An attorney once said that cases are truly won and lost in discovery, not at trial. Perhaps that saying should be updated to reflect eDiscovery.
A pertinent example is what happened with Alex Jones of InfoWars. He was battling against defamation suits brought by the parents of children slain at Sandy Hook. During the discovery phase, his attorneys somehow handed over a copy of his cell phone to opposing counsel, which contained two years’ worth of unredacted text messages.
Any eDiscovery professional would feel a thrill of terror over such a mistake being made. It’s one thing, as Wired points out, to accidentally exchange privileged information during the process of discovery. It’s another thing entirely to offer up your client’s data on a silver platter, because — to add one more analogy here — there’s no un-ringing that bell. Opposing counsel let Jones perjure himself multiple times under oath for 12 days before making the grand reveal and having, as Jones said, his “Perry Mason moment.”
Alex Jones, seconds after being told that his lawyer mistakenly send a huge cache of texts to Sandy Hook families’ attorney:
“This is your Perry Mason moment” pic.twitter.com/f6byn6N6VA
— Bill Grueskin (@BGrueskin) August 3, 2022
What does this have to do with eDiscovery? Well, everything. Industry expert Craig Ball boiled it down: “At some point on or before Friday, July 22, 2022, defense counsel supplemented discovery responses in such a way that two years of Jones’ cell phone messages were produced. How? No clue! Perhaps by placing it into a production ‘drop box’ repository hosted online? The method of production doesn’t matter, and the form of production is unhelpfully characterized as ‘digital;’ even the time of production isn’t critical. What matters most is when did defense counsel discover privileged information was produced and what did he do about it?”
Plaintiff’s counsel had to wait a certain number of days before utilizing this bombshell information under inadvertent disclosure provisions and even stated in an email, “My assumption is now that you did not intend to send us this? Let me know if I am correct.”
Defense counsel said in reply, “Thank you Mark. There appears to have been a mistake in the file transfer…. Please disregard the link and I will work on resending.”
There are rules in place to protect against inadvertent disclosure, especially for privileged information. However, the attorney needs to take reasonable steps to fix the disclosure, and those steps weren’t taken in this case for whatever reason (though an emergency motion was filed on August 4, 2022). Arguments can be made claiming that the “mistake” in the file transfer was enough to flag it as privileged information, as well as the directive to “disregard the link,” but that’s a long stretch, and it does not appear that any updated link was provided that had been scrubbed of privileged material. After the waiting period, plaintiff’s counsel was able to use the information on the cell phone free and clear.
When Jones’ obstruction came to light, the judge determined that “Jones’ discovery misconduct was so egregious, it compelled [her Honor] to enter a default judgment on liability. Hence, the ongoing case determines only compensatory and punitive damages.”
That meant there was no contest as to whether Jones was liable; he was, and all that remained was how liable. How much should the plaintiffs be compensated, and how much should the defendant be punished? As Ball noted, “the Austin, Texas jury returned a compensatory damages verdict of $4.1 million dollars, and … assessed punitive damages of $45.2 million.” However, Ball also made sure to comment that the damages phase of the trial might need to be retried specifically because of that “Perry Mason moment.” In Texas, trial judges are the ones to determine, “as a matter of law … whether spoliation has occurred and what sanctions to impose. Evidence of spoliating conduct is inadmissible in Texas.” This means that the jury wasn’t supposed to get the dirty details of Jones’ cell phone in the dramatic fashion that they did, and that camera-ready moment could come at the cost of a retrial.
Furthermore, Jones has decried the default judgment and claimed there were “tens of thousands of documents,” saying that “Judge Gamble had committed a ‘blatant abuse of discretion’ in issuing the default judgment when the cases are pending before the U.S. Supreme Court, where Jones and his fellow defendants are seeking review of the Texas Supreme Court’s denial of their motion to dismiss.” As the Relativity blog noted, “should [Jones’] case be thrown out of court for discovery violations when they did produce a lot of data? We should note that Judge Gamble ruled the production ‘[did] not satisfy Defendants’ outstanding obligations.'”
There’s another legal maxim that says bad cases make worse law. If something like this can happen to Alex Jones, it can happen in any case, to anybody. That’s why you need a knowledgeable eDiscovery team, but it’s necessary to point out that this was an attorney’s mistake. This comes down to lawyers needing to understand eDiscovery and computers in a way they currently do not. This likely wasn’t a tired lawyer accidentally copying a file into the wrong DropBox folder; this was an attorney who’d been notified of his mistake and still didn’t comprehend what he’d done and the damage he’d caused. Those texts are now in the hands of the January 6 committee.
Leaving collections of cell phone data and dissemination to the professionals could have meant avoiding this scenario entirely. Talk to an expert today to see how we can help your next case.
