alt.legal: The Tom Brady & Hillary Clinton Schools Of Quasi-Discovery

In sports and in politics, enabling fundamental fairness and symmetry in an adversarial proceeding seems like a positive goal. Perhaps there is room to borrow more from eDiscovery in other quasi-litigation arenas.

I want to be clear — I did not tell Mr. Brady at any time that he would be subject to punishment for not giving — not turning over the documents [emails and texts].  I did not say anything like that.” — Testimony of Ted Wells, Partner, Paul Weiss, and special investigator for “Deflategate”

“I thought it was supposed to be off hook to work.” — hrod17@clintonemail.com, in an email dated December 23, 2009, regarding a fax machine.

Before this year, the words “Clinton” and “Brady” in the same sentence would usually conjure memories of the historic gun control legislation (the “Brady Act”) requiring criminal background checks that President Bill Clinton signed into law in 1993.

That was then.  In 2015, when you mention “Clinton” and “Brady” in the same sentence, there’s a chance that the sentence now refers to violence to evidence.  And as much as I love both sports and politics, whenever either Brady or Clinton come up in conversations, I geek out and unapologetically announce the consequences of their actions were this civil litigation, under a rubric of odd and nuanced doctrines called “eDiscovery.”  Unsurprisingly, my friends are nonplussed. Sports and politics are both, at their cores, exercises in rampantly biased admiration.

Yet, if these rules exist “to secure the just, speedy, inexpensive determination of every action and proceeding,” why should we not impute their value onto fact-finding arbitrations before the NFL Commissioner? Why not Congressional subpoenas and investigations? Indeed, in efforts to protect the enshrined principles of discovery, federal judges have doled out serious sanctions when these principles are violated, including fines, the terrible adverse jury inference (basically, just quit right now), even default judgment. Relevant, admissible evidence matters that much in federal litigation.

Does that evidence somehow matter less in non-litigation (but totally adversarial) contexts? Let’s take a look at Brady and get an update on how Clinton’s doing since I last checked in on her.

Brady Jiu Jutsu

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Everything in sports is collectively bargained, enabling the existence of what would otherwise be sports monopolies. The NFL arbitration process is a great quasi-litigation forum to examine how potential eDiscovery principles might interact.

Some nuggets from Judge Barman’s opinion vacating the award against Tom Brady, from the perspective of quasi-discovery:

  1. What the court doesn’t say: it’s interesting to note that Judge Berman never specifically addresses Brady’s alleged bad discovery conduct. This omission speaks volumes. Instead, the court’s analysis reviews the arbitration award and vacates it on the basis of no notice, as well as …
  2. The NFL’s failure to provide quasi-discovery, in the form of documents Brady requested related to the Wells Report. The judge does not discuss Brady’s failure to produce potentially relevant text messages, but instead finds failure on the part of Commissioner Goodell in not producing the underlying information relied upon in — or allowing testimony explaining — the Wells Report. Goodell himself conceded that “the NFL nor any NFL member club has subpoena power or other means to compel production of relevant materials or testimony.”

Weirdly, even though Goodell and many in the league focused on Brady’s failure to produce relevant text messages, the court read in the requirement for transparent discovery in favor of Brady. This reversal of fates is highly awkward from an eDiscovery standpoint: one would expect that the court would impose a remedy for Goodell’s non-compliance, i.e., give Brady the stuff he asked for. But the decision was also vacated on other grounds, so I suppose there was no reason for that.

Still Crossing The Bridge To The 21st Century?

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So Hillary doesn’t know how to work a fax machine. Also, she gets annoyed when her White House meetings don’t happen. There’s a lot of fun emails in what she turned over and is now publicly available via FOIA. And yes, she should not have been using her personal email server for government, classified communications. But so far, there’s nothing incriminating, nothing related to the cover-up of Benghazi. Just a not-so-tech-savvy career politician, hard at work.

Yet, Clinton continues to face heat, hounded by the media in the court of public opinion, and still under fire from GOP leaders in Congress.  Considering she ultimately complied with the Congressional subpoena requesting documents, it is bizarre that she may have more long-suffering effects than Tom Brady. Over the course of the last week, Clinton has gone from sticking to her guns (“What I did was allowed.”) to apologizing (“That was a mistake, I’m sorry about that. I take responsibility.”) just to put this matter to rest.

What To Make Of This

So Tom Brady destroyed a phone with potentially relevant text messages, and the court found that the NFL owed Brady documents, not the other way around.  Hillary Clinton, on the other hand, ultimately made all relevant documents available to her investigating party, some confidential, but none of which have been damning for her, and she continues to suffer for it.

I’m not really sure what to make of this. I don’t take the NFL’s side, given their general lack of rational reasoning behind the suspension, but it seems like they should be allowed to take into account Brady’s destruction of potentially relevant data.  I don’t necessarily think Clinton’s hands were clean with her email, either, but her ultimate production of relevant data should have mostly resolved the issue. Her conflation of government classified information and her private email communications, while not good, does not appear to have done any real damage.

In sports and in politics, enabling fundamental fairness and symmetry in an adversarial proceeding seems like a positive goal.  Perhaps there is room to borrow more from eDiscovery in other quasi-litigation arenas.


Ed Sohn is a Global Director at Thomson Reuters’ award-winning legal outsourcing company, Pangea3, which employs approximately 1,000 full-time attorneys globally. After five and a half years as a Biglaw litigation associate, Ed spent over two years in New Delhi, India, managing hundreds of Indian attorneys and professionals in delivering high-value managed legal services. He now focuses on developing integrated technology and outsourced legal solutions. You can contact Ed about e-discovery, managed legal services, theology, chess, Star Trek The Next Generation, or the Chicago Bulls at edward.sohn@thomsonreuters.com.

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