The New England Patriots may play the first quarter of the 2015-16 season without quarterback Tom Brady, as he was suspended for failing to cooperate with an investigation related to footballs deflated below league standards being used in the 2014-15 season AFC championship game with the Indianapolis Colts. A key element in this decision was the finding that Brady,though not required by the NFL collective bargaining agreement to provide his personal cellphone to investigators, not only refused the request to providehis phone for imaging, but instead instructed an assistant to destroy the phone the same day he was interviewed by an investigator.

With the destruction of the phone, the text messages received or sent by Brady for the time period at issue, the four months afterthe AFC game, were unavailable for evidence in the investigation. NFL Commissioner Roger Goodell resolved the scandal with a suspension penalty, but what would have happened had Deflategate been litigated in the courts? A recent opinion disposing of a discovery dispute in Brady v. Grendene USA Inc. provides an interesting backdrop for discussion.

Deflategate can be seen as a discovery dispute between the NFL and Tom Brady, Jim “the Deflator” McNally and John Jastremski (the latter two being football-handling engineers). Reports of the scandal, and allocationof blame, focused on communications between the three and whether anyone wasasked to take action with respect to the footballs used in the game. The NFL’sreport resolved Deflategate by relying on SMS messages found on Jastremski’s and McNally’sphones. But if Deflategate had played out in U.S. federal courts, governed bythe broad discovery allowances under the Federal Rules of Civil Procedure,Brady’s phone would also have been discoverable as potential evidence inresolving the

issue.

The plaintiffs’ strategy seems to have been “without documentation,you can’t prove it was me.” Similarly, in Deflategate, the NFL seems to rely upon the converse: Without exculpatory evidence from Brady’s phone, Brady can’t disprove the conclusion that he wasn’t involved or knowledgeable about the deflated balls.

For the plaintiffs in Brady v. Grendene, this tacticprobably would have ended terribly but for the lack of the record presented bythe defendant. The court appeared open to ordering either a forensicexamination of one of the plaintiffs’ computers to find the missingcommunications and/or an adverse inference, had it not been for two issues.First, while the court doubted that only three relevant emails existed, thedefendants had not shown the plaintiffs that the missing emails were centrallyrelevant to the case — the court stated in a footnote that “[t]o date, thedefendants have only articulated a remote need for the emails … [i]f … thedefendants are able to demonstrate that the missing emails are centrallyrelevant to their case, this Court’s analysis may change.”

More dispositive to the court, however, was the fact that amotion for summary judgment that might dispose of the case entirely was pending, and granting the motion would render any discovery dispute moot. The court conspicuously left open the opportunity for the defendants to try again to compel forensic imaging of computers or be awarded an adverse inference instruction after a briefing on the central relevance of the destroyed emails.

Had the NFL’s request for Brady’s cellphone been part of acivil litigation rather than an NFL investigation, Brady would have had a dutyto preserve the phone and its contents once he had knowledge surrounding the improper PSI levels of the footballs and allegations that the deflation was discussed in subsequent text messages in which he was a participant. Further, anycommunications about the allegations going forward would also be relevant and subject to a preservation and production obligation. As litigants in the federal courts, they would not be able to claim privacy as a reason for nonproduction. Failure to preserve the text messages, and the instruction to an assistant to affirmatively destroy the phone, could have resulted in sanctions,including an adverse inference, monetary sanctions and quite possibly the striking of Brady’s pleadings as a defendant.