Last week’s stunning events in #DeflateGate, with an Angry Ted Wells conference call followed by a Ted Kaczynski-style manifesto from the Patriots, ultimately may be a pair of sparklers in comparison to the fireworks that will fly this week, as a quarterly ownership meeting looms.
From the team’s perspective, owner Robert Kraft has gone on the record with Peter King of TheMMQB.com, saying plenty and not saying plenty more. From the league’s perspective, the week has commenced with a leak to Ben Volin of the Boston Globe in response to the team’s position that the failure to produce Jim McNally for another interview did not amount to failure to cooperate.
The Patriots contend that they made McNally available multiple times to the NFL, and that before his lengthy interview as part of the independent investigation/special prosecution Ted Wells and company had access to all of the text messages about which they wanted to question McNally in a second interview. The Patriots believe Wells agreed that witnesses wouldn’t be made available for a second interview absent “unanticipated circumstances,” such as the discovery of new evidence.
Here’s what the NFL leaked to Volin on Sunday night: “The investigators did not agree with [Dan Goldberg’s] characterizations in his e-mails and made clear after hearing out all of Dan’s arguments that they considered the Patriots in violation of the duty to cooperate. This is not like a normal piece of litigation, and if an investigator misses a piece of evidence he has an absolute obligation to follow up on the evidence. The subject of the investigation cannot hide behind technical procedural arguments, especially when the investigators disagree that there ever was an agreement.”
If that’s the case, and as Volin notes, Ted Wells needs to say so publicly. He already had a chance to do that last Thursday night in comments to Bart Hubbuch of the New York Post, but Wells didn’t. Instead, Wells contradicted his own report — and said nothing about the absence of an agreement that witnesses wouldn’t be questioned a second time based on evidence that Wells had in his files before the first investigation.
Apart from whether Wells agreed to have only one bite out of each apple (which is an extremely common reality in all forms of litigation), the fact that Wells and company flat-out missed two key text messages in which McNally uses the term “deflator” and “deflate” speaks to a lack of competence that the NFL should regard as troubling. Any first-year practicing lawyer knows that, before conducting a major interview in any case, it’s critical to know everything about the person being interviewed.
When documents are available to be reviewed before the interview, the task is simple: Review every single one of them. Twice. When a lawyer is being paid by the hour, there’s no incentive to skip steps — and there’s no incentive to rush through the process of putting eyes on each word appearing on every sheet of paper.
Even if Wells and company somehow missed the documents (which is embarrassing in and of itself), they easily could have done a text search for any words or partial words of interest (like “deflat-“) to pull up any overlooked documents. Regardless, the failure to spot those critical text messages before the first official interview with McNally would be regarded by many lawyers as malpractice.
So here’s the bigger question the NFL surely won’t be asking itself as it processes the failure of Ted Wells and his team to find two of the most critical text messages before their first interview of the most critical witness in the case: If Wells missed seeing such obvious and important documents, what else has he missed?