This destruction intrigued me from the first time I read about it because
unless they have no retention program in place, this investigation and
related video should be treated like the video from every other
investigation and believe me the league has plenty of investigations with
video evidence.
I agree that its certainly not spoliation unless it can be proved that some
specific and relevant threat of investigation or action could be reasonably
anticipated, but even so, unless they treat the video evidence of other
investigations this way, they are at the least being inconsistent in
applying retention.
The lawsuits now filed should cease any further destruction because of the
duty to preserve.
I'm a former sportswriter and years ago had access to the inside of college
athletic programs having worked in sports information so I'll be curious to
watch this play out from a records standpoint.
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Chris Browne
Sent: Tuesday, February 19, 2008 12:34 PM
To: [log in to unmask]
Subject: Re: NFL records
Thanks for entertaining me, Bruce.
My question is this: the Commissioner receives the records from the
Patriots and realizes that the information contained within constitutes
a violation of NFL rules; we know this because he levied a fairly stiff
penalty upon Coach Belichick and the Patriots; now, given the gross
amount of money exchanging hands between owners, players, sports books,
gamblers, et al. - especially at the championship level - I would argue
that a long-standing and documented effort to break rules and gain an
unfair advantage on the part of a franchise with multiple championships
would be reason to anticipate lawsuits, and as such the tapes and notes
- undeniably substantial evidence - should have been retained at that
point. While you are right - no lawsuits were 'pending', I think it
could be effectively argued that litigation should have been reasonably
anticipated. Is it a stretch to say that the Commissioners Office is
guilty of spoliation for destroying the tapes and notes? Also, with the
antitrust exemption, should the Commissioner have expected a federal
investigation?
As you may know, the Patriots have indeed now been named in at least two
different law suits, one by New York Jets loyalist Carl Mayer for $184
million dollars and another by former St. Louis Rams player Willie Gary.
I'm quite certain many more are to come. I'm intensely curious to see
these suits unfold, and to see how the destruction of evidence by the
Commissioner's Office plays out in court, if at all.
Anxious to hear your thoughts.
Chris
"The real art of conversation is not only to say the right thing at the
right time, but to leave unsaid the wrong thing at the tempting time."
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