Why is the Tom Brady saga referred to as “Deflategate”? As many know, the penchant for adding the suffix “gate” to any scandal stems from the infamous 1972 break-in at the Democratic National Committee’s headquarters at the Watergate office complex and the Nixon Administration’s efforts to cover up its involvement. Ultimately, President Nixon’s attempt to conceal his involvement, which included hiding and destroying evidence, ended up being more damaging than the underlying misconduct of a bunch of petty burglars.
So, now comes the New England Patriots’ superstar Quarterback, Tom Brady. The Super Bowl Champion with the impeccable reputation. Caught in a scandal over improper air pressure in footballs, which, by the way, were used in a game his team was winning convincingly before the balls were deflated. The evidence of his complicity in the scandal appears circumstantial, at best. Yet, the NFL imposed a stiff 4 game suspension, without pay. His ego and his wallet both deflated, Mr. Brady appealed the punishment. But the NFL upheld its decision due, in part, to the revelation that Mr. Brady destroyed critical and potentially relevant evidence – his cell phone and the 10,000 text messages it contained. The NFL, irked by Mr. Brady’s lack of cooperation and destruction of evidence, seems confident a Court will agree that Mr. Brady’s conduct supports the discipline the NFL imposed.
In the legal context, Mr. Brady’s destruction of the cell phone is referred to as spoliation of evidence. Often, parties who are found to have destroyed evidence suffer more than had they simply produced the evidence in the normal course of litigation. Spoliation gives the impression that you have something to hide and may permit a court to instruct the jury that the offending party is liable for the underlying misconduct. Importantly, in addition to being improper, spoliation deprives you and your counsel of the opportunity to explain your side of the story — and there are almost always two sides to every story.
While it’s fine to have document and email retention policies pursuant to which a company regularly discards documents, as otherwise permitted by law, once a company is on notice of a potential claim or a threatened lawsuit, you must ensure that relevant documents are saved. In our world of electronic communications it may seem easy to delete content and get away with it, but the reality is a good forensic expert can find most anything. So don’t try to hide evidence, no matter how damaging you may think it is. Tom Brady’s conduct and the NFL’s reaction to it serves as a good reminder to make sure your company’s processes include the dissemination of and compliance with litigation hold notices as soon as you learn of an actual or even potential claim.