WILLIAM B. BRYANT INN OF COURT PROGRAM 1

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1 WILLIAM B. BRYANT INN OF COURT PROGRAM 1 Team ONE Date: October 13, 2015: Team Leaders: Mark Austrian/Precious Murchison/Dan Mauler Sports Event: Patriots Deflategate (Civil Scenario) Facts: The NFL sanctioned the Patriots for deflating balls during the playoffs. Issue: The Patriots choose to challenge the sanction levied on the team and file a civil suit against the NFL in federal court. During discovery, the fight quickly focuses on key pieces of evidence: 1. The footballs at the heart of this case disappeared for a few days in between the playoff game in which they were used, and the realization of a cheating scandal. The balls were last reported to be locked in a Patriot-controlled sports locker. Once the scandal erupted and the NFL began its investigation, the balls were located in an unlocked nook near laundry facilities on the other side of the stadium, and away from the Patriot-controlled sports locker. 2. During the NFL investigation, attention shifted to four employees of the Patriots who handled the footballs before and after the game. One employee said that two of the other employees were taking pictures and recording video of the pregame routine as the employees were moving the footballs to the field. When those two employees were interviewed, one employee admitted to having a smart phone at the game, but claimed he dropped it in a bucket of beer later in the game because he was so excited by the Patriots win. He then claims to have thrown out that smart phone the following day and purchased a new phone. The other employee not only admits to having a phone and recording video of the pre-game preparations, but he helpfully sends an MPEG video file to the investigators that he supposedly recorded. The problem is that while the video file contains plenty of footage of the mundane pre-game operations of the crew, it strangely shows nothing of the movement of the footballs to the field or the collection of the footballs after the game. 3. NFL investigators discovered a Twitter account that supposedly belongs to the fourth employee. Using the Way Back Machine internet archive, a young, diligent investigator found several suspicious tweets tied to the Twitter account 1 Please note that while the events listed in the program are based on real life facts, the subsequent hypothetical questions and scenarios are not necessarily factually correct but simply being used as a platform to create an interesting/entertaining dialogue. This program is for educational purposes only. 1

2 that were published during the fourth quarter of the game, but were subsequently deleted five days later after the scandal was reported on ESPN. The tweets included: a. If I were a Jets fan, I d feel deflated right now. b. Tom Brady: A God among mere mortals (with a little help). c. Jets Suck Air Out of Life When the employee was asked about these tweets during interviews, he denied making those tweets. He also said that his ex-girlfriend (a rabid NY Giants fan and avowed hater of the Jets) had his password to his Twitter account and often tweeted from it. Two law firms who represent the Patriots and the NFL in the civil lawsuit must now decide how to handle the evidentiary issues. Potential issues: 1. Are the physical footballs admissible into evidence? 2. During Discovery, what should the parties do about the missing smart phone and the suspicious video from the other smart phone? 3. How will the NFL seek to admit the social media information into evidence at trial? How will the Patriots attempt to block the evidence? Lorraine v. Market Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) U.S. v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006) U.S. v. Cone,714 F.3d 197 (4th Cir. 1013) Griffin v. State, 19 A.3d 415 (Md. 2011) Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) Obtaining and Admitting Electronic Evidence in Federal Courts, Including Trial-Like Demonstrations, Federal Bar Association (Mar. 26, 2015) Team TWO: Date: November 17, 2015 Team Leaders: Melissa Maxim/Thomas Ingalls/Terry Eaton Sports Event: In 2015, the US women s national soccer team (USWNT) won the World Cup. Fact: In Carrera v. Bayer Corp., the Third Circuit ruled that a class of Florida consumers should not have been certified in their suit over Bayer Corp.'s One-A- Day WeightSmart vitamins because, without sales receipts or other sales records, it was too difficult to ascertain whether a consumer actually belongs to the class. 2

3 Issue: The USWNT is hosting an exhibition game at the Rose Bowl, which holds about 92,000 people. Ticket sales are low until the team announces that the first 30,000 attendees will receive an official USWNT jersey signed by all the players. After the announcement USWNT increases the ticket prices and the event sells out. It is later discovered that the USWNT only gave away 1,000 jerseys, that the jerseys were cheap knockoffs, and that the signatures were auto-penned. You bring a class action on behalf of the attendees. Your office is flooded with calls from over 200,000 people claiming to have attended the game, but most do not have their ticket stubs. Discuss class certification post Carrera. Carrera v. Bayer Corp., 727 F. 3d 300 (2013) Sindhu Sundar, 9th Circ. Critical In Growing Class Ascertainability Fight, Team THREE: Date: January 12, 2015 Team Leaders: Steve Grafman/Esther Young/George Valentine Sports Event: Alex Rodriguez was suspended from Major League Baseball (MLB) for his use of Performance Enhancing Drugs. Fact: In September 2014, the Advisory Committee on Federal Rules of Civil Procedure proposed an amendment to Rule 37(e) commonly referred to as the safe harbor rule. Issue: You represent Alex Rodriguez in a lawsuit against MLB claiming that he was wrongful suspended. During discovery, MLB discloses that ESI you have requested is no longer available. You believe that there is a spoliation claim. Discuss the new Rule 37(e). What should you consider and/or expect under the new rule? James S. Kurz, Daniel D. Mauler and Jacquelyn A. Jones, The Long Awaited Proposed FRCP Rule 37(e), Its Workings and Its Guidance for ESI Preservation, 3

4 Team FOUR: Date: February 9, 2016 Team Leaders: Mark Caroll/Robert Martin/ Margaret McKinney Sports Event: In 1933, George Preston Marshall changed the name of the Boston Braves to the Boston Redskins. The Redskins relocated to Washington, D.C. in Fact: On June 18, 2014, the U.S. Patent and Trademark Office (PTO) voted to cancel the six Redskins trademarks finding that the name was "disparaging to Native Americans. Issue: Your firm is hired by the Redskins to argue that the recent PTO decision violates the First Amendment. You've been assigned to the case. You have moral objections defending the Redskins name, and really want the PTO decision to stand. What do you do? What are your ethical obligations? Eugene Volokh, ACLU argues that cancellation of Redskins trademark violates the First Amendment, W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals: Team FIVE: Date: March 8, 2016 Team Leaders: Vernon Johnson/MaryAnn Snow/Kara Bennis Sports Event: Attack on Nancy Kerrigan by a hit man hired by Tonya Harding. Fact: Nancy Kerrigan is attacked on the ice by a man who clubbed her in the knee in Issue: You are contacted by Nancy Kerrigan who was struck and injured by another skater while out skating with her family at a local ice rink. During the initial client interview you learn that Nancy is not sure if the attack was intentional or an accident, she believed the man looked just like Tonya Harding s husband. The rink was very crowded that afternoon and so she is not sure. She knows it was very crowded that day and she only saw one person observing the rink activities, she s pretty sure she s seen more than one in the past. 4

5 What questions do you ask her to determine if there is a case there? What documents do you request from Nancy, as well as from the rink? How do you explain the litigation process? What are the next steps? Things to consider: Does Nancy have a potential lawsuit against the ice skating rink? Were they negligent in having it be so crowded and/or only having one rink supervisor available and on duty (and what is the rink policy on that). Does she have a lawsuit against the man that she believes hit her? Would she be able to recover for her injuries from the insurance company? Could the ice rink argue that Nancy assumed the risk? Did she sign a liability waiver when she entered the facility, and if so, is that binding on her if she files suit against the rink? Are there issues with presenting medical evidence at trial? What if Nancy has a pre-existing ankle condition? If Harding pursues litigation against the ice rink, during the course of litigation, can she enter the ice rink as a guest to skate or must she avoid the rink, or seek permission of the attorney for the rink prior to entering the rink? Suggested reading: o o o o Team SIX Date: April 12, 2016 Team Leaders: Jason Knott/Liz Lippy Sports Event: Aaron Hernandez murder trial Fact: Aaron Hernandez is charged with the murder of one of his friends. Issues: You are retained by Aaron Hernandez to defend him in a criminal trial for murder. The deceased, Odin Lloyd, was the former boyfriend of Aaron s fiancée s sister. The state s evidence is that the security camera at Aaron s mansion saw Lloyd on June 17, at 2:40 a.m., with Aaron and two of his friends, Ortiz and Wallace, in a rented silver Nissan Altima. Later that day, Lloyd s body, riddled with gunshots 5

6 from a.45, was found in a field near Aaron s home. Undated security footage from Aaron s home shows him holding a.45. Aaron s fiancée Shayanna Jenkins told the police that Aaron gave her a box, and told her to get rid of it. She threw it in a dumpster after putting her baby s clothes in it. She told the police that it was not heavy, that it reeked of weed and that she thought that it might just contain weed. The prosecution contends that the murder weapon, which has never been found, was in the box. When Aaron was arrested, he said, Oh, oh, my endorsements [of sports related prospects] are gone. Two weeks before the homicide, Aaron posted on his Facebook page I m going to get Odin Lloyd for dumping my GF s sister. He d better watch his back. I ll make sure he never works in sports again. The prosecution offers this as evidence of motive. Aaron told you he is innocent. He first told you that he witnessed the killing committed by somebody he knew and he didn t know what to do so he moved on with his life. The two other men were not his friends but were drug dealers. Recently the prosecutor told you that the coroner cannot testify to the exact time of death, but instead can offer a range of a few hours in which the murder could have occurred. After you told Aaron about this, he told you that he hopes the time of murder will come out because he was at a club at the time and he wants to testify to this. He also says Ortiz and Wallace will testify that he was at the club at the time of the murder and that Lloyd was not with them. Your investigator determines that the club closed at 3:00 a.m. on the morning of the murder. The prosecutor has not told you that Shayanna told them that the box was not heavy, that it reeked of weed and that she thought it just contained weed. What game plan do you adopt? Do you throw out a bunch of different red herrings and hope that one sticks? Do you object when the prosecutor offers evidence of Aaron s Facebook post about Lloyd? Can you call Aaron s friends to testify that they were at the club with him on the night of the murder? Will they testify? Do they have attorneys? If the trial judge (or Ortiz and Wallace s lawyers) refuses to let them testify, can you call Aaron to say he was at the club the night of the murder? Would that be a defense anyway? Shayanna testifies about the box but did not testify that it was not heavy. After the jury retires, the prosecutor tells you that she told them it was not heavy, it reeked of weed, and she thought that was what was in it. Do you have any recourse at this point? 6

7 In re Andrew J. Kline, D.C. Court of Appeals, April 9, 2015; D.C. Rules of Professional Conduct Rule 3.8(e); Brady v. Maryland, 373 U.S. 83 (1963). hernandezappeared-to-mouth-wrong-at-jurors-after-guilty-verdict Elonis v. United States, 135 S. Ct. (No )(June 1, 2015)(Threats on Facebook) Nix v. Whiteside, 475 U.S. 157 (1986)(client potential perjury). Bennett L. Gershman, Attorney Loyalty and Client Perjury - A Postscript to Nix v. Whiteside, 14 Am. J. Crim. L. 97 (1986), available at Model Rules of Professional Conduct 1.6, 3.3 (and comments 4-14); Rules for DC,VA,MD. ABA Formal Opinion (April 30, 1987) ABA Formal Opinion (August 6, 1993) Monroe Freedman, Understanding Lawyers Ethics (1990) Ronald Rotunda, The Notice of Withdrawal and the New Model Rules of Professional Conduct: Blowing the Whistle and Waving the Red Flag, 63 Oregon L. Rev. 455 (1984) [cited in 2011 but I couldn t find it on line to verify] Saul Jay Singer, The Client Perjury Problem, available at lawyer/novem ber-2009/ethics.cfm 7

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