Category: Other Posted on Aug 06, 2015

Destruction of Evidence (Looking at You, Mr. Brady)

How “Deflategate” Relates to Everyday Legal Problems

Tom Brady had his assistant destroy his phone. He then claimed the messages are unavailable. (More about that in a moment).

In any civil proceeding, anyone who destroys records of alleged wrongdoing will be assumed to have been guilty and hiding things. We have seen it with “missing x-rays”, missing or changed medical records and all sorts of claims that sound too much like “my dog ate my homework”.  In 2006, the court in Connecticut, recognized a new tort (claim for damages) that is the destruction of evidence. Someone who destroys evidence which could have helped another is responsible for the damages that arise out of the destruction of the evidence.

Does That Mean He’s Guilty (From a Legal Standpoint)?

As to the missing messages, little is known of the efforts by the NFL to find them. As far as we know the NFL did not contact the many people these messages were sent to (did they all destroy their phones as well?). As far as we know the NFL only checked with the phone carrier, but did not check on whether the app Brady used was one of the many independent providers who store the messages on the Cloud.

The bottom line is it looks bad, it could be used against him in court of law and it only contributes to the lack of trust we have in the system.

Bruce Stanger

My litigation experience includes family law, divorce, product liability, construction law, professional negligence, shareholder disputes, legal malpractice, and general commercial litigation.

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