Originally published by LegalTech News.
By Bob Mehr, Sr. Legal Services Advisor at DriveSavers
Tom Brady’s spoliation sanction could have been avoided, or at least different if he had followed simple information governance and preservation steps.
Football fan or not, you’ve no doubt heard of “Deflategate,” the controversy that ultimately resulted in a four-game suspension this season for Tom Brady, quarterback for the New England Patriots, as punishment for his participation in deflating game footballs during January 2015’s AFC Championship Game between the Patriots and the Indianapolis Colts.
One word you may not have heard on the sports networks: spoliation.
Spoliation: Destruction of Evidence
As stated in the April 25 decision, on or around March 6, 2015, the day Brady was scheduled to be questioned by an independent investigative team, he instructed his assistant to destroy the cellphone that he had been using since early November 2014. That same period included the AFC Championship Game and the initial weeks of the subsequent investigation.
Brady claimed he regularly destroyed old phones whenever he received a new one for the purpose of personal security. The investigators, however, had requested information from that specific phone several weeks before it was destroyed, giving Brady plenty of notice to preserve the phone and its contents.
Patriots equipment official John Jastremski’s phone revealed that Brady and Jastremski had several text and phone conversations on Jan. 19, 2015, the same day the Deflategate investigation was announced. The communication continued over the next two days. This was unusual, since there had been zero texts or calls between the two men in the prior six months.
Text conversations between Jastremski and official locker room attendant Jim McNally described gifts from Brady for Jastremski and McNally. In at least one text message, McNally was referred to as “The Deflater.”
The lead investigator for Deflategate was clear that Brady’s destruction of his phone was pivotal in his findings. “It hurt how I viewed his credibility,” he said. The investigation concluded with a report implicating McNally, Jastremski and Brady.
In a subsequent appeal, it was further emphasized that Brady willfully obstructed the investigation by making “a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce.” The spoliation sanction of adverse inference was applied, wherein it could be assumed that the destroyed phone contained evidence against Brady. Accordingly, the suspension was affirmed.
This decision was later vacated in an action filed in federal district court, but ultimately upheld by a federal appeals court. In the absence of Brady’s data as evidence, the court affirmed adverse inference as an appropriate sanction.
How Spoliation May Have Been Avoided
How could Brady’s spoliation sanction have been avoided or, at least, different?
Any business, such as the Patriots, should practice information governance (IG), keeping records of all company-owned devices. When a legal action is eminent, custodians of pertinent data can then be quickly identified for the purpose of preserving that data. Device use and information-sharing policies should be kept, updated and provided to employees on an annual basis, at minimum, as part of IG.
If electronically stored information (ESI) is lost, documentation of proper IG could lessen spoliation sanctions. From the investigation report, it appears that the Patriots performed proper IG. This enabled timely notice for Brady to provide ESI from his Patriots-provided phone for investigation.
At the first suspicion of that legal action may be on the horizon, a written legal hold communication should be sent to custodians of data. Preservation helps ensure no alteration or destruction occurs to evidence. Proper preservation may not only prevent disposal of old devices no longer in use, but it can also prevent pertinent metadata from being altered.
Despite a timely legal hold, not only did Brady continue to use the phone in question, he ordered that it be destroyed. Had he not, the phone would have been available for the investigation and an adverse inference would not have been applied as a spoliation sanction.
If preservation of the phone’s data had been attempted after its destruction, i.e., by way of a data recovery or digital forensic company, two outcomes may have been possible: The data may have been successfully recovered and therefore successfully preserved, or a documented recovery attempt may have mitigated spoliation sanctions.
It is important to note that, even as storage technology advances, so does data recovery. ESI can be retrieved from devices that have experienced mechanical failures, logical failures and even physical damage such as crushing, water or fire damage. Never assume that data is unrecoverable, especially when your case is on the line.
Physical collection of devices can aid in successful preservation of digital evidence. If data from Brady’s phone had been collected by the NFL Players Association or Brady’s legal team, he could not have altered or destroyed it.
Involvement of an eDiscovery Expert
Involving a company that specializes in e-discovery and digital forensics is an effective way to avoid spoliation. Many steps can be taken within a company, but an e-discovery expert can also work with internal IT to streamline the process. The earlier an expert becomes involved, the more time and money may be saved, and the more favorable the final outcome may be.
How an eDiscovery expert can help a case:
- Information Governance: Quickly determine the pertinent custodians through examination of company information structure and employee interviews;
- Preservation and Processing: Collect and cull large amounts of data down to a responsive data set using specialized skills, software and other tools, thereby saving a company money later on attorney and review costs; and
- Production: Produce data in any requested format, along with pertinent metadata and other digital items of importance using specialized skills and software.
Much of the evidence that was needed to sway the investigators, commissioner and the courts of Brady’s involvement in Deflategate was found on Jastremski’s phone. Besides the impact on his credibility, what does it really matter that Brady’s phone was destroyed?
The destruction of Brady’s phone brings many questions that may never be answered. Was there more on Brady’s phone? With who else might Brady have had conversations? Who else may have been implicated?
We may never know.
Bob Mehr is the legal services adviser at DriveSaves, a leader in data recovery, eDiscovery and digital forensic services.
- Wells Report 5/6/15
- Goodell Decision 7/28/15
- District Court Appeal 9/3/15
- Second Circuit Court Appeal 4/25/16