http://www.si.com/2015/10/19/draftkings ... pappalardo
Limitations to the Pappalardo Report
Pappalardo’s stellar reputation does not mean his report for DraftKings is without limitations. As we saw with the investigation conducted by a similarly highly respected attorney, Ted Wells, into whether the New England Patriots intentionally used slightly underinflated footballs during the 2015 AFC Championship Game, DraftKings labeling Pappalardo’s investigation “totally independent” does not make it so. Even the most honest and thorough “independent” investigation should not be considered neutral, unbiased or conclusive.
For starters, when a client hires a law firm to investigate a business practice, an attorney-client relationship is formed. This relationship normally involves a duty on the part of the attorney to share advice on how to avoid or minimize potential liability. There is also a duty of confidentiality and a duty to avoid conflicts of interest. A law firm conducting an investigation is thus unlikely to publicly conclude that a client has broken the law. This is true even if the client attempts to assure the public that the investigation is “independent.”
Second, statements made by employees to an independent investigator are not made while under oath. Therefore, employees who spoke with Pappalardo did not so with the threat of perjury, which is a felony for knowingly lying while under oath. That’s not to say DraftKings employees would not face other sanctions for lying to Pappalardo, such as being suspended, fired or breaching an employment contract. Still, those consequences are not nearly as dire as the risk of criminal charges and imprisonment and thus the possibility of lying, embellishing or obfuscating is more likely in a company investigation than during a criminal investigation.
Third, independent investigators lack subpoena powers. This can have the effect of preventing the investigator from meeting with all relevant witnesses and accessing all relevant evidence. Such a limitation has appeared particularly impactful in certain “independent” investigations, such as the one conducted by former FBI Director Louis Freeh into Penn State following the Jerry Sandusky child abuse scandal. It appears Pappalardo had significant access in his investigation, as the DraftKings’ press release insists that Pappalardo met with “all senior management” and reviewed “all” relevant documentation. Then again, attorneys representing clients who are suing DraftKings may disagree with DraftKings’ characterization or at least want to find out for their own if it is true. Those attorneys would undoubtedly like to ask questions to DraftKings’ employees while they are under oath.