December 2, 2009

Golf, Tiger Woods and ESI???

by Cary J. Calderone, Esquire

Even though I have been a golfer (those who know me might say golf nut) for quite a while, I never thought I would be blogging about a famous golfer here. When does golf ever have a connection to Document Retention and Electronic Discovery? Never, right? WRONG. Enter Tiger Woods and the media circus that has grown due to his recently admitted "transgressions." Of course there are many of the typical "he said, she said" stories dominating the media outlets, much like they do when Tiger is dominating a golf tournament. After all, Tiger Woods is always big news. However, what is most interesting to me is that if lawsuits are eventually filed, will Tiger be in even more trouble for attempting to destroy the evidence of his "transgressions?" Has he failed to preserve relevant Electronically Stored Information (ESI) relating to a reasonably foreseeable legal matter? If the answer is yes, then Tiger may have exacerbated his problems. Let me explain.

Tiger initially claimed the news stories of marital problems and affairs were unfounded and he issued a statement on his website Did that mean litigation could be "reasonably anticipated?" Did his wife mention "divorce" in one of their private "discussions" about his "transgressions?" If the answer to either of these questions is "yes" and he then went and tried to delete any damaging text, voice or other messages that would have made him look guilty, he may be in serious trouble. Tiger may face civil and/or criminal penalties under the Federal Rules (FRCP), and many state laws, that prohibit spoliation (i.e., destroying or altering) of potential evidence.

For example, there may be an issue with the voice mail Tiger allegedly left (it sure sounds like his voice but you be the judge) for his "friend" wherein he instructed her to change her voice mail message because his wife "went through his phone" and "may be calling." On the one hand, he has publicly claimed outrage at the press: "the many false, unfounded and malicious rumors that are currently circulating about my family and me are irresponsible." Moreover, one of his alleged mistresses hired the famous attorney, Gloria Allred, and issued a statement that the rumors are not true. Sure sounds like a lawsuit is brewing if it has not already been filed! On the other hand, Tiger is trying to get rid of messages that connect him to the alleged mistress and would indicate that the stories and "rumors" are actually fact-based and true.

Attorneys under the old rules and paper documents, would almost always go public and threaten to sue the newspapers and magazines on behalf of their celebrity clients. That may have been the standard operating procedure historically, but today, that kind of public condemnation means your client shouldn't also be going through their phone, and email accounts to try to delete potentially relevant material, no matter how much they would like to do so. In the days of paper evidence, lawyers might interview their client at the outset and ask if any damaging material "could be located?" The client could honestly answer "no" to that question when they knew they were completely innocent or, they had done a fantastic job of shredding, burning and burying any damaging documents before meeting with the lawyer. Nowadays, the new rules and technology have changed the question and perhaps the best initial public course of action because it is not a matter of if, but rather, when the damaging material will be "located."

This blogger will continue watching and reporting to see if and how Tiger navigates his way out of this "hazard."