From Deflategate to Spoliategate – Tom Brady Learns About The Duty to Preserve

Tom Brady may be one of the best quarterbacks in NFL history, but he seems to be repeatedly making the wrong play. After the scandal of deflategate where the New England Patriots were caught deflating game balls to gain advantage in the AFC game in January, Mr. Brady is scrambling to defend himself and distance himself from scandal. Unfortunately, he is not making it easy on himself with actions that raise concern instead of restore confidence.

Mr. Brady instructed his assistant to destroy his cell phone prior to being questioned about his involvement in the deflation of footballs during last season’s AFC championship game. Prior to the destruction of the phone, Mr. Brady was asked by NFL investigators for text messages and other electronic information stored on his phone.  As a result of the destruction of evidence, NFL Commissioner Roger Goodell upheld the four-game suspension of New England Patriots quarterback Tom Brady.

Destruction of Evidence = Spoliation

Spoliation is the destruction of documents, electronic information, or other tangible items that are potentially relevant to litigation or investigation prior to the opposing side having a chance to review it. Significant consequences such as an adverse inference sanction (an instruction where it can be assumed the evidence was incriminating to the side that destroyed the evidence) can be rendered for offenders.

When Mr. Brady knowingly asked his assistant to destroy his phone after being asked to provide the information stored on it in relation to his involvement with the football deflation issue, he willingly destroyed evidence.

Consequences for Tom Brady

As a result of Mr. Brady’s involvement in the deflategate scandal, he was suspended without pay for four games. Mr. Brady appealed the suspension, however as a result of the purposeful destruction of the phone, which eliminated up to 10,000 texts (some of which were potentially relevant) months after the league-appointed investigators requested this information, and therefore his suspension was upheld.

Did Tom Brady Spoliate?

We asked our customer community their thoughts on Tom Brady’s actions and what they thought. Not only did they agree that he did spoliate evidence, but they also felt the NFL suspension of only four games was a light penalty. Here are some of the answers we received.

“The most unfavorable evidence against Tom Brady is that he destroyed his cell phone. We all pay a premium for our phones. We’re on them incessantly. And we’re approaching the level of affection for our phones, that we feel for our pets. So destroying one’s phone isn’t something done for no reason.”

Nicholas Watson

“Absolutely, he did. The Patriots legal department should have worked with to preserve all e-evidence because of the obvious expectation of an investigation. Whether they did or not should be investigated. In the case of the NFL, I think they should have been tougher and send a message to the players and their union that cheating will not be tolerated. At the moment, it looks as if the players union is dictating the pace of this investigation and that is not good.”

David Papson-Adams

“I think the NFL could have been tougher but I’m glad they realize the spoliation is cause to not consider his suspension appeal.”

Jennifer Chermoshnyuk

“Definitely could have been much tougher from a penalty standpoint. Not only was there spoliation on Brady’s fault, but some responsibility should have been placed on the NFL or the Patriots to preserve every potential source of data.”

Tony L.

Lessons About the Duty to Preserve That Corporations Can Takeaway From Tom Brady’s Experience

Corporations can take heed of this tale to ensure they have policies in place to appropriately adhere to their duty to preserve electronic evidence and avoid spoliation of evidence.

  1. Issue a legal hold notice to those employees or other data custodians who are likely to have relevant information to a matter, as soon as litigation/investigation can be reasonably anticipated.
  2. Include a description of the types of information required for each individual to save including dates, data types, documents, and make sure the custodian’s supervisor and IT are aware of the hold.
  3. Suspend automatic deletion programs when information is subject to a legal hold to avoid inadvertent destruction.
  4. Have a process to determine when a hold can be terminated so that regular deletion programs can resume and held data can be disposed according to retention policies and requirements.
  5. Automate where possible, and document your processes and rationale. With an audit trail comes greater confidence and defensibility.