In the well-known saga commonly referred to as “deflategate,” (NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 [2d Cir. Apr. 25, 2016]) the Second Circuit upheld the arbitrator’s decision to suspend Patriots’ quarterback, Tom Brady. Specifically, Brady, was suspended for four games after it surfaced that he participated in deflating the footballs used in Superbowl XLIX below the regulation pounds per square inch (“PSI”). In reaching that decision, the arbitrator considered several factors, including that Brady was uncooperative with the National Football League’s investigation insofar as he willfully destroyed his cell phone. Perhaps not surprisingly, the arbitrator opined that the cell phone may have housed evidence (in the form of text messages or otherwise) of Brady’s involvement in deflating the footballs. In seeking to have the decision overturned, Brady argued that he had no idea that “destruction of the cell phone would even be at issue in the arbitration proceeding.” Because, however, Brady intentionally destroyed his cell phone, the arbitrator was able to infer that the cell phone did contain evidence which would be unfavorable to Brady.
The Second Circuit upheld the arbitration decision, noting that “any reasonable litigant would understand that the destruction of evidence, revealed just days before the start of arbitration proceedings, would be an important issue.”
The plain and simple message from this case – make sure to educate your clients about the importance of preserving – and refraining from any modification/destruction of – evidence that may be relevant to a litigation. The panoply of sanctions available to the Court when one fails to abide by their preservation obligations is vast.