First it was under-inflated footballs and now it is a destroyed cell phone that has put New England Patriots’ quarterback Tom Brady in a lot of hot water. Brady is currently facing a four-game suspension, not just because of under-inflated footballs, but because he did not keep a cell phone which may have contained text messages that were relating to the NFL’s investigation. Football’s “Deflate Gate” provides an important reminder of the importance of document production and document retention.
Under the Rules of Civil Procedure all parties in a civil lawsuit have a duty to disclose and produce evidence that is relevant to any claims or defenses, or which may lead to the discovery of admissible evidence. Discovery is not meant to be a game of hiding evidence and sanctions can be imposed on parties who do not timely disclose discoverable evidence. Even harsher penalties will be imposed if a party destroys evidence or fails to preserve evidence that is relevant to a dispute.
The preservation of evidence is an important factor for any party that is involved in civil litigation. Today a large percentage of discoverable evidence in civil lawsuits is electronically-stored information (“ESI”). E-mails, text messages, and documents stored electronically are all forms of ESI that may be relevant and discoverable in a civil lawsuit. If care is not taken with this ESI it can easily be erased or otherwise destroyed.
The destruction of evidence is called spoliation and courts are quick to sanction a party if it discovers that there has been spoliation of discoverable evidence. Discovery sanctions can be game-changers for attorneys and parties in a lawsuit. A court may order that certain facts be taken as established if evidence has not been preserved. The court may also prohibit the party that possessed the missing evidence from supporting or opposing certain claims or defenses, or it may even dismiss a claim or render a default judgment against the offending party.
In order to avoid spoliation sanctions, and in order to preserve ESI that may be relevant to a claim or defense in a civil lawsuit, a litigation “hold” letter is typically sent to parties and/or records custodians who may possess ESI. A litigation hold is a written directive advising custodians of certain documents and ESI to preserve potentially relevant evidence in anticipate of future litigation. The receipt of a litigation hold letter triggers a duty to the recipient to preserve relevant evidence and to suspend any routine document retention/destruction policies, preserving the evidence for future litigation.
In the case of Tom Brady, his problems are not so much about the amount of air in his footballs as it is about the fact that he destroyed a cell phone that may have contained relevant evidence, such as text messages relating to the underlying football inflation issue. If you find yourself as a party to litigation or potential litigation it is critical that you consult with your attorney regarding evidence that may need to be produced in the litigation and to consider whether you can safely continue with any routine document destruction.
For more information on this article or the other articles in this series, be sure to check the Trial Lawyer on Your Side blog next week or contact the Goosmann Law Firm at [email protected] or (712) 226-4000.