E-Discovery finds itself in the headlines of the mainstream media again. This time, the general public gets a chance to learn about the discoverability of text messages—and the potential consequences of evidence spoliation—thanks to Tom Brady and the “deflategate” scandal. (For those of you who don’t follow sports, “deflategate” refers to allegations that the New England Patriot’s quarterback played with deliberately deflated footballs in the team’s victory over the Indianapolis Colts in the AFC Championship.)
As reported by CNN Money, on the day the NFL first interviewed Brady about deflategate, he directed his assistant to destroy his Samsung phone and its SIM card. Specifically, Brady instructed him “to destroy the phone so that no one can ever, you know, reset it or do something where the information is available to anyone.” Stored on the destroyed phone were thousands of text messages Brady sent before and after the game, which the NFL sought to review to assess Brady’s potential involvement in deflating the game balls below the required air pressure.
So, if this matter ends up in court, do we have a clear-cut case of spoliation? And grounds for sanctions? Maybe. Maybe not. One of the questions a judge will need to answer is whether the texts truly are unavailable. The CNN article gives a good explanation of how text messages from a destroyed or lost phone might still be available in the cloud or on some other remote server. And the judge also will have to assess Brady’s culpability in destroying the phone. The requisite state of mind for a finding of sanctionable spoliation depends on the jurisdiction (state, federal). And if in federal court, it will depend on whether the proposed new version of FRCP 37 has taken effect and created a uniform national standard for spoliation sanctions.
In the meantime, Brady has taken to social media to tell his side of the story. My e-discovery advice to him? Better not delete that Facebook post.
Have questions about spoliation of evidence, sanctions, or the upcoming amendments to the Federal Rules of Civil Procedure? Contact me and let’s chat.
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.