and even potential disbarment, if they actually ordered the destruction of highly relevant evidence.
At this point, both the NFL and Brady appear set for a lengthy court battle. However, Brady’s chances of success are drastically reduced due to his willful destruction of evidence. Even attempting to gain an injunction becomes exponentially more difficult as Brady’s likelihood of success on his overall claim is clouded by the lingering civil sanctions for destroying his phone.
Brady is a great quarterback. He happens to play for a team I hate, but he is a force on the field. However, his decision-making off the field in this matter could both begin and accelerate his downfall.
Steve Silver is the founder of TheLegalBlitz.com. He is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia. You can reach him at steve@thelegalblitz.com or on Twitter @thelegalblitz.
Image via Getty Images.
