We’ve had a chance to ponder the curious decision of lawyer Eric “We Have a 90 Percent Chance of Winning” Deters to drop the lawsuit that he brought against the New England Patriots based on allegations that the team videotaped the final walk-through practice of the St. Louis Rams prior to Super Bowl XXXVI, and we’re officially confused.

The Monday filing that abandoned the case (for now, supposedly) was based on a contention by Deters that Matt Walsh, the key witness in the lawsuit, is expected to invoke his Fifth Amendment protection against self-incrimination.

But if the key question is “Did you videotape the Rams’ walk-through?”, would Walsh be admitting to committing a crime if he says, “Yes I did”?  The closest we could come to finding a potential law that possibly was violated is the Economic Espionage Act of 1996.  But if there were to be a criminal investigation in this regard, Walsh would surely secure immunity in exchange for cooperation aimed at allowing the Department of Justice to nail whoever higher on the totem pole might have told him to do it.

Besides, why abandon the case based simply on the belief that one of the key witnesses will try to invoke his constitutional rights against self-incrimination in a civil lawsuit (where, generally speaking, such protections aren’t available)?  If we were handling the case, we’d force Walsh to take the Fifth and then try to compel him to answer the question or force a finding of contempt of Court.  Even if Walsh eventually doesn’t talk, the fact that Walsh would essentially be admitting that he videotaped the practice likely would cast enough of a dark cloud over the Patriots’ case to persuade the presiding judicial officer to allow the action to proceed long enough for Deters and company to turn every stone in search of evidence — including putting John Tomase of the Boston Herald in the position of possibly having to choose between disclosing the source(s) for the February 2 article that spawned the lawsuit or eating his bread from a tin plate and drinking his water from a tin cup until he decides to do so.

In our view, there are two possible explanations for this development.  First, the Patriots might have made it known to Deters that if he proceeds with the lawsuit absent some evidence to support the allegations, the Patriots will unleash its team of lawyers against Deters personally.  Though what we’ve seen and heard about Deters suggests to us that such tactics wouldn’t work on him, it’s possible that he decided that the smarter course of action would be to take a wait-and-see approach as to what Walsh might say.

The other possibility is that Deters and Walsh lawyer Michael Levy agreed among themselves to put more pressure on the league to finalize an arrangement that will allow Walsh to tell his story by including in the dismissal notice an eye-opening suggestion that Walsh would invoke the Fifth Amendment, which strongly implies that Walsh will tell Commissioner Roger Goodell and/or Sentator Arlen Specter (R-Pa.) that Walsh taped the walk-through.  Rule 41 dismissals of lawsuits don’t usually set forth the reason for the action; the gratuitous inclusion of a reference to Walsh taking the Fifth could have been done to further the mutual goals of Deters and Levy to put Walsh in a position where he can talk.

And that’s what it all comes back to.  This thing isn’t going away until Walsh talk.