3/23/2015

Lessons From DeflateGate

Flattened footballs emphasize chain of custody importance for insurers.

By Christopher Fusco , Richard J. Halmo

When Jermaine Kearse of the Seattle Seahawks made an impossible acrobatic catch on the Patriots’ seven-yard line near the end of Super Bowl XLIV, it seemed that the football spirits were conspiring again to snatch defeat from a New England Patriots’ victory (Remember Super Bowl XLII’s crazy, game-ending catch?). We know what happened next, though: the worst play call in the history of the game gave the Patriots the championship again and frustrated the clear will of the football gods.

This certainly wasn’t supposed to be the outcome, given the allegations of cheating that dominated the run up to the big game. “DeflateGate” became a word symbolizing the charge that the Patriots had purposely deflated footballs below the NFL rule for regulation air pressure for the AFC Championship game against the Indianapolis Colts. The theory was that these balls were easier to throw and catch, as they were softer and less slippery in an outdoor game that featured bad weather.

As the claims of cheating mounted against the Patriots and an investigation by a “white shoe” law firm commenced, crafty owner Robert Kraft employed a masterstroke of damage control to change the conversation. Kraft played the “chain of custody” card to insist that his team had done nothing wrong and that there was no proof of cheating by his team.

In a surprise pre-Super Bowl news conference, Kraft shot back at the team’s critics by proclaiming, “If the [NFL’s] investigation is not able to definitively determine that our organization tampered with the air pressure in the footballs, I would expect and hope that the league would apologize to our entire team, and in particular, coach [Bill] Belichick and Tom Brady for what they have had to endure this past week.… I want to make it clear that I believe, unconditionally, that the New England Patriots have done nothing inappropriate in this process or in violation of NFL rules.… [W]e expect hard facts rather than circumstantial leaked evidence to drive the conclusion of this investigation.”

Kraft shrewdly laid down an important legal marker. In sum, it is his position that if the league cannot prove with hard facts that the Patriots did something inappropriate to the footballs, then they are entitled to complete exoneration and a full Fish Called Wanda-style unreserved apology. After all, if the NFL cannot prove that the footballs were deflated while in the chain of custody of the Patriots, then it has no case against them.

Kraft’s chain of custody argument has long been used in procedural evidence law. In the general legal sense, “chain of custody” often refers to the tracking and maintenance of evidence from the time it is discovered to the time it is used at trial. As noted by Lewis Bass and Thomas Redick’s book Products Liability: Design and Manufacturing Defects, the authors state, “Documenting the chain of custody involves the identification of the location of the evidence when it was retrieved and all persons who came in contact with it until the time it was presented to the court.” Courts have held that the purpose of such documentation throughout the litigation period is to eliminate any question of tampering with the evidence in private before it is produced at the public trial.

Chain of custody issues traditionally arise in the context of criminal proceedings in which the state has to prove that the drugs they had in their possession were the same drugs that they obtained from the defendant at the time of his arrest. An Ohio appellate court, for example, noted in 1971 the importance of tracking the chain of custody in drug cases by explaining that “One white pill looks much like any other white pill, and hence, positive identification simply by observation is usually impossible.”

However, with the advent and adoption of electronic discovery, chain of custody issues have become critical in civil litigation, too. Typically in a civil action, chain of custody issues arise when a party fails to follow proper protocol in producing electronically stored information (ESI) as evidence in preparation for trial. In a Nevada employment matter, a court found significant chain of custody issues in the defendant’s production of ESI, such as the party’s failure to properly search for relevant responsive email files or identify several encrypted files in production. The decision attributed most of these discovery failings to the defendant’s failure to follow best practices by completing the requisite chain of custody paperwork, which would have required all relevant databases to be searched by counsel.

Snags with chain of custody issues usually can be prevented through proper documentation. The Supreme Court of Louisiana found that, in an action involving a school teacher’s positive drug test, an expert’s documentation regarding the teacher’s fluid sample, which included signatures on a chain of custody form and instructions for sending the sample for testing, formed a sufficient basis for the sample’s admission. The Louisiana Supreme Court also noted, “...courts have treated gaps within the chain of custody as a question involving the weight of the evidence, rather than its admissibility.”

The notion that a chain of custody does not have to be “perfect” to be admissible is widely accepted across many jurisdictions. In Central Security and Alarm Co. Inc. v. Mehler, it was alleged that because a ledger book had been in the possession of the company instead of its original owner for more than a year, there was a large enough gap in the chain of custody to question the admissibility of entries concerning particular amounts paid. The Court of Appeals of New Mexico found that the gap in the chain of custody was not sufficient to completely bar the ledger book, however, primarily because there were other ways to prove that the entries were legitimate, such as canceled checks. Thus, in many jurisdictions, it is apparent that courts will not bar automatically the introduction of evidence when the gap in the chain of custody is not material.

Though the break in the chain of custody is not an automatic bar to the evidence, the rule is not without its limits. Generally, the standard for admissibility of such evidence is whether the court can determine, in all reasonable probability, that the evidence has not been changed in any material manner. As stated by the New Jersey Appellate Division, “[I]t is not necessary for the party introducing such evidence to negate every possibility of substitution....” Therefore, in a general sense, it is not enough for a party to show that there is a gap in the chain of custody, but rather that such a custody gap calls into question whether the evidence was materially changed during a perceived break in the chain of custody.

In his comments, Kraft did nothing to explain what happened to the air pressure in the footballs while they were in sole possession of the Patriots (other than to offer denials of wrongdoing). Instead, what Kraft told the league’s investigators is that other people came into contact with the footballs, including the league’s own officials. Kraft clearly is indicating that the Patriots’ chain of custody had been broken by a force outside of the organization’s authority, and in that “break,” the footballs may have been altered.

Because it appears clear that the footballs were changed in a material manner, Kraft is attempting to disclaim liability by indicating that the break in his organization’s chain of custody of the footballs was the sole reason for the aberration. Indeed, most of the information so far seems to indicate that no one really knows who had possession of the footballs prior to the referees’ inspections of them. The effect of this argument is this: If the league doesn’t have the horses to show clear cheating, then the Patriots are going to challenge any type of punishment, suspension, or loss of draft picks. Since there appears to be no documentation of the chain of custody of the footballs prior to game time, Kraft is shrewdly putting the onus on the NFL to establish that the chain of custody laid solely with the Patriots.

All of this puts enormous pressure on the investigating law firm to come forward with well-defined proof of cheating and the identity of the wrongdoer. Further hampering the league’s ability to prove wrongdoing is the fact that the referees inspected the balls themselves and found them to be satisfactory for the game. Kraft is betting that the situation will remain murky, there will be no smoking gun witness, and that chain of custody issues will serve to insulate his team.

The team owner’s chain of custody throw down was no accident and was meant to send a clear message to the league to hand over the Lombardi Trophy and let the football gods be vanquished.   



Christopher Fusco is the managing partner of CLM Member Firm Callahan & Fusco LLC. His blog, Sports in the Courts, can be found at www.sportsinthecourtsblog.com. He may also be reached at cfusco@callahanfusco.com.

Richard J. Halmo is an associate at CLM Member Firm Callahan & Fusco LLC. He can be reached at rhalmo@callahanfusco.com. www.callahanfusco.com.

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