Defaults, Discovery Abuse and Dropbox: Inadvertent Production and Impeachment
Me and Alex, Alex Jones
Alex Jones, Alex Jones, Alex Jones
We got a thing goin’ on
We both know that it’s wrong
But it’s much too strong
To let it go now
We gotta be extra careful
That we don’t build our hopes up too high
‘Cause she’s got her own obligations
Adapted from “Me & Mrs. Jones”, Kenny Gamble, Leon Huff, and Cary Gilbert, originally recorded by Billy Paul
When the Sandy Hooks plaintiffs’ attorney impeached Alex Jones on the stand with an inadvertently produced text during the damages trial, there was an audible gasp across the eDiscovery community following the proceedings.
Mark Bankston, of Farrar & Ball was positively vibrating out of his suit in his questions to Jones, almost as much as Alex Jones was sweating, squinting and squirming in the witness chair.
Validating previous deposition answers about not Jones having emails and having searched for relevant texts and not having them, suddenly, a text from Alex Jones was displayed on monitors to the court, jury and witness without objection. Bankston described it as having come from a production made by Jones’ attorney by mistake 12 days ago, now in his possession due to Texas Civil Procedure.
Evidently, a Dropbox folder was the production method, and the link given by the paralegal for defense was a link that offered up a digital copy of Jones’ entire cell phone and some medical records of plaintiffs in another case and more.
The next day, F. Andino Reynal, name partner & Jones’ defense attorney, was back in court arguing that the spirit, if not the letter, of the court’s orders were violated by Bankston, requesting the clawback and destruction of the electronically ESI so linked, and the opportunity to supplement. Because there are other proceedings, including other Sandy Hook plaintiffs in other courts, grand juries and the Congressional Investigation into January 6th events, the court’s order on what to do with this particular production has implications far beyond this particular trial.
From Marcy Wheeler @emptywheel (link works best in Chrome), who summarized what was said “Axios style:”
Marcy Wheeler’s summary:
- Reynal’s legal assistant sent a file transfer link to Bankston, another of the plaintiff’s attorneys, as well as Reynal and another Jones attorney. The link led to a variety of other files, including confidential psychiatric files on the Connecticut plaintiffs
- The entire file was around 300GB of material
- 2.3GB of it is phone material, including “intimate messages with Roger Stone”
- Reynal claims that based on his review, Jones’ phone “is not in there,” but instead a review copy of text messages of a six month period between August of 2019 and the first quarter of 2020
- This happened once before, but in that case, Jones’ lawyers successfully identified privileged material and clawed it back
- Judge Maya Guerra Gamble agreed that the material should have been turned over a year ago
- Bankston has been asked by January 6 Committee to provide the phone and the plaintiff’s counsel in Lafferty (the latter of which can be shared under an information sharing order)
- Gamble suggested Reynal has made 17 requests for a mistrial and that Bankston has spent so much time in trial he has had no time to search on the material
For our new EDRM Ripped From the Headlines Flash Webinar series, EDRM asked our Craig D. Ball of Craig D. Ball PC, a Texas litigator and forensic expert whose practice is limited to special master and court appointed neutral in eDiscovery (and EDRM’s General Counsel) to help us make sense of the Texas climate on clawbacks, what the Texas snap back rule allows, and the impact of using cell phone evidence like this, in evidence and for impeachment.
Craig obliged, and with his trademark wit and precision, wrote a post to include the applicable rules and procedures juxtaposed with what happened at trial, Ripped from the Headlines: Alex Jones & Inadvertent Production.
So, the plot thickens! It’s not so clear that defense counsel “did not take any steps to identify it as privileged or protect it any way.” If what I’ve related here is all there was in term of exchanges (and it shouldn’t be), plaintiffs’ counsel is betting heavily that specific assertions of privilege are required for snap back to apply and that citing a “mistake” and asking plaintiffs to “disregard the link” is insufficient to forestall waiver in a state that bends over backwards to protect attorneys from the consequences of inadvertent waiver.
Gutsy or unprofessional? Your call. Was a new link to a collection scrubbed of privileged content ever supplied? Why didn’t defense counsel promptly object at trial and protect the record? Will we next need to discuss the crime/fraud exception to attorney-client privilege? Any way you cut it, this mess promises to be a case study in discovery abuse and lawyer misconduct. Stay tuned!
Craig. D. Ball
Albert Fox Chan, the founder and CEO of the Surveillance Technology Oversight Project (STOP) writing for Wired, put this dispute into context about how to handle inadvertent productions and court fights over them in Alex Jones’ Accidental Text Dump Is Hilarious—and Alarming:
While corporate lobbyists have responded by saying that the solution is to just limit discovery rights, it’s clear that would just give companies a green light to violate the law without liability. Instead we need a fundamentally different approach to the zero sum, adversarial discovery dynamic. In arbitration, parties already select neutral third-party arbitrators to resolve disputes. A similar process could be used to select discovery vendors who take ownership of the whole process, running the fact-finding effort rather than simply resolving conflicts between two warring sides. Around the world, many legal systems have cooperative fact-finding. In fact, the American legal system is quite distinctive in how adversarial we make this work. We could even create universal data storage standards to make it easier to know which documents we do and don’t need to produce. While no one standard would be a panacea, harmonizing technical expectations could dramatically reduce work and costs. Several organizations have already developed their own models, such as the Sedona principles, International Standards Organization, and the Electronic Discovery Reference Model.
Update 8/5: Alex Jones must pay the Sandy Hook parents $45.2M in punitive damages, in addition to $4m of compensatory damages already awarded. The judge declined to “get in the away” of plaintiff’s attorney Bankston sharing the cell phone contents with the J6 committee.
For background on the eDiscovery snafus in the merits trial ending in a default judgment, read EDRM Partner, Relativity’s David Horrigan’s Sandy Hook Parents Prevail After Infowars’ Discovery Abuse.
Craig Ball’s highly insightful blog “Ripped from the Headlines: Alex Jones and Inadvertent Waiver” to get his take on it.
Further Legaltech News‘ Isha Marathe wrote a breaking article on it where Mary, Craig and David Cohen of Reed Smith LLP weigh in with their thoughts on “Inadvertent Disclosure in Alex Jones Trial Leaves E-Discovery Experts Flabbergasted“
Now she’ll go her way and I’ll go mine
“Me & Mrs. Jones”, Kenny Gamble, Leon Huff, and Cary Gilbert, originally recorded by Billy Paul
Tomorrow we’ll meet
The same place, the same time