Lessons from Tom Brady – Why Evidence Preservation Is So Important
November 3, 2016
I’ll be the first to admit, as a huge Baltimore Ravens fan, that my heart was warmed by the news of New England Patriots’ Quarterback Tom Brady’s four-game suspension for his role in Deflategate.
In January of 2015, the NFL determined that 11 game balls used by the Patriots in the AFC Championship Game victory over the Colts were underinflated, a potential advantage to a quarterback in gripping the ball. A subsequent NFL investigation concluded the deflation of the balls was deliberate and part of a common practice orchestrated by Brady with assistance from team personnel, but not coaching staff. The team was hit with a heavy fine and forfeiture of a first round draft pick—serious punishment which the team accepted.
Brady received a four game suspension, but he fought it, first through arbitration and then through legal appeals. The case went forward until in July 2016, the U.S. Second Circuit Court of Appeals denied a petition by Brady and the NFL Players Association (NFLPA) to rehear his case. Rather than take the case to the U.S. Supreme Court, his only remaining legal option, Brady opted to discontinue legal proceedings and accept his suspension.
As a legal professional who has been practicing law for nearly 20 years, it was something that happened much sooner than July, however, that piqued my interest.
Spoliation of evidence is the term used when someone destroys or otherwise fails to preserve evidence that could be relevant to a dispute likely to result in litigation or that is in litigation. I thought the case was over when the news came out that Brady destroyed his cell phone on the same day he met with an NFL investigator. The intentional, reckless or negligent withholding or altering of potentially relevant evidence in a legal proceeding can lead to criminal prosecution, civil fines and even dismissal of claims or the inability to defend against claims. Furthermore, Brady’s destruction of the phone despite a clear indication of the importance of his cooperation, led to the presumption that he did so to conceal unfavorable or damaging evidence.
What Does This Mean for Businesses Today?
In 2016, the majority of business is conducted electronically. However, there may no longer be a paper trail, there very much exists a duty to preserve electronic records and evidence where it can reasonably be anticipated they will be relevant to a legal proceeding.
Organizations today have a lot of responsibility to institute protocols to preserve relevant information. In a discussion I had recently with the general counsel of an organization, he raised a similar concern as the reason why his first priority was instituting a common policy throughout the company’s locations to preserve security camera footage which may capture incidents involving his company’s guests. His fear was that the company could be made aware of an incident, not preserve the footage, then years later be faced with an injury claim but no longer have footage of the incident. That could greatly hobble their defense of the claim and possibly lead to a claim of evidence spoliation.
For businesses, as in Brady’s case, though the substance of a potential claim may be dubious, the failure to preserve electronic evidence can become the central issue in a case and lead to a presumption that the information would have had a negative impact on a potential defense. Businesses can’t drop the ball on this – it’s imperative that they create and implement an electronic information retention policy and preserve information relevant to future disputes.
Do you want to talk about what your company should be doing? Call me at 410-986-0850 or send me an email at firstname.lastname@example.org.