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Bill Belichick better get ready to answer some tough questions — and he
won’t be able to escape them.

Forget about Belichick being able to exercise his Fifth Amendment rights,
if he doesn’t want to speak about his inside knowledge of the Giants’ head coaching search during a deposition for Brian Flores’ explosive lawsuit.

The Fifth Amendment — which protects against self-incrimination — almost certainly would not apply in this situation, two New Jersey-based
attorneys told NJ Advance Media.

Belichick could take the Fifth “only if for some reason he’s exposed to potential criminal liability,” said Craig Rothenberg, who frequently
handles civil suits. “If he is not, he has to answer the question.”

Even if Belichick’s answers in a pre-trial deposition exposed him to a
possible civil suit — and he isn’t being sued by Flores right now — that
is not a valid reason for taking the Fifth. It only covers self-
incrimination against criminal liability.

Plus, while civil depositions don’t happen in a public forum, lawyers
sometimes are allowed to release the question-and-answer transcripts to reporters without penalty. So Belichick’s responses — given under oath —
might eventually see the light of day.

That would take Flores’ lawsuit to another level, particularly if the
famously secretive Belichick offers testimony that pulls back the curtain
on what he knew — and how he knew it — about the Giants’ pursuit of Flores
and Bills offensive coordinator Brian Daboll, who became their head coach.

We are a long way from that happening. Flores, the recently fired Dolphins coach, filed a lawsuit Tuesday that accuses the NFL and three of its teams
— the Giants, Dolphins, and Broncos — of racial discrimination. The league
and those teams have denied Flores’ claims.

Flores accuses the Giants of conducting a sham interview with him for
their head coaching job, only to comply with the NFL’s Rooney Rule, which
is designed to promote minority candidates like Flores, who is Black.
Flores says the Giants had already decided, before interviewing him, that
they were going to hire Daboll, who is white. The Giants deny this.

Flores reached that conclusion because three days before his Giants
interview, he received a text message from Belichick, the legendary
Patriots coach, who is mentor to Flores and Daboll. The text was meant to congratulate Daboll on being chosen by the Giants. But Belichick
accidentally sent it to Flores. At that point, Flores says, he knew the
job was Daboll’s.

The NFL surely wants to settle this case as quickly as possible, to
prevent prominent figures like commissioner Roger Goodell and Giants co-
owner John Mara from having to sit for depositions. But Flores might
refuse a settlement and decide to push his suit as far as he can, if only
to make Goodell, Mara, and others have to answer questions under oath.

So what’s the next step? And how might this case unfold, particularly with Belichick’s critically important testimony about the Giants’ coaching
search?

To sort through the possibilities, NJ Advance Media interviewed Rothenberg
and a retired trial attorney. Both declined to speculate on the outcome of Flores’ suit, but provided general information about the civil suit
process and how it applies to this case — what’s allowed, what’s not, and
which details could emerge publicly.

The retired attorney — who is a former president of the New Jersey Trial Lawyers Association and a 20-year member of the New Jersey Supreme Court
civil practice committee — spoke on a condition of anonymity, because he
is not involved in Flores’ suit. But like Rothenberg, he is an expert in
civil suits, having taken more than 1,000 depositions during his career.

Flores has claimed that Belichick influenced the Giants’ decision to pick Daboll even before Flores’ interview happened.

“I think there are back-channel conversations that are had that oftentimes influence decisions,” he told National Public Radio of the NFL’s hiring practices, which he claims are racist. “I think [the Giants’ coaching
search] is a clear example of that. Bill Belichick is a clear example of
that. It was clear to me that decision was made with his influence. That’s
part of the problem. That needs to change.”

The retired attorney said that even if Belichick somehow committed
collusion in the Giants’ coaching search, that would not allow him to hide behind the Fifth Amendment in a deposition, because “there is no criminal exposure” in that hypothetical situation.

“Collusion, in a business sense, could be actionable civilly — where the
remedy would be money damages — but there’s no crime,” he said.

Without access to Fifth Amendment rights, if Belichick ultimately refuses
to answer questions at a deposition, he would be charged with contempt of court.

The more immediate questions stemming from Flores’ suit: How did Belichick supposedly know, so early in the process, that the Giants were going to
hire Daboll? Who told him? Was it a Giants decision maker or someone else, perhaps outside the organization? And how was the information given to Belichick? In a phone call? Through a text message?

Flores’ lawyers will attempt to pin down those answers. Their first step — reach out to Belichick informally and see if he is willing to talk. If he
says no, and he probably will, then he would be subpoenaed for an under-
oath deposition.

During the deposition, Flores’ lawyers would ask Belichick where he got
that key piece of information.

If Belichick says he doesn’t recall, Flores’ attorneys could subpoena his
phone records, text messages, and emails — a potentially challenging
route, because he isn’t a defendant.

If Belichick gives up a name from the Giants, the lawyers could subpoena communication from that person to Belichick, as part of the pre-trial
discovery phase.

This is an easier way of narrowing the search down, for Flores’ lawyers,
than trying to convince a judge to let them weed through Belichick’s
records. A broad, fishing expedition-style search like that usually isn’t permitted. The Giants are a party in the lawsuit, since they’re being
sued. Belichick is not a party in the suit. He is not being sued. So the
Giants would have less strict disclosure obligations during the discovery
phase than Belichick.

Still, barring an early settlement, Belichick will not be able to avoid a deposition in this case, because his testimony is so important to Flores’ accusations against the Giants.

“He can’t avoid a deposition,” the retired attorney said. “There is
literally no chance, because he’s a fact witness. He clearly has knowledge
of facts. I’m not saying he wouldn’t be able to give evasive answers. But
he’s not going to get out of a deposition.”

This deposition won’t air on live television, but what Belichick says
under oath could be released by, say, one of Flores’ lawyers — if that
person wants to release it — without fear of penalty. That’s because civil depositions, while not officially public record, are not totally
confidential like grand jury testimony is.

“Unless there is a court order issued with respect to a particular
deposition, anybody who has a transcript — meaning any lawyer — can
release it,” the retired attorney said.

He said such a protective order appears “really unlikely” in this case,
which does not seem to contain information that is “against the public interest.” The NFL and Giants would fight the release of deposition transcripts. They surely hope it doesn’t even get this far.

Rothenberg said a lawyer might choose to not release a deposition
transcript to reporters, if “he’s trying to protect” his case or client.

Flores has filed a class-action lawsuit, and publicly stated that he wants other minority coaches to join him. So perhaps releasing a deposition transcript ­— with a powerful person being pressed by lawyers about racial discrimination — might bring other coaches onboard.

Of course, NFL fans would love to see the really juicy stuff — Belichick’s
text messages.

And some of them — as long as they don’t contain personal information or
trade secrets — could wind up seeing the light of day. They’d fall under
the same “not totally confidential” umbrella as the deposition transcript, unless there’s a protective order concealing them.

But Flores’ lawyers face some hurdles in obtaining them — or emails or
phone records — since Belichick isn’t a defendant/party in the suit. And
it’s easier for lawyers to get documents from a party in a suit than a non-party.

Any subpoena attempt to get his personal records and data also would have
to be extremely narrow — beyond just asking for all messages and calls in
a three-day span, for example. One possibility is an in-camera review.
That means a judge would examine Belichick’s messages and order a limited release of the relevant ones into the case file.

There’s also this: Maybe Belichick received that key piece of information during a phone call, and not in writing. That would make things more problematic for Flores’ lawyers, since the evidence wouldn’t be as
concrete.

The NFL’s initial stage of fighting Flores’ lawsuit — as Pro Football Talk noted — could involve the league arguing that the case must be handled in
a closed arbitration setting, because of a standard clause in NFL coaches’ contracts. That would keep most of this stuff hidden.

So maybe, because of an arbitration setting or a monetary settlement, this
case never reaches the point of pre-trial depositions or even an open-
court trial.

But if it does, that could mean plenty of tough questions — and no Fifth Amendment shield — for Mara, fellow Giants co-owner Steve Tisch, and
general manager Joe Schoen. Plus, their relevant emails and text messages
being tossed into the case file — right along with Belichick’s.

“Schoen is going to get deposed, Mara is going to get deposed, Tisch is
going to get deposed,” the retired attorney said. “They can be asked about conversations they had with each other. They can be asked about all kind
of things. There’s going to be an incentive to settle the case.”

https://www.nj.com/giants/2022/02/brian-flores-lawsuit-why-lawyers-say- bill-belichick-cant-hide-behind-fifth-amendment-and-his-giants-secrets- might-be-revealed.html

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