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1

SPOILIATE GATE

SCRIPT

PART I

Narrator:

On January 18, 2015, the New England Patriots and the Indianapolis Colts

battled it out at the now infamous AFC Championship Game where Tom Brady,

quarterback for the Colts, won the day… or lost it depending on who you ask.

During the second quarter, the Colts unexpectedly intercepted a ball that they

immediately suspected to be underinflated. According to the NFL rules, game

balls must be between 12.5 and 13.5 pounds of pressure per inch or psi. It was a

well-known fact within the Patriot organization that Tom Brady, the famed

quarterback for the Patriots, required that all game day balls be no more than

12.6 psi, preferably 12.5. Tom was also well known for being married to the

famous Victoria Secret Super Model, Gissell Bunchen. Tom believed that balls at

this inflation level produced more accurate passing. Authorities inspected the

game ball and found that it was, indeed, underinflated, although several factors

could have accounted for that fact during the game.

After the Patriots stunning victory, with a score of 45 to 7, it was determined

that all Patriot game balls were underinflated. The NFL hired attorney Ted Wells

to conduct an investigation that became nationally known as “Deflate Gate”.

In the 125-page “Wells Report”, Mr. Wells outlined an exhaustive series of

interviews, as well as the analysis of numerous scientific and environmental

factors that could potentially account for Tom Brady’s SOFT balls.

The Wells Report found the following facts:

1. Tom Brady instructed Patriot staff to deflate game balls after they

were approved by the Head Referee, Walt Anderson. This would have

possibly been permitted only if they were no less than 12.5 psi after

the later deflation.

2. After the game, all of Brady’s balls were found to be inflated below

12.5 and therefor were not hard enough by NFL standards.

2

3. The NFL sanctioned Tom Brady for masterminding the deflated ball

scheme by suspending him from four games, and financially

sanctioned the Patriot’s organization for enabling him.

4. The Patriots appealed the four game sanction against Tom Brady to

Commissioner Roger Goodell.

5. On July 28, 2015, Commissioner Goodell affirmed the sanction against

Tom Brady. He also concluded that Tom destroyed his personal cell

phone on the day it was ordered turned over for examination.

6. The phone had contained approximately 10,000 text messages and

calls from a four-month period beginning in early November 2014

through the weeks following the January 18, 2015 AFC game.

The Patriot staff involved in this scheme were John Jastremski (JJ), an

assistant equipment employee close to Tom Brady, and James (Jimmy)

McNally, an employee who oversaw the Official’s Locker Room where

the referees stayed before and during the game. Mr. McNalley’s duties included

assisting the officials inspecting the game balls and testing them for psi within

the league rules. He was also one of the employees who could take the

approved game balls out to the field. Although employees are supposed to do

this with an escort, Mr. McNalley’s longevity with the team allowed him to take

the balls out to the field unaccompanied about 50% of the time.

This skit examines the deflation scheme, the circumstances surrounding the

destruction of Tom’s cell phone, the current state of the law regarding the

destruction of evidence, and the legal consequences as such actions. Names

have not been changed to protect the innocent. Some of the exchanges are real,

taken from the various reports and decisions, some are not. In the end, you and

the judge can come to your own conclusions.

SCENE I.

Phone call between JJ Jastremski and Jimmy McNally:

JJ: Hey Jim, we have a problem. Tom’s not happy with his balls. What’s up

with you, dude? You know how he likes his balls. Most of the balls this week

were at 12.5 psi, and one looked even higher than that!

Jimmy: Oh yeah? Well, Tom sucks. Tell him to keep complaining and I’ll make

those things as hard as bowling balls.

3

JJ: What’s wrong with you? You know Tom likes HIS BALLS soft. You had

better start paying attention or Tom will have you busted out of Candyland.

Jimmy: Stop pressuring me! I know what Princess Tom wants! You two are

getting pretty demanding under the circumstances. Maybe you’re the ones that

need to be worried; I can go to ESPN any day.

JJ: Whoa, buddy! It’s not like you’re not getting anything out of the deal! Tom

has held up his end. You better stop talking smack… I’d hate for anyone to

misinterpret you.

Jimmy: Whatever.

SCENE II.

Next meeting between JJ and Jimmy

John: Jimmy my man! Big game coming up…I’ve got some a big new needle

for you.

Jimmy: That needle better be tucked in with lots of goodies and new “kicks” or

the only thing that going to be deflated is Brady’s passing record. After all, I’m

the one taking all the risks here!

JJ: Yeah, yeah, yeah… I know, you can be had for the right price. Tom’s got

two autographed balls for you and he’s promised to give you his game day jersey

soaked with his Nectar of the Football Gods sweat. You should be able to get a

pretty penny for that.

Jimmy: I’d rather have something soaked with Giselle’s sweat. THAT would

bring a pretty penny, and what about the new kicks I ordered? I need size 11 or

11.5.

JJ: No problem with the kicks, Jimmy. We’ve got you covered. But you’d better

not let Tom hear you talking smack about Giselle’s sweat, feathers, or anything

else. You know how insecure he is about her being a Victoria’s Secret model!

SCENE III

Tom Brady and JJ talking on cell phones the day before the AFC game

Tom: JJ, I left an NFL Rulebook with the inflation levels of the balls highlighted

in your office. See it? It says “12.5 to 13.5 psi. Give this to the refs to make

4

sure they know our balls at 12.5 are legal. I just want to make sure everyone

knows that we know the proper level of inflation. You got it?

JJ: I got it Tommy boy, relax, I got it. I’ll give it to Jimmy when he deals with

the officials. The rest is handled.

Tom: It had better be. It had better go as smooth as silk with the ball floating

over the heads of those lame Colts into our end zone.

JJ: No worries, Tom.

SCENE IV

Officials’ locker room, JJ, Walt Anderson and Jimmy looking at game

day balls.

Jimmy to Walt Anderson: Tom asked me to tell all of you officials that he

likes balls at the lowest psi permitted. I’ve got a copy of the NFL rules

referencing the lowest level is 12.5. Here you go…see this part where it’s

highlighted…

Anderson: What the hell is this? We don’t need to be reminded of the rules!

We’ve done this once or twice before, you know.

Jimmy: Sure, sure, Mr. Anderson, I know. But you know how these prima

donna Quarterbacks get before big games.

Anderson (squeezing balls): “This one and this one are a little flat. Add ¼ psi.

I don’t care if Big Shot Brady thinks they’re too firm. The rest of the balls are

fine. McNally, I guess you’re the one that takes the balls to the field?”

Jimmy: Yes sir. I’ve got that all under control.

Narrator:

Jimmy takes the two bags of approved balls and starts to the field. On the way,

he stops in a bathroom (with a big needle) and emerges about a minute and a

half later. He continues with the balls to the field. At half time all of the Patriot

balls are tested and determined to be underinflated. We now go to the days

after the game.

SCENE V

Tom and John discuss what story to spin on the deflated balls.

5

Tom: Heads up, JJ! You’ve been named in this deflated balls crap. Don’t worry

though. The league will flex its muscles and get to bottom of this. No one is

blaming you of course. I’ll take care of you. You just tell the truth – you dealt

with Anderson, balls fine, you left and went to the field and that’s all you know.

Got it?

JJ: Well Jimmy says the problem was those kids catching the balls from the

field. I guess they got the practice balls mixed up with game balls. You know

what I mean? Practice balls are softer. So some of the game balls were really

practice balls. I’ve told those managers over and over to keep those damn kids

off the field.

Tom: Jimmy’s got a good idea there… I like it. Just stick to the facts and we’ll

come out of this okay.

Narrator: Some weeks go by and the investigation heats up. There are many

demands for Tom Brady’s cell phone on which much information about his

involvement should be found. Tom meets with his college friend Frank (Francis)

Fumble who is a Cannabis Attorney in Washington State visiting Boston.

SCENE VI

Tom gets advice from lawyer Frank (or Francis) Fumble, a college

friend.

Tom: Frank (Francis), Good to see you. Thanks for meeting me for lunch. I

need your advice with a big problem. You’re the only one I can trust and I want

to your professional opinion. What’s that thing where there’s a privilege, like

where you can’t tell anyone what I’m saying? So we got that now, Frankie,

right? [Frank nods solemnly] There’s a lawyer named Ted Wells who is doing an

investigation about those damn footballs they say were a little flat during the

AFC game last January. He wants my cell phone. If they get my cell phone, I’m

screwed. There must be over 10,000 texts on that phone. Some are between

me and Giselle discussing personal stuff, if you get my meaning. I can’t let that

stuff hit the media. We’ll be laughed at all over the world.

Frank: Tom, you know I only do cannabis work in Washington and Colorado. I

don’t know anything about sports law. In my world, I’d say this is easy. You’ve

got no problem if you’ve got no phone. Tell them you gave your old phone to an

assistant’s kid when you exchanged for new phone. That’s your usual practice

6

wasn’t it? A new phone every 6 months? Why haven’t you talked to one of your

team lawyers about this?

Tom: I just want to smash the phone into a million teeny tiny pieces and throw

the damn thing in the ocean! I don’t trust those high priced lawyers in their suits

and ties and Gucci watches. I need real life advise, not some page out of a

freaking law book.

Frank: I can’t tell you to destroy the phone. Tommy boy. That could be

considered destroying evidence and you can’t do that. But I still don’t understand

why you just don’t give it away?

Tom: I told them that already and they wanted to know who I gave it to blah,

blah blah. Plus I just got a new phone in November and it’s just March so it’s a

little early in my program to switch phones.

Frank: No one’s going to be that picky. You’re Tom Brady for god’s sake. No

one will think you did something wrong. But I guess that does mean that the

phone still exists. Why not say one of the kids threw it in the toilet and flushed

it?

Tom: I thought of that but kids talk. What’s the worst that can happen to me if

something happens to the phone?

Frank: Well the judge can yell at you, maybe fine you, but if there’s no phone,

there’s no phone. Can’t make something reappear that’s gone. Just don’t tell

me about what you decide to do. I know nothing, dude.

Last scene is Tom smashing the phone with a big hammer.

PART II

(United States District Court for the Southern District Of New York)

Narrator:

While Tom Brady won and his suspension was lifted, allowing him to play, he and the NFL are now squaring off in an appeal. Meanwhile, despite the lifting of the suspension, and the trial court has ordered a spoliation hearing to address whether Brady’s actions in destroying his cell phone were spoliation of evidence and, if so, what sanctions are appropriate in a jurisdiction like (New York or Massachusetts or Washington) where there is no independent tort of spoliation.

7

Brady’s spoliation played a major role in Roger Goodell’s decision to uphold Brady’s four-game suspension as a penalty for his decision to destroy his cell phone and all of the text messages on it the same day he was being interviewed by the outside law firm the NFL hired to investigate the alleged deflating of footballs by the Patriots in the AFC Championship Game with the Baltimore Ravens.

Brady claimed on his Facebook page:

I also disagree with yesterday’s narrative surrounding my cellphone. I

replaced my broken Samsung phone with a new iPhone 6 AFTER my

attorneys made it clear to the NFL that my actual phone device would not

be subjected to investigation under ANY circumstances.

Brady did not mention the decision to destroy his phone to the NFL until his appeal four months later. Brady later filed suit in Minnesota – a notoriously “player friendly” forum, but the NFL successfully moved to transfer venue to the Southern District of New York where Judge Berman, who in his opinion striking down Brady’s four-game suspension wrote:

Brady contends that "[n]o player suspension in NFL history has been sustained for an alleged failure to cooperate with- or even allegedly obstructing- an NFL investigation." Def.'s Mem. Supp. 9. As support, he cites to Arbitrator and former NFL Commissioner Tagliabue in the Bounty-Gate case for the following observation:

In December 2010, the NFL fined Brett Favre $50,000 -but did not suspend him - for obstruction of a League sexual harassment investigation. Although not entirely comparable to the present matter, this illustrates the NFL's practice of fining, not suspending a player, for serious violations of this type.

While Brady was successful in his appeal of the four game suspension, The Patriots organization was sanctioned under the Competitive Integrity Agreement for violation of the playing rules related to ball tampering and failure to cooperate in the subsequent investigation. Patriots owner Robert Kraft paid the $1 million fine and did not appeal that sanction.

Let’s now watch the shortened version of the hearing, which will be followed by argument and ruling.

Judge: To accommodate Mr. Brady’s busy seasonal schedule, I will allow his testimony to be taken out of order, even though the burden of proof is likely on the NFL to show intentional destruction of evidence. Counsel?

Brady Attorney: Thank you so much, Your honor, for this accommodation. I call my client Mr. Tom Brady, the future Hall of Famer Quarterback for the World Champion New England Patriots, a team name that was chosen deliberately to demonstrate the team’s respect for the law and order of these here United States of America. We know what sore loser teams and the unwashed or misinformed public say. But all members of the Patriot organization are known for their patriotism and honesty, especially Mr. Brady.

8

NFL Attorney: Objection Your Honor! Assumes facts not in evidence, argumentative, irrelevant, unnecessary and frankly cockamamie!

Judge: enough from both counsel! Mr. Brady, please raise your right hand. [Judge delivers the oath.]

Tom Brady: You betcha, Your Honor. The truth above all. (Stands and salutes)

Brady Attorney: Mr. Brady, did you own a cell phone in November 2014?

Tom Brady: Yes, I did. It was a nice little Samsung phone that I got free because Giselle (blows kiss to Giselle) got a coupon for it. But it cut out now and again and dropped calls. I never told anyone about that because I didn’t want to rain on Giselle’s parade for getting that phone for me. I never really liked it. Sorry, sweetie! [makes sign language sign for crying]

NFL Attorney: Objection. Non responsive

Judge: Well, actually it was super responsive. Mr. Brady, please limit your answers to the questions.

Tom Brady: Oh sorry, your judgeship. I just want the truth and the whole truth to come out.

Brady Attorney: Did there come a time when the phone got damaged?

Tom Brady: Hhhmm, let me think. I got a hard hit in the last game and my mind is a little dazed. Yes, now that you mention it, it got smashed. I’m hazy on the details though.

Brady Attorney: Do you recall when that was?

Tom Brady: some time ago.

Brady Attorney: can you be more specific?

Tom Brady: Well, let me think. Giselle’s birthday (blows kiss to Giselle) was in February and I had it then. That’s February this year. We had a big party at her favorite little club and invited all the girls from the Angel collection. It was fabulous. I love those wings! Anyway, I know I had it that night. So it probably got damaged the end of February or the first of March.

Brady Attorney: Can you tell us any details about it got damaged?

Tom Brady: Okay, give me a minute. [wait] Okay, it’s coming back. Craziest thing, you know. I was going to do some “honey dos” from my honey (waves at Giselle) around the house, put up a new pic of Giselle in her purple bra and panties. So I went into the garage to find a hammer. There were several to select from. My phone was on the top of the cabinet. I found a hammer I thought would work and was testing it by pretending to throw it across the goal line. The darn thing slipped out of my hands and landed on the cell phone, which got smashed.

9

Brady Attorney: did the phone’s damage have anything to do with hiding evidence from the NFL.

Tom Brady: Are you serious? That would be against the law, right? I mean, that wouldn’t be right and I always do the right thing.

Brady Attorney: No further questions.

Judge: Counsel, your witness

NFL Attorney: So Mr. Brady, you are telling this court that you were testing the hammer by pretending to throw it across the goal line and it fell on your phone?

Tom Brady: Yep totally true story. Look when you spend as much time as I do throwing balls, you tend to want to throw everything. Just ask Giselle. I threw the baby once when I was trying out some new throw positions and forgot I had the baby. Amazing how a baby can feel like a football. Good thing Giselle was there and caught her. Thanks, sweetheart (blows kiss).

NFL Attorney: Why haven’t we ever heard this story before?

Tom Brady: Well, no one ever really wanted to hear the details. People heard “hammer” and assumed I deliberately smashed it. But it was a total accident.

NFL Attorney: Isn’t it true that you smashed the phone right before you were ordered to turn it over?

Tom Brady: No way, Jose! Or should I say Josette. As I said before my Samsung phone was on the fritz anyway and then the hammer thing totally trashed it. So I replaced it with a new iPhone 6!

NFL Attorney: Why didn’t you give the phone over when the NFL requested back in February 2015?

Tom Brady: Well, there were a lot of texts on there between me and Giselle that were private, personal if you get my meaning. We spend a lot of time honing our talents if you get my drift. The last thing I wanted is to give those wolves at some tabloid fodder for their rags. My Giselle is my secret weapon, she’s what gives me strength and I won’t have her laughed at by common trash. (Blows kiss to Giselle). Not only that, but I understood from my attorneys that my phone wasn’t necessary.

Narrator: That concludes the testimony. After a brief recess, we’ll reconvene for argument.

10

Bailiff (strikes gavel): COURT IS AGAIN IN SESSION, PLEASE RISE.

The parties and attorneys all stand and Judge Berman takes the bench.

Judge; Please be seated. The court is ready to proceed on the matter of NFL v. Brady. NFL counsel, please proceed with argument. I would appreciate it if you address both the foundation of any claim of spoliation and the analysis of any proposed sanction.

See attached oral argument summations.

See attached judicial ruling.

1

SPOILIATE GATE

Court’s Ruling Following Oral Argument

The Court is first going to take an overview of the spoliation question in

broader strokes, and then we will focus in specifically on the Brady matter.

It is an important point of departure to recall that in Washington State and

in many other states there is no independent tort of spoliation. As there is no

tortious conduct, damages, as a remedy, are not available.

In the context of making requests in discovery that seek information that

has been destroyed, a successful claim for spoliation can result in the Court

instructing the trier of fact about a permissible negative inference, specifically an

inference that can be made that had the information been provided, it would

have been negative to the position of the party who caused the evidence to be

destroyed. That's the basic rule of spoliation, and the language used in this

instruction is important.

Most Washington cases demonstrate a preference for instructing the jury

that spoliation of evidence creates a permissive negative inference. This

permissive negative inference instruction is used as opposed to an arguably

stronger rebuttal presumption language, and this is discussed in Wright vs.

Safeway Stores Incorporated.

A permissive negative inference sets a lower threshold for the jury to

ignore or minimize the negative inference during deliberations and then does a

rebuttal presumption instruction to the jury stating that the spoliated evidence

would be adverse. The jury is free to moderate or even ignore the permissible

negative inference; whereas, a rebuttable presumption, if not effectively

2

rebutted, remains as an evidentiary fact. As we will discuss in practice, both of

these instructions present serious challenges to the party found to have

spoliated evidence and, therefore, must be used with care.

While the suggestion of an allowable negative inference arising from

destroyed evidence might in pure legal terms sound somewhat benign, the

practical effect is much different. The federal courts have observed, as in this

quote from Zippo-loke vs. UBS Wardlow, LLC, that: "When a jury is instructed

that it may infer that the party who destroyed intentionally relevant evidence did

so out of a realization that the evidence was unfavorable, the party suffering the

instruction will be hard pressed to prevail on the merits." More simply stated,

the trier of fact will punish those who they believe are hiding the deflated ball

from them, and that conduct will not endear the spoliator with the Courts either.

This type of spoliation instruction may well shift the jurors' attention from

the merits of the case to the conduct of the parties during or in anticipation of

litigation. That's why the spoliation instruction now generally is reserved in

state court for circumstances amounting to intentional bad faith conduct. This

was also the rationale behind the proportionality language and the comments to

Federal Rule of Civil Procedure 37(e) in the 2015 amendments and as the

rationale behind state law which is much to the same effect.

In fact, even prior to the adoption of the current FRCP 37(e), federal

case law analyzed the spoliation question in the context of a discovery violation,

to be remedied by appropriate sanctions. Now with the most recent change in

FRCP 37(e), the entire analysis in federal court is much more objective, with no

consideration of bad faith, good faith or faithlessness.

The rule states that if CD electronic stored information is lost that should

3

have been preserved in the anticipation or conduct of litigation, (2), because of

a failure to take reasonable steps, and, (3), the loss cannot be remedied by

additional discovery designed to replace or restore the ESI, and, after that three

part test is established, the Court finds that this caused prejudice to the

impacted party, the Court may therefore impose a remedy. The remedy must

be no greater than necessary to cure the prejudice. However, there is no

element in the rule requiring bad faith to be shown.

There are multiple and sometimes overlapping considerations for the Court

in contemplating the question of evidentiary spoliation. First, the Court has to

analyze whether the destruction of evidence gave the offending party an

investigatory advantage. In this regard, the Court considers whether the

information in question might otherwise be obtained. The Court must evaluate

whether the spoliation brought the investigation to a dead standstill or did it

merely slow the investigation down, or make it more costly and, if so, to what

degree. Additionally, the degree of relevance and importance of the

information made unavailable by the spoliation is a consideration. Did the

spoliated evidence relate to a central issue in the case, or was it more related to

a collateral question?

The degree of bad faith of the culpable party is another important

consideration in state court. Was it truly a calculated destruction with the direct

intent of removing important evidence from the reach of the other party?

There are too many variables and nuances to articulate a hard-and-fast bad

faith rule in the spoliation context. And, in the end, the Court may just

evaluate how bad the circumstances related to the destruction of evidence

smells.

4

The results of the spoliation analysis falls, in the end, within the Trial

Court's broad discretion to make spoliation findings and fashion a remedy. This

discretionary process is discussed in Homeworks Construction, Incorporated, vs.

Wells.

Before any of this analysis occurs, the Court must determine the threshold

question of whether the allegedly offending party had a duty to preserve the

evidence. The existence of this duty is a question of law for the Court at the

outset. In Washington State, there is no general duty to preserve evidence.

And you will find that discussed in Homeworks also.

Washington State law differs somewhat from Federal Law as regards to

the existence of a preservation duty. Under the federal rule, a duty to preserve

is triggered when a party knew or in the exercise of reasonable care should

know that the evidence might be relevant to the pending of future litigation.

That's a different analysis than whether the evidence was spoliated in bad faith.

And this principle is explained E.E.O.C. vs. Fry's Electronics.

An important factor in both state law and federal law is whether or not an

informal request was made for the evidence before it was destroyed. In state

law, such a request bears on the issue of bad faith. In federal law, it bears on

the question of notice. We will soon see how this plays out for Mr. Brady.

As another general point, do keep in mind that in state law negligent

failure to preserve evidence will not support a spoliation argument, and that's

Henderson vs. Tyrell. It's in your materials.

While the spoliation remedy is often cast in evidentiary terms in the sense

of whether a permissible negligent inference or a rebuttal presumption

instruction should be given to the jury, discovery sanctions under CR 37 are

5

available and in state court most often used.

To illustrate, a residential construction defect case where the general

contractor appellant allegedly destroyed some faulty windows that were

removed from a structure and replaced them was then faced with a spoliation

motion by the other party, the adverse party, looking to apportion damages

between the parties. The Trial Court excluded the evidence, and the testimony,

related to the lost window at the time of the trial. This exclusion was cast as a

CR 37 discovery action remedy.

The Court of Appeals has ruled Washington Trial Courts may treat

spoliation as a civil discovery violation and sanction a party under CR 37 or

under its inherent power to control the litigation. And so there is no reason

why the full array of CR 37 sanctions from minor to severe would not be

available to the Trial Court under this rationale.

Again, the principle of proportionality needs to be followed. You can read

more about this in Newhall Jones, Inc., vs. Classic Cedar Construction, 99

Wn.App. 1031. This is an unpublished decision.

So - Mr. Brady. The first step in the spoliation analysis here is whether

Tom Brady had a duty to preserve his cell phone evidence. The analysis is

somewhat different, depending on whether Washington State law or federal law

applies. Under the federal analysis, Mr. Brady was under a duty to preserve

electronically stored evidence when he knew or reasonably should have known

the texts might be relevant to pending or future litigation. Given the daily

barrage, in every village and town, of media coverage in every newspaper, TV,

radio, internet-based media outlet, his knowledge is suitably established.

It's really irrational for Mr. Brady to maintain that he believed Deflategate

6

would just go away and that there was no kind of litigation that would come of

it or that he wouldn't be directly involved in that litigation.

Under the reasonably anticipated litigation standard, Mr. Brady had a duty

to save those e-mails. It's perhaps a closer question under state law, since

there is no general duty to preserve evidence of the texts. The duty arises only

after litigation was filed or at a minimum when Mr. Brady had notice of the

claim.

In this case, the focus is on whether Mr. Brady was on notice of the NFL's

claim that it wanted his text messages in February of 2015 when they first

requested the phone, or was it on March the 6th of 2015, the day of his

interview in the context of the NFL's investigatory process?

Either way it seems the NFL has carried its proof burden to show

knowledge that a claim was being pursued related to Mr. Brady, and, therefore,

a duty to preserve the evidence did attach.

The justification by Mr. Brady that the destruction of the phone on the day

of the interview was merely coincidental is not credible in light of the couple of

months run up to the events of March 6th, 2015.

So we look at the degree to which the evidence destroyed gave the

offending party an investigatory advantage. The text data was not recoverable

in this case from other sources, at least not entirely. Only Mr. Brady, Mr.

Jastremski and Mr. McNally were parties to the texts. And only Mr. Brady would

have all of the pertinent texts, as it seems from the record that Mr. Jastremski

and Mr. McNally's communications about ball pressure were,

perhaps wisely, oral.

It seems that not only the best evidence in the form of text writings, but

7

really the only nontestimonial evidence of why those balls came to be deflated is

beyond the reach of investigators because of the destruction. This materiality

impedes the NFL's investigation of who said or did what and when, so this

element of spoliation analysis mitigates against Mr. Brady.

The degree of relevance and importance of the information rendered

unavailable is also an element of the spoliation test. There is a little crossover

with the investigatory advantage analysis. But whether or not and the degree

to which nontestimonial evidence would show that Mr. Brady was or was not

involved in the nefarious planning leading to Deflategate is certainly relevant.

There is inevitably some crossover, but by any objective assessment of the

circumstances regarding these texts, they're highly relevant in demonstrating

what Mr. Brady knew, when he knew it, and just what the details of his

involvement was. This goes beyond, "It would be nice to know," and takes us

into the realm of "very significant to know" to accurately assess Mr. Brady's

involvement. And that leads us to the question of bad faith or how much of

Mr. Brady's behavior in destroying the texts was purposeful in an effort to

thwart full exposure of the facts.

As we noted earlier, Mr. Brady knew full well the content of the texts and

the NFL needed them as a part of the administrative adjudication of how the

balls came to become underinflated after they had been tested pregame by the

officials. Mr. Brady's comments to the effect that, quote, "My lawyer said it

would be okay," end quote, even if it was true, doesn't change his obligation to

preserve this valuable electronic stored data.

His explanation that destroying the data the day he was ordered to

produce it because he got a new iPhone 6 and that was his normal practice

8

when changing phones strikes the Court as an explanation that was made up

and contrived. While there are not rigidly defined degrees of bad faith, this

scenario certainly smells of bad faith and leads the Court to conclude that

spoliation occurred.

Mr. Brady also raises a privacy issue related to the many text messages

that may well contain particularly sensitive or embarrassing information. But,

as with much discovery, the relevant matters can be produced with a certificate

or a declaration under perjury that the disclosure has been fully made, and the

rest of the material can be redacted. If necessary, an in camera proceeding

can be held to determine any question of relevancy of some of the texts, and

that would certainly add to the judicial amusement in the case.

Brady says that the NFL already fined the Patriots a million dollars and

that's penalty enough. While that might be satisfactory to the NFL's

competition committee, the one million dollar fine is the NFL's penalty assessed

against the Patriots for cheating - again. It does not address the legal sanction

that should follow against Mr. Brady for evidence spoliation.

There is nothing to be done about the Patriots AFC championship game

outcome, and the 45 to 7 beat down that they put on the Colts. That was not

likely occasioned by underinflated balls. And the Seahawks still lost the Super

Bowl, Deflategate or not, spoliation or not. So that leaves the Court with the

option of sanctions for discovery misconduct.

The NFL requests $250,000. This is some fractional amount of one game

check for Mr. Brady. While it may not be entirely sufficient to sanction Mr.

Brady and deter other highly paid persons from similar conduct, it seems about

right in this case, and that will be the order of the Court. Thank you all for

9

coming.

Washington Published Spoliation Cases

Pier 67, Inc. v. King County, 89 Wn.2d 379, 385-86, 573 P.2d 2 (1977)

Penalty for spoliation is “the rebuttable presumption that the evidence was unfavorable”.

Defendant destroyed valuation records after lawsuit started challenging its valuations, reversed

trial court ruling in favor of defendant, imposed presumption against defendant and found in

favor of plaintiff.

Hampson v. Ramer, 47 Wn. App. 806, 737 P.2d 298 (Div. I 1987)

Plaintiff sued for injuries related to a car accident. During discovery, a doctor revealed the

plaintiff suffered from carpal tunnel syndrome of the wrist, and would require additional surgery.

Defense counsel requested to be informed of further treatment before the treatment was given,

but the plaintiff underwent corrective surgery without either counsel's knowledge. Even though

the plaintiff argued he did not know of defense counsel's request, Division I affirmed trial court

did not abuse discretion in holding plaintiff responsible for the violation, which precluded

defense discovery of the pre-surgical condition.

Henderson v. Tyrrell, 80 Wn. App. 592, 910 P.2d 522 (Div III 1996)

Plaintiff destroyed vehicle over two years after request by Defense counsel to preserve, key issue

in case is who was driving car, plaintiff or defendant. Court extensively analyzed spoliation,

settling on two Factors – the importance of the evidence and the culpability of the destroying

party in evaluating whether any sanction is appropriate. Affirmed Plaintiff not sanctioned

because the vehicle not important evidence (there were photos), neither party had an expert

examine vehicle before destruction, and there was no prejudice to defendant. Defendants waited

over two years to examine the evidence thus the ‘real culprit here was the passage of time.’ The

questionable evidentiary value of the car coupled with the plaintiff's reasonable explanation for

its destruction led the court to reject the spoliation claim

Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 972 P.2d 475 (Div. II 1999) Defendant destroyed treadmill involved in fall before suit was filed. Plaintiff injured on treadmill

in May 1993. Defendant continued to use the treadmill after the incident. Over four years later in

1997, Plaintiff asked to inspect the treadmill which was no longer available. Plaintiff claimed

spoliation and asked for a favorable evidentiary presumption. Division II affirmed the trial

court’s denial of spoliation sanctions, finding that Plaintiff had ample opportunity to examine or

request preservation, but never did so and that there was no “bad faith” or intentional destruction.

Homeworks Const., Inc. v. Wells, 133 Wn. App. 892, 138 P.3d 654 (Div II 2006) Homeowner's insurer paid the claim and then commenced a subrogation action against the

contractor for construction defects relating to the EFIS stucco siding involved.. In the meantime,

the homeowner had the defects repaired without the insurer's knowledge. The court held that

sanctions should not have been imposed against the insurer for spoliation because the insurer had

no control over the property in question and had no duty to preserve evidence of the alleged

defect.

Ripley v. Lanzer, 152 Wn. App. 296, 215 P.3d 1020 (Div I 2009) Affirming trial court’s decision that defendant had not spoliated evidence by destroying an

admittedly defective scalpel handle before suit filed because handle admittedly defective, not

disputed issue. Discarded when no lawsuit filed and no request to retain had been made. No bad

faith or other reason to show that this act was intended to destroy important evidence.

Tavai v. Walmart Stores, Inc., 176 Wn. App. 122, 307 P.3d 811 (Div II 2013)

Defendant committed spoliation by destroying store video before suit filed. Fall in 2008, request

in 2010 for video depicting Plaintiff. No video footage preserved and Defendant represented that

there was nothing relevant to preserve. The trial court ruled that a spoliation inference was

unjustified and Div II affirmed. Applying the two-part Henderson analysis here, a video

recording of the area of fall would have likely been important because it could have shown how

the water got on the floor and how long it had been there. However, surveillance video did not

cover the area where Plaintiff fell. Thus, the importance of any video footage was small.

Cook v. Tarbert Logging (Div III October 2015)

The trial court erred in concluding that Washington has recognized a general duty to preserve

evidence; it has not. For that reason, and because only intentional spoliation logically supports an

adverse inference, the trial court abused its discretion when it ruled in limine that it would admit

evidence and allow defense argument in support of such an inference. The trial court also abused

its discretion in ruling in limine that the defense could present evidence to support argument of

what was tantamount to a missing witness inference from the Cooks' failure to call their expert

witness on speed to testify at trial. Reversed and remanded.

Ninth Circuit Key Spoliation Cases

Unigard Sec’y Ins. Co., v. Lakewood Eng’g & Mf’g Corp., 982 F.2d 363, 371 (9th Cir. 1992)

In the context of spoliation of evidence, the Ninth Circuit has “confirmed the power of the

district court to sanction under its inherent powers not only for bad faith, but also for willfulness

or fault by the offending party.

United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002)

A party’s failure to preserve evidence “qualifies as willful spoliation if the party has some notice

that the documents were potentially relevant to the litigation before they were destroyed.”

Leon v. IDX Systems Corp., 464 F.3d 951 (9th 2006). Ninth Circuit upheld the trial court's

dismissal of an employment case as a sanction for Plaintiff's intentional, bad faith destruction of

computer files.

Western District of Washington’s Model Agreement Re Discovery of ESI:

http://www.wawd.uscourts.gov/sites/wawd/files/ModelESIAgreement.pdf

FRCP 37(e) Revisions – Effective December 1, 2015

Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or

conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it

cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order

measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the

information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable

to the party; or

(C) dismiss the action or enter a default judgment.

NFL ATTORNEY

ORAL ARGUMENT SUMMATION

As this court noted in its order, by the time of Brady’s initial appeal the Commissioner

found:

On or about March 6, 2015 - the very day that that he was interviewed by

Mr. Wells and his investigative team- Mr. Brady instructed his assistant to

destroy the cellphone that he had been using since early November 2014, a

period that included the AFC Championship Game and the initial weeks of

the subsequent investigation. [Also] the conduct at issue here - specifically

the willful destruction of potentially relevant evidence goes well beyond Mr.

Brady's failure to respond to or fully cooperate with the investigation.

While the NFL disagrees with the Court’s decision that the four-game suspension was

not appropriate punishment under the Players’ Agreement, the NFL is now asking this

court to impose an appropriate sanction against Mr. Brady for his willful destruction of

evidence, what we commonly refer to as spoliation.

The NFL is asking that Mr. Brady be sanctioned by a rebuttable presumption that the

evidence destoyed would have been adverse to him, or a fine of $250,000 as a penalty

for deliberately destroying evidence he knew – or reasonably should have known – was

relevant to pending litigation. These severe sanctions are appropriate because Brady’s

destruction of his cell phone was intentional, and done knowing he was the subject of

an investigation and that his texts were relevant to that investigation. Moreover, the

information was not available from his carrier or from others he texted, because they

had deleted the information long before an investigation. This sanction is supported by

Washington law and FRCp 37(e), which addresses destruction of ESI.

Absent some significant penalty, Brady will benefit from his wrongful conduct conduct.,

Washington/Mass/NY recognize no tort action for spoliation and a lesser fine will not be

meaningful to someone who earns $500K per game.

While court’s often look to Rule 37 as the source of authority to address spoliation after

a lawsuit is filed, this spoliation occurred before this lawsuit began, but this court has

the inherent power to sanction pre-filing spoliation.

Under Washington law, Pier 67 was the first case back in 1977 to adopt the

“rebuttable presumption” as a sanction against a party who destroys evidence, which is

essentially a presumption that the destroyed evidence would have been unfavorable to

that party.

The next case to more fully develop the framework for addressing spoliation claims was

Henderson v Tyrell in 1996 (Div 3) Henderson focused on what sort of “satisfactory

explanation” is sufficient to avoid the rebuttable presumption sanction. Two factors:

(1) Potential importance or relevance of the missing evidence

(2) Culpability or fault of the responsible party.

After weighing these two general factors, the trial court uses its discretion to craft an

appropriate sanction

(1) Potential importance or relevance of the missing evidence

Depends on the particular circumstances of the case.

Has the loss or destruction of the evidence has resulted in an investigative

advantage for one party over another?

Was the adverse party afforded an adequate opportunity to examine the

evidence?

(2) Culpability or Fault of the Responsible Party.

Was there a duty to preserve the evidence?

Did the party know (or should have known) litigation likely?

Even where an action has not been commenced and there is only a potential for

litigation, a litigant is under a duty to preserve evidence which it knows or reasonably

should know is relevant to the action.

Sanctions for spoliation are appropriate only if the party had notice that the evidence is

potentially relevant to a claim. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006).

The duty to preserve evidence is triggered when a party knows or reasonably should

know that the evidence may be relevant to pending or future litigation.” EEOC v. Fry’s

Electronics, 874 F. Supp. 1042, 1044 (W.D. Wash. 2012).

In the Homeworks, decision in 2013(citing Henderson, 80 Wn. App. at 605) Division II

noted that “ [S]poliation encompasses a broad range of acts beyond those that are

purely intentional or done in bad faith.” (also held that a party could not be responsible

for spoliation when it did not have control of the evidence in question).

Spectrum of culpability: Intentional, Bad faith, Conscious disregard, Grossly negligent,

Negligent. This is the most severe – intentional bad faith destruction. Thus, the

sanction needs to be similarly severe.

The choice of sanction guided by the “concept of proportionality” between the offense

and the sanction.

Balance several factors including: the culpability of the spoliating party; the prejudice to

the non-offending party; the degree of interference with the judicial process; whether

lesser sanctions will remedy the harm and deter future spoliation; whether evidence has

been irretrievably lost; whether there was an obligation to preserve the evidence; the

practical relevance or importance of the evidence; the potential for abuse; and whether

sanctions will unfairly punish a party for attorney misconduct

The December 2015 amendments to FRCP 37(e) impose uniform standards regarding

spoliation remedies when ESI is not properly preserved.

Rule 37(e) applies when three criteria are met:

1. ESI is lost that “should have been preserved in the anticipation or conduct of

litigation,”

2. Because of a failure to take “reasonable steps,” and

3. The loss cannot be remedied by “additional discovery” designed to replace or

restore the ESI.

NFL has met this three part test, so if the court finds that the NFL is prejudiced by

Brady’s actions, the court can impose a remedy “no greater than necessary to cure the

prejudice.” However, in situations like this case, where there is an intent to destroy ESI,

more serious remedies may apply, including adverse inference, a jury instruction on

spoliation, or dismissal.

Adverse inference appropriate, no other remedy has teeth. Alternatively, if the court

decides not to impose the adverse inference, the $250K fine would be appropriate and

no greater than necessary to cure the prejudice. The NFL has spent far more than this

on legal fees relating to the Spoliation issue and attempts to retrieve the evidence

elsewhere were costly, and ultimately unsuccessful.

TOM BRADY ATTORNEY

ORAL ARGUMENT SUMMATION

This issue has been resolved

o Patriots have already been sanctioned

$1M sanctions have been paid and not been appealed

If NFL is looking to hit someone for this – they’ve already accomplished that with

this sanction

Timing of these events is the most important consideration: As NFL has to admit,

the disposal of the phones occurred prior to any lawsuit being filed.

o Each and every case cited by counsel relates to a “party” being cited –

inherently that presumes a lawsuit was filed for the “party” to do some bad act.

o Federal cases have examined the issue with regard to destruction of emails. In Phillips

Electronics North America Crop v. BC Technical, the defendant employees deleted

thousands of files and folders from five different laptop computers – some being

overwritten to be totally “wiped” for permanent deletion.

o While the court issued sanction – that case is different – timing. In Philips, the deletions

occurred a day or two before sent to the forensic examination by plaintiff’s expert.

o Burden is on NFL to show that the phone was destroyed after the duty to

preserve arose. This is the Leagues burden. Mr. Brady has no obligation to

justify the disposal of any of his personal devices if he had no duty to

preserve the device in the first place.

--Federal Rule of civil Procedure in place at time did not impose the

affirmative duty that the new rule requires.

Note: Different considerations if in Federal court or in State court (even though

both rules have two factors). Federal rule – as outlined in Phillips: (1) knew or

reasonably should of known of duty and (2) the adverse party’s

prejudice by the destruction --

Colorado case re: sanctions not warranted when other evidence sufficient

to reduce prejudice created by destruction

Note: federal cases have not incorporated the new FRCP requirements for

preservation of evidence stored in electronic form.

Brady did not know of a duty because NFL informed him his phone was

not needed.

NFL’s prejudice is minor, if any.

COMPARE WASHINGTON STATE LAW:

(1) Potential importance or relevance of the missing evidence

This is not the car – Like in the Washington

Henderson case

This isn’t a video showing someone with the needle

deflating the balls

The NFL is just assuming there are text messages

corroborating their story

No witness has said the text messages were sent

admitting the deflated balls were at Brady’s direction

NFL can recover from somewhere else –recipients cell

phones, subpoenas to the phone companies

(2) Culpability or fault of the adverse party

Trying to charge him with conduct outside of his control –

they aren’t recoverable from anyone’s phone – not Brady’s

fault

- Go to the Recipients

-

NFL had the opportunity to examine – through counsel

informed Brady wouldn’t be needing his phone

Brady testified the phone was destroyed only after he was

assured his phone would not be requested

Brady testified his destroyed phone was an accident

And while there is an inherent authority of the court for discovery

sanctions – but again, presumes there was a case for discovery to

occur. Leon v IDX Systems Corp., 464 F.3d 951 (9th Cir. 2006) (employee

admitted to destruction, wanted to protect his privacy)

Compare: In Leon – party seeking sanction was prejudiced because

destroyed files central to his employment case. No way of recreating the

contents of the files.

o MOREOVER – THIS WAS BRADY’S ROUTINE PRACTICE

OLD FEDERAL RULE: “Absent exceptional circumstances, the court may not

impose sanctions under these rules on a party for failing to provide electronically

stored information as lost as part of a routine practice” – FRCP 37(e)

We know from Brady’s testimony that this would be destruction within the

routine practice exception of the rule.

He was informed by his attorneys that the NFL did not need his cell phone

He was having problems with the phone – and he destroyed it.

Worried about his celebrity and the publication of his private text

messages – all know these are legitimate concerns

What does this show?

Under Washington: shows that he wasn’t culpable.

Under Federal law, he was within the exception.

IF SANCTION – should not be negative presumption or adverse inference the TYPE

OF SANCTION SHOULD BE LESSER AND MATCH THE Type of evidence that is

missing:

o Witnesses (sending and receiving end of text messages) are available – may testify, be

cross examined etc.

o Some text messages recovered

o Not appropriate for an adverse inference. This is not the “smoking gun” – not the

footage of a locker room manager handling the game balls

o

LESSER SANCTION THAN INFERENCE OR PRESUMPTION

o Type of evidence / routine practice / absence of pending litigation show all weigh

against sanctions. IF any sanction is issued, should be narrow in scope and limited to

the costs incurred attempting to recover the text messages or recreate the evidence.

o Costs for deposing / subpoenaing the recipients of the texts

o Costs of experts’ attempts to recover messages from other sources

The ROBERT J. BRYAN AMERICAN INN OF COURT

CHAPTER XXV OCTOBER PUPILAGE GROUP

PROUDLY PRESENTS

“SPOLIATEGATE”

October 19, 2015 US District Court for the Western District of Washington

Tacoma, Washington

CAST OF CHARACTERS The Judge The Honorable Stan Rumbaugh Pierce County Superior Court Narrator #1: The Honorable Karena Kirkendoll Pierce County Superior Court Narrator #2: Mark Nelson – Attorney at Law JJ Jastremski Nikki Gasper – Attorney at Law Jimmy McNally: Mark Arend – Attorney at Law “The Deflator” Walt Anderson: Paula Olson – Attorney at Law Francis Fumble Rachel Dolven Law Clerk – US District Court WDWA Tom Brady Barry Wallis – Attorney at Law Mr. Brady’s Lawyer Morgan Edrington – Attorney at Law NFL’s Lawyer Stephanie Bloomfield – Attorney at Law Bailiff Paula Olson – Attorney at Law Giselle Bundchen aka “Grizzelle BeardChin” James Beck – Attorney at Law

PART I In and around Gillette Stadium

SCENE #1

Phone call between JJ Jastremski and Jimmy McNally before the AFC Championship Game against the Indianapolis Colts.

SCENE #2

The next meeting between JJ Jastremski and Jimmy McNally.

SCENE #3 Phone call between Tom Brady and JJ Jastremski the day

before the AFC Championship Game.

SCENE #4 NFL Officials’ locker room – game day, just before kick-off.

SCENE #5

Just days after the big game – Tom Brady and JJ Jastremski discuss what “story” to “spin” about the footballs that were

discovered to be underinflated.

SCENE #6 Tom Brady gets advice from his college friend, attorney

Francis Fumble.

PART II Courtroom, US District Court WDWA at Tacoma

Court proceedings regarding “SpoliateGate.”

The ROBERT J. BRYAN AMERICAN INN OF COURT

CHAPTER XXV

THANK YOU FOR JOINING US THIS EVENING! The American Inns of Court (AIC) are designed to improve the skills, professionalism, and ethics of the Bench and Bar. The Honorable Robert J. Bryan American Inn of Court (“Bryan AIC”) is a long-standing local chapter of the American Inns of Court, America’s oldest, largest, and fastest growing legal mentoring organization. For over 25 years the Bryan AIC has provided judges, lawyers, law students, and law professors a unique opportunity to participate actively in developing a deeper understanding and sense of professionalism, in achieving higher levels of excellence, and in furthering the practice of law with dignity and integrity. The Bryan AIC meets monthly, one Monday evening per month, September through May, both to "break bread" and to hold programs and discussions on matters of ethics, skills and professionalism, and helps lawyers to become more effective advocates and counselors with a keener ethical awareness. Our Members learn side-by-side with some of the most experienced judges and attorneys throughout our communities.