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Wednesday
Jul152015

Deflategate (Part One): When thumbs run wild

Although Deflategate was a high-profile investigation that generated lots of news (and legal battles) and wasn't a civil case, it's a good opportunity to remind employees that text messages sent through company-provided devices can be discoverable. 

Deflategate arose from allegations that the New England Patriots used deliberately underinflated footballs during their AFC championship game against the Indianapolis Colts on January 18. The investigation into Deflategate by the Paul Weiss law firm found that it was “more probable than not” that Patriots employees were flouting the rules, and also that it was more probable than not that Patriots' quarterback Tom Brady was aware of the deflation.

Several members of the Patriots’ staff turned over their personal and company-owned devices as part of the investigation, and important text evidence was obtained from these devices. Brady, however, refused to turn over his device or any documents or information requested by the investigators. All this was even after the investigators offered to allow Brady’s counsel to screen the production in order to limit it to information responsive to the investigation only.

Brady’s recalcitrance did not sit well with the investigators, and they noted that their inability to review Brady’s documents and communications “was not helpful to the investigation.”

A good deal of the evidence in the Deflategate investigation consisted of text messages between Patriots' equipment staff, including “the deflator” -- a self-nicknamed staff member responsible for delivering Patriots’ game balls to NFL officials for pre-game inspection.

The texts provide a fascinating window into what goes on behind the scenes in pro football games, including discussions about Brady’s anger at the inflation levels of game balls, and locker room staff jockeying for valuable autographed balls and other memorabilia from Brady. One staff member even texted his mother a picture of a ball Brady signed after exceeding 50,000 career passing yards. (Mom’s motherly advice “I would put that in a safe deposit box :-).”)

Take a few minutes to read through the text messages at issue in the Deflategate investigation, and you’ll see how revealing they are. Employees often view texting as a much more spontaneous and free-spirited form of communication than email, and they let their thumbs run wild.

Several cases have addressed the discoverability of employee text messages, and in my next post I’ll look at some of them.

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Joshua C. Garbarino, Esq. is director of managed review at eTERA Consulting in its Washington, D.C. office. eTERA is an end-to-end litigation consulting firm. Garbarino has experience in various aspects of eDiscovery, including review, case management, strategic planning, and government investigations. He can be reached here.