It is almost time for the regular season kickoff of the NFL, the recent nullification of Tom Brady’s Deflategate suspension by federal judge Richard Berman continues to make headlines. Cincinnati Office Managing Partner Daniel J. Donnellon discusses different types of evidence in relation to the case in his latest “Litigation Lesson” video, which you can watch here (free).

About Deflategate

At times, I feel sorry for the luxurious Watergate Hotel; in modern times, if there is any scandal people simply attach the suffix –gate to it to conjure up notions of wrongdoing and cover-up. The latest “Gate” arises out of the New England Patriots’ romp over the Indianapolis Colts, a 45-7 victory in last year’s AFC championship game.

It turns out that the footballs used by the Patriots were uniformly underinflated to make them easier to squeeze, throw, catch and control. So, “Deflategate” became the moniker of course.

The Patriots organization took their lumps and paid a record fine. After that, the Commissioner suspended quarterback Tom Brady for four games in connection with his role in Deflategate. The purpose of this Litigation Lesson is not to comment on whether the punishment fits the crime, or whether four games, when Ray Rice received two for “Elevatorgate,” is the worthy suspension. But the whole issue involving Tom Brady provides a Litigation Lesson for all of us.

I’ve heard several NFL fans say, “There’s no hard evidence Brady did anything here.” Well, the term “hard evidence” is not something that appears in legal journals. There two types of evidence: direct evidence and circumstantial evidence.

Direct vs. Circumstantial Evidence

Direct evidence is evidence in the form of testimony from a witness who actually saw, heard or touched the subject of questioning. Direct evidence is evidence that, if believed, proves the existence of a fact without the need to rely upon other facts or any inferences drawn from those facts; it’s eyewitness testimony. Circumstantial evidence, often called indirect evidence, involves drawing an inference from the facts asserted that allow one to conclude, by reason and experience, the truth of the fact sought to be proved. If eyewitness testimony, for example, is direct evidence, then circumstantial evidence is facts or a group of facts that would allow someone to draw am inference about the fact to be proven.

We all know that eyewitness testimony is often considered unreliable, as two people can perceive the same event differently. And, circumstantial evidence can often be more persuasive than direct evidence. So, the fact that Tom Brady was convicted solely on circumstantial evidence is really of no moment; what is truly important about the Tom Brady case is the doctrine of spoliation of evidence.

The same day that Tom Brady met with the NFL investigator to discuss his role in the Deflategate, he went out and got rid of his old Android phone and purchased a new iPhone 6. He told his assistant, per his “normal and customary routine,” to destroy the Android phone, and to shred the SIM card.

It turns out that during that meeting with the NFL investigator, Tom Brady was asked by the investigator for his phone so that they could compare those phone messages to messages and circumstantial evidence of other people in the Patriots organization that they had already obtained. Brady’s lawyers came back and said that he no longer has the phone, and the phone carrier cannot provide any of the records. That’s when the doctrine of spoliation of evidence comes in.

Doctrine of Spoliation of Evidence

The doctrine provides that if you have certain evidence in your possession at one time, and the evidence turns out to be lost or destroyed, then the fact finder can infer from the fact that it is gone that you destroyed or lost the evidence because it implicated you.

Now to be fair, Tom “Terrific” Brady claims that he was told by his lawyers that his cell phone would not be necessary to be produced, but according to the investigator, the fact that they asked for it in the meeting and he claimed to not have it on him, and then it later turns out that same day he destroyed the old phone and the SIM card, allowed them to introduce the doctrine of spoliation to say the reason it was destroyed was because it implicated him in the Deflategate scandal.

The takeaway here is simple: spoliation of evidence is a very important doctrine that can have severe consequences. When you receive the litigation hold letter from your attorney or another attorney in litigation, it’s not some lawyer boilerplate that you can simply shirk off.

In the modern era of electronically stored evidence, massive amounts of direct and circumstantial evidence exist on hard drives, cell phones and the like. A litigation hold letter has to be sent to everyone who may have direct or indirect evidence to produce in the case, and those have to preserved and followed, such as securing servers, turning off anything that automatically deletes data, and making sure that backup tapes are available for inspection. Spoliation is not something to be toyed with; deflating footballs… maybe.

Watch “Litigation Lesson: Deflategate”

Click here to view the video.