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Monday, March 12, 2012

New Orleans Saints' "Bounty" Scandal Illustrates the Power of E-Mails In Uncovering Misconduct

New Orleans Saints

The National Football League is expected to impose perhaps the most severe punishment in its history after revelations that coaches with the New Orleans Saints offered an incentive program for injuring opposing players. E-mails, it turns out, played a critical role in cracking the case--and that has implications that go way beyond football.

Former defensive coordinator Gregg Williams reportedly administered the program, with "bounties" of up to $1,500 for injuring opponents, especially star quarterbacks such as Brett Favre and Kurt Warner. The rewards could double or triple for a debilitating blow to an opponent during a playoff game. Isn't that charming?

The Saints' behavior reminds me of a Republican electoral strategy. If can't win a football game (election) the fair way, then do it by cheating. Maybe Karl Rove should become the team's next general manager.

The current GM, Mickey Loomis, and Head Coach Sean Payton took full responsibility for the scheme in statements released last week. The league has not announced disciplinary measures, but they are expected to include suspensions, fines, and loss of draft picks. At least one prominent journalist, Gregg Doyel of CBSsports.com, has suggested that crimes might have taken place.

The bounty story so far has been mostly confined to the world of sports. But a USA Today story, titled "Saints to Pay Dearly: NFL Poised to Lower the Boom for Team's Bounty System," reveals information that applies to our justice system at large.

How did NFL security officials discover the bounty program? They did it by sorting through 18,000 documents, mostly e-mails from within the Saints organization. That figure, by the way, is not a typo. The NFL unearthed almost 18,000 e-mails related to a corrupt and unethical plan involving one professional football team. From the USA Today article:

The NFL said its findings were supported by 18,000 documents. The person told USA TODAY that these mostly contained e-mails that include details about payments. NFL investigators were granted access to the team's computer system by Saints owner Tom Benson after he was presented with additional information about the program earlier this year.

Now consider these questions: (A) How many e-mails must exist about various Bush-administration scandals--torture, political prosecutions, the firings of U.S. attorneys . . . the list goes on? (B) How many e-mails must exist that provide details about corruption in our justice system--about the Don Siegelman and Paul Minor cases, about unlawfully handled divorce cases such as Rollins v. Rollins, about my own court travails?

The number of e-mails under both categories must range well into the millions. The take-home lesson: E-mail might be the greatest corruption-fighting tool ever invented. Now if we can find law-enforcement officials who have the spine to use it.

As the Saints story tells us, corrupt people tend to be brazen, stupid, and lazy about their use of e-mail. Imagine how many digital paper trails are out there, providing a road map of scandals that would dwarf the "bounty" story.

Let me provide an example from my own life: I have a pending federal lawsuit against a number of entities and individuals connected to my unlawful termination after 19 years on the job at the University of Alabama at Birmingham (UAB). The case is being "handled" by U.S. District Judge William M. Acker Jr., an 84-year-old Reagan appointee who is as corrupt as he is wrinkled.

U.S. Judge William Acker (right)
How corrupt is Acker? I will answer that question with numerous details in upcoming posts. But for now, we will focus on one issue. Acker granted summary judgment for the University of Alabama Board of Trustees and other defendants in my case, and that ruling is now on appeal before the U.S. Eleventh Circuit in Atlanta. Acker granted summary judgment, dismissing the case, without giving me (or the defendants, for that matter) an opportunity to conduct discovery.

Now that simply cannot be done under the law. It's a little like a doctor declaring you dead without checking for a pulse.

Rule 56 of the Federal Rules of Civil Procedure makes it clear that summary judgment cannot be considered, much less granted, without discovery. After all, discovery is the process by which both sides gather evidence to support their cases. It's fairly important to the litigation process--probably as important as breathing is to living.

It's not as if the law is unclear. In the Eleventh Circuit, the issue has been governed for more than two decades by a case styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988). We will discuss Snook in detail shortly, but here is the take-home point from the ruling:

This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

I was not allowed to even make discovery requests, much less obtain responses--and I filed two motions alerting the court to this. That's all I needed to do under Eleventh Circuit precedent cited in Snook:

In this Circuit, a party opposing a motion for summary judgment need not file an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure in order to invoke the protection of that Rule. . . . Form is not to be exalted over fair procedures.

Did Judge Acker care about fair procedure in my lawsuit against UAB? Not one iota. His actions tell me that he is mainly interested in protecting the managers and other higher ups in the University of Alabama System who signed off on cheating me out of my job. Perhaps more importantly, Acker probably is interested in protecting various members of the legal tribe who know about my termination and might have played major roles in making it happen.

What, specifically, is Acker concerned about? Here is my guess: The judge knows that all sorts of e-mails exist that would show who screwed me out of my job and why. Acker knows that I would be entitled to copies of these e-mails during a legitimate discovery process, and he also probably knows that the e-mails would lay out a civil conspiracy--and perhaps even criminal activity.

The University of Alabama is perhaps the single most powerful entity in this state, and it has friends in major law firms who don't want the truth to be revealed about who pulled what strings in my firing.

E-mails, of course, are not the only form of discovery to which I am entitled. But Acker's unlawful handling of my case strongly hints that a serious paper trail exists somewhere in cyber space. Those e-mails, alone, probably would be enough to prove my case against UAB and its associates. And that's why a federal judge is playing a not-so-subtle game of cover up.

Certain officials with the New Orleans Saints probably will soon be wishing someone had pulled such a cover up for them.

5 comments:

James Greek said...

All, tank god for shows like Real Ports with Bryant Gumbel.

Anonymous said...

at 84 you do not need to be working much less at a law capacity.. you mind does not think properly regardless of who you are.

I can tell a difference each decade.x

Anonymous said...

Maybe Wikileaks will someday leak the University of Alabama's emails.. would that not be interesting on what actually goes on????

legalschnauzer said...

Anon at 12:24:

I agree that lifetime appointments that allow judges to serve well into senility is a problem. In Acker's case, however, I don't think the problem is his mind; it's his ethics (or lack thereof).

legalschnauzer said...

Anon at 12:26:

You raise an interesting point about WikiLeaks. Not sure what their capability is, but certainly would be interesting to unearth e-mails from a number of targets, including universities and the U.S. Department of Justice. Universities probably are pretty far down on their target list because the public perceives them as being much less corrupt than they really are. The DOJ, however, should be high on the list--both during Bush and Obama regimes.