Today, I turn the keyboard over to my colleague Victor Jones for a special guest post.  Victor practices in Kelly Hart’s New Orleans’s office.  He has some thoughts on what employers might learn from the fallout over Tom Brady’s failure to preserve the cell phone he used during and immediately after last year’s AFC Championship game.

Last week the NFL announced that its commissioner Roger Goodell rejected New England Patriots’ quarterback Tom Brady’s appeal of a four game suspension for his involvement in the now-termed “Deflategate Scandal.” Goodell’s 20-page decision, was reached in large part after Brady revealed to investigators that he had destroyed his cell phone, which may have contained text messages between himself and Patriots’ equipment personnel regarding the inflation of footballs that were to be used during games. Brady contended that he had routinely destroyed his cell phones prior to the investigation, and that he did not destroy his most recent cell phone to hide any evidence from the NFL Commission. However, according to an official statement released by the NFL Goodell concluded that “Brady was aware of, and took steps to support, the actions of other team employees to deflate game footballs below the levels called for by the NFL’s Official Playing Rules.” One justification for Goodell’s decision, as explained by the official statement, was Brady’s destruction of his cell phone containing text messages that had been requested by investigators:

On or shortly before March 6, the day that Tom Brady met with independent investigator Ted Wells and his colleagues, Brady directed that the cell phone he had used for the prior four months be destroyed. He did so even though he was aware that the investigators had requested access to text messages and other electronic information that had been stored on that phone. During the four months that the cell phone was in use, Brady had exchanged nearly 10,000 text messages, none of which can now be retrieved from that device. The destruction of the cell phone was not disclosed until June 18, almost four months after the investigators had first sought electronic information from Brady.

You might be thinking, “what does this have to do with employment matters?” Well, as legendary Cowboy’s Coach Tom Landry once said, “Football is to Texas what religion is to a priest.” There’s that, and there are three key takeaways from all of this:

  1. Employers should consider implementing company policies regarding the exchange of work-related information via personal devices of their employees, to prevent the destruction of information that may be useful in an investigation or proceeding.
  2. A failure to timely and properly cooperate with an agency investigation may alone, result in an adverse ruling against an employer and/or employee. In reaching his decision, Goodell noted that Brady did not disclose that he had destroyed his cell phone until almost four months after investigators initially requested it.
  3. An employee’s destruction of information that may be useful to an investigation or legal proceeding, regardless of the intent, may create a presumption that the employee intentionally desired to withhold evidence, and ultimately a presumption of liability against the employee and/or employer.

Note: One day after Goodell rendered his decision, Brady and the National Football League Players Association (the players “Union”), filed a 54-page petition to vacate the decision, which you can read here.