The National Football League’s (“NFL” or “League”) investigation into the New England Patriots’ use of deflated game balls in the AFC Championship Game is now focused on a locker room attendant. The attendant allegedly took the game balls from the officiating crew’s locker room to a bathroom on the way to the field.
The NFL has been a pioneer in incorporating the use of cameras and video replays into its games. It should, therefore, not be surprising that the league is in possession of a video that may be relevant to the controversy. In particular, the video shows the locker room attendant entering and exiting the bathroom in 90 seconds with the 24 footballs.
Whether the attendant did anything to the footballs while he was in the bathroom remains unknown. What is certain, however, is that the investigation will not be concluded before the Super Bowl. Ted Wells, the investigator hired by the NFL, has stated that he expects the investigation to last several more weeks. So far, nearly 40 interviews have been conducted, including Patriots personnel, game officials, and third parties with relevant information and expertise.
In addition to Wells, the NFL has also retained Renaissance Associates, an investigatory firm to assist in reviewing electronic and video information. This is not the first time that an NFL investigation focused on a video and relied heavily on the forensic inspection of electronic information.
Earlier this football season the NFL asked former FBI Director Robert S. Mueller III to lead an independent inquiry into the NFL’s investigation of the February 15, 2014 incident involving Ray Rice and his then-fiancée Janay Palmer. The investigation addressed two issues: 1) Did the NFL possess or view the in-elevator video of Mr. Rice and Ms. Palmer from the Revel Casino before it was publicly released? and 2) What information was obtained by, provided or available to the NFL during its investigation of the Rice incident?
As part of that inquiry, Mueller retained a digital forensic company to collect and image, and then search, the computers and mobile phones of NFL Commissioner Roger Goodell and other senior executives of the League, and those who reported to them, as well as computers in the League’s mailroom and video conference rooms. In addition, the investigators searched more than 400 computers connected to the League’s network for any digital traces or sign of the in-elevator video. Mueller found no evidence that the in-elevator video was or had been stored or viewed on a League computer prior to the video’s public release.
The NFL’s use of forensic inspection shows that the importance of forensic evidence is not limited to litigation. In fact, companies in varying industries have been using forensic inspection with increasing frequency to uncover employee misconduct. For example, companies often perform a forensic inspection of a departing employee’s laptop to determine whether company information has been misappropriated. The forensic inspection of employees’ emails and text messages is often a focal point of investigations into alleged acts of sexual harassment.
With the advent of technology, significantly larger amounts of information is being stored in electronic form. Given this backdrop, employers should consider the following:
- Implement policies that permit the employer to forensically inspect its equipment and communication systems, as well as policies for employee use of equipment (for example, policies outlining acceptable use of employer equipment, data retention, and the procedures for new and departing employees);
- Educate and train employees about company policies;
- Monitor email usage;
- Understand how electronic information is maintained;
- Take adequate steps to preserve electronic data, especially in the event of litigation;
- Work together with your IT department or outside IT professionals to establish set procedures for handling equipment used by employees to ensure the equipment is properly handled during forensic inspection;
- Develop a professional relationship with a Forensic Expert. This Forensic Expert may be essential in proving employee theft of confidential information or trade secrets; and
- Consult with legal counsel before conducting a forensic inspection.
As the majority of businesses’ documents and records (including those documents constituting confidential information or trade secrets) are stored digitally, the use of forensic inspections is more important now than ever. Employers should understand how electronic information is stored and take steps to preserve and protect such information from destruction, disclosure and theft.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
