Ted Wells needs to speak again. It’s time for the “Context Report on the Patriots’ Context Report.”
The Patriots came out guns a-blazing Thursday with their own 20,000-word report, deconstructing Wells’s report point by point.
Not all of their points worked in their favor. The explanation for Jim McNally’s “deflator” comment made the Patriots a national punchline. Their explanation as to why Tom Brady called John Jastremski so many times in the first few days of Deflategate also is eye-rolling.
“Since this was Mr. Jastremski’s first Super Bowl experience since assuming the role as game football preparer, it is not surprising he and Mr. Brady spoke a lot about football preparation during the days after the AFC Championship Game,” the Patriots wrote.
This had to be done over the phone and not face to face at Gillette, where both men work? OK.
However, the Patriots made several compelling points in their defense. One that needs to be explored, and demands a response from Wells, is the idea that the Patriots didn’t fully cooperate with Wells’s investigation.
The Patriots’ lack of cooperation was highlighted by Wells in his report, reiterated by Wells last week in a media teleconference, and played a large factor in the harsh punishments doled out to Brady and the Patriots by Troy Vincent and the NFL office.
“It is significant that key witnesses — Mr. Brady, Mr. Jastremski, and Mr. McNally — were not fully candid during the investigation,” Vincent wrote last week.
In particular, Wells highlighted the fact that the Patriots refused to make McNally available for a follow-up interview after Wells discovered the “deflator” text message.
“I had not found that text during the first interview, at the time of the first interview. I wanted to confront him with that,” Wells said. “I asked for a second interview. I said I would go to New Hampshire, I would interview him in the morning, afternoon, night, I didn’t care. I would make myself available whenever he was free and not only did they say I couldn’t interview him, they said they would not even tell him about my request for an interview. So on that particular point, which was critical to this investigation, they did not cooperate and the report sets that out.”
Thankfully, the Patriots helped shed more light on this situation by releasing e-mails sent by their attorney, Daniel Goldberg, to the Wells team. And the e-mails do provide a lot more context as to why McNally was not produced for a follow-up.
Wells, it seems, was not 100 percent genuine in his description of the Patriots’ non-cooperation.
The Patriots point to a Feb. 5 e-mail from Goldberg to Wells laying the groundwork for Wells’s investigation: “The interviews will be arranged so that, barring UNANTICIPATED CIRCUMSTANCES [emphasis mine], there will not be future multiple interviews of the same person.”
Now, the full back story:
It wasn’t just that Wells “had not found that text during the first interview” as he said. Wells actually had the “deflator” text in his possession well before his seven-hour interview with McNally. The Patriots gave Wells all of Jastremski’s and McNally’s cell phone information at the beginning of the investigation. Wells didn’t ask McNally about that text because no one on Wells’s team had thought to look back to May 2014 in the text conversation between McNally and Jastremski.
Is that an “unexpected circumstance,” or incompetence from a team of lawyers racking up $1,000 an hour?
Wells finally found the text in March, and demanded a follow-up with McNally. Goldberg fired back several e-mails explaining why that wasn’t going to happen.
“You refused to give me the information I requested except to say that the topic was ‘new,’ ” Goldberg wrote in an e-mail March 9 that the Patriots released Sunday. “It turned out, however, that the topic involved asking about texts that you had before his prior interview — so it was not something that arose from extraordinary or unanticipated circumstances, but was apparently just something you neglected to pursue in his earlier interview.”
It does sound like a lawyer giving Wells the runaround. “Sorry, you already had your chance. No dice.”
But it’s actually a fairly common standard in litigation.
“In litigation, I would say there’s nothing unusual about saying, ‘You’ve had your deposition, you had all your documents, just because you didn’t review them all ahead of time doesn’t give you a right to go back and re-depose the witness a couple weeks later,’ ” said Shannon Liss-Riordan, a leading employment and labor attorney in Boston. “There’s no way I’d be allowed to do that, and vice versa.
“In terms of what would be considered standard fare in a litigation context, that’s full cooperation.”
Now, this isn’t standard litigation (that’s coming this summer). This is a workplace investigation.
The other problem we run into now: What is the NFL’s definition of “full cooperation?”
Naturally, the NFL doesn’t have one. There’s nothing listed in the collective bargaining agreement or the NFL’s bylaws about what constitutes “full cooperation.” And the two sides apparently had an agreement about one interview per witness barring an “unexpected circumstance.” It sure doesn’t appear that Wells discovering the “deflator” text after the fact was an “unexpected circumstance.”
“Certainly were we in litigation you would not get the relief you now seek without disclosing specifically what it is that has triggered the request for a fifth deposition of the same witness and what it is you plan to cover,” Goldberg wrote March 17. “I do not feel I am asking you for anything out of the ordinary by making this request.”
An NFL source close to the Wells investigation fired back late Sunday.
“The investigators did not agree with Dan’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,” the source said. “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.”
So we need to hear from Wells again. Did he agree to those terms about “unexpected circumstances?” How did he respond to Goldberg’s e-mails?
I asked the NFL to release Wells’s end of the e-mail chain, but the league did not respond.
And there are other questions that the NFL needs to answer. Why didn’t the league publicly correct the false leak about one of the Patriots’ footballs measuring at 10.1 PSI, which started the whole hysteria? Why didn’t NFL executive James Daniels say anything when he watched McNally walk away with the footballs right in front of him?
The Patriots didn’t provide satisfying answers to every question, but they at least responded to the accusations and added more context.
Now it’s time for Wells and the NFL to do the same to justify their harsh punishments.