It is not really much of a secret that I am not a fan of New England Patriots QB Tom Brady. Those of you who follow this blog and are also fans of American Football (I am sure at least some of you exist) are undoubtedly aware of the #deflategate fracas surrounding the Patriots’ game vs. the Indianapolis Colts during last season’s playoffs. (For those of you who weren’t, the TL;DR version: The Patriots were accused playing with underinflated balls, which makes them easier to handle and catch and makes a material difference because each team brings its own balls to games.) An investigation ensued, the NFL released a report indicating that it was “more probable than not” that the balls were deflated on purpose and with Brady’s knowledge, and yesterday Mr. Brady was suspended without pay for 4 games for the 2015 season due to his role in the affair. I may or may not have declared myself “the happiest boy in the world” to my wife last night upon hearing this news.
But this post is not about Brady Schadenfreude! (Well, *mostly* not.) It is about the following nugget from the NFL’s official statement about the case:
Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.
It’s a records management issue (Sort of)! I really am the happiest boy in the world. Tom Brady was asked to turn over electronic documents to help the NFL determine his responsibility in this matter, he refused to do so, and the NFL factored that in to his eventual punishment. Does that sound like sanctions for spoliation to anyone else? It sure does to me.
Now, a few caveats here: The proceedings were part of a conduct investigation strictly internal to the NFL, rather than a civil or criminal suit in open court. There was likely no formal discovery request, no “meet-and-confer” requirement, and the “Safe Harbor” rule probably wouldn’t have applied to (or protected) Brady in this case. But in its effects, this is basically the same– because Brady was unwilling to produce evidence as requested by the NFL, the investigating body made an assumption that the missing evidence would be materially harmful to his case, and altered the punishment accordingly. It was “a culpable failure to preserve and produce relevant electronically stored information, and [presented] a reasonable probability that the loss of the evidence has materially prejudiced the adverse party” , which the Sedona Principles explicitly calls out as reasons for courts to consider spoliation sanctions.
The upshot of all of this: when you’re talking to your “front line” employees, name-dropping Zubulake and the Sedona Conference isn’t going to mean much to them in terms of legal responsibilities to produce electronically stored information and/or destroy records according to defined retention schedules. Name dropping Tom Brady, on the other hand, may be another story. “Tom Brady’s punishment was made more severe by his failure to cough up emails and text” seems likely to at least get their attention, and lets you draw direct connections to the records they are producing and maintaining for your organization.
Yes, it’s true that the “sanction” in this case is based on the NFL’s internal judgment rather than the Federal Rules of Evidence, and so the parallel isn’t exact. If your employees know enough to point this out, a) I’m impressed, and b) you do need to have an explanation of how the law re: their public records and/or discovery responsibilities differ. That said, I won’t tell if you won’t.