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CNN reports on Alex Jones's case regarding Sandy Hook as follows:

Jones, who was the sole witness for the defense during the trial, did not fare well Wednesday as he was cross-examined by the plaintiffs' attorney, Mark Bankston.

In a remarkable moment, Bankston disclosed to Jones and the court that he had recently acquired evidence proving Jones had lied when he claimed during the discovery process that he had never texted about the 2012 Sandy Hook shooting.

Bankston said that Jones' attorney had, in an apparent mishap, sent him two years of cell phone records that included every text message Jones had sent.
Oliver Darcy, Sandy Hook family attorney exposes Alex Jones' dishonesty during brutal cross-examination, CNN, 3 Aug 2022.

I could be completely wrong, but my understanding is that, during discovery, Jones's attorney is (probably) required by law to hand over the cell phone records. Thus CNN's phrasing "an apparent mishap" seems bizarre to me: Jones's attorney was just obeying the law.

Question: Was Alex Jones's attorney handing over phone-record evidence a "mishap" or required by law?

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    The mishap was "included every text message defendant had sent". There's supposed to be a distinction between messages responsive to the discovery request and those non-responsive.
    – Ben Voigt
    Aug 4 at 14:58
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    To answer just the title: "Yes." He was legally required to hand over texts, but the whole reason for this trial is he has frequently not done as required. Therefore it's likely this really was a mishap. Both are probably true. Aug 4 at 21:46
  • Further to @JoelCoehoorn's comment, it appears that in this case it was required by law but the intention had been not to comply with the requirement.
    – phoog
    Aug 6 at 17:14

1 Answer 1

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Was Alex Jones's attorney handing over phone-record evidence a "mishap" or required by law?

  1. The discovery phase, which concluded before the trial began, required Alex Jones to provide texts and emails mentioning Sandy Hook (among other things). He did not provide any and testified in writing and in court he could find none.

  2. On August 3rd 2022, day seven of the trial, plaintiffs' attorney Mark Bankston claimed he had obtained from Jones's attorneys a digital copy of Jones's cellphone on which there were texts and emails that mentioned Sandy Hook. He said this copy was mistakenly provided to him. Whether accidental or deliberate, this copy or its texts and emails mentioning Sandy Hook were not provided during discovery. Judge Gamble told the jury about the digital copy, "we don't know whether it was on accident or on purpose... but what we do know is that it wasn't properly turned over when it should have been." https://youtu.be/qhtz_6JKSh8?t=7658

A video clip of the part of the hearing in question, when Bankston begins asking Jones about the texts. https://www.youtube.com/watch?v=tpnSCIak5A8. Or this timestamp in a longer clip https://youtu.be/qhtz_6JKSh8?t=6821.

Mark Bankston for the plaintiffs, addressing Jones:

"Your attorneys messed up and sent me a digital copy of your entire cellphone, with every text message you sent for the past two years. And, when informed, did not take any steps to identify it as privileged or protected in any way, and as of two days ago it fell free and clear into my possession. And that is how I know you lied to me when you said you didn't have text messages about Sandy Hook."

The above quote begins 5mins into the first clip or this timestamp in the longer clip https://youtu.be/qhtz_6JKSh8?t=6830).

After the texts, Bankston asked questions about emails not being turned over... Jones had sworn he didn't even use email. Bankston showed him emails that appeared to be written by Jones. "I must have dictated them" said Jones.

Judge Gamble told the jury about the digital copy, "we don't know it was on accident or on purpose, but what we do know is it wasn't properly turned over when it should have been." https://youtu.be/qhtz_6JKSh8?t=7665

Bankston told journalist Dan Solomon the phone copy was put in a Dropbox the parties were using to exchange materials. Bankston did not believe it was put there deliberately and notified Jones's attorneys. Apparently Jones's attorneys did not respond. Under Texas law they had ten days to assert privilege or say the material was put there by mistake, Rule 193.3(d) - as of August 3rd Bankston was legally free to read and use the material.

(There is some gossip online about what was supposedly heard on 'hot mic' between Reynal and Bankston, I haven't heard it myself and have no timestamps or clips. I do think I heard Jones, after leaving the witness box, ask Reynal "they got my text messages?")

[edit]

Incidentally, this isn't the first time that Jones / his attorneys failed to comply with discovery orders in relation to these Sandy Hook cases - a number of sanctions and default judgements have gone against him for that.

Indeed this damages phase is the result of the default judgment against him in September 2021 for failing to comply with discovery:

"The Court find that Defendants unreasonably and vexatiously failed to comply with their discovery duties. The Court finds that Defendants' failure to comply with discovery in this case is greatly aggravated by Defendants' consistent pattern of discovery abuse throughout the other similar cases pending before this Court."

[edit 2]

On August 4th 2022 Jones's attorneys have filed an emergency motion that seems to settle the issue of whether the provision of all the material was a "mishap": they say it was "inadvertently" supplied.

text of the motion

They claim they promptly informed plaintiffs' attorneys about the mistake but the latter used the material anyway in violation of privilege, procedure and the court's protective order. Now Twitter lawyers are arguing about whether the language used by the defence was adequate to engage the rules mentioned above.

But this doesn't seem to resolve the issue of why the material demanded for discovery was not supplied for discovery or why Jones testifed he could not find such material.

Judge Gamble denied the request for a blanket protective order to seal the record of the text messages and denied the motion for mistrial. https://www.youtube.com/watch?v=dKbAmNwbiMk

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    So the contention is that they tried to hide evidence, but screwed up and accidentally disclosed it later?
    – Barmar
    Aug 4 at 14:43
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    @Barmar It's a couple of things: Failing to provide the relevant records during discovery, and Jones then testifying that those relevant records never existed. Aug 4 at 14:50
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    @jeffronicus I suppose, although they seem like two sides of the same coin -- if you're going to deny their existence, of course you won't turn them over.
    – Barmar
    Aug 4 at 14:53
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    @JosephP. That is called spoliation, and if discovered the penalties can be much greater than just adverse inference. In many cases even criminal. There are ways that it can be deduced, one of the most common is the side receiving the documents already knows in advance specific documents that should be produced based on independent production. For example, they have received a relevant e-mail from the recipient, but the sender didn't produce it. Or a document in their possession makes reference to other documents that were not produced.
    – Chuu
    Aug 4 at 18:33
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    @nick012000 I understand that having notified the defense of the potential error means that proper procedures were followed. If the defense failed to do anything to correct or limit the matter, or failed to inform their client, that's on them and them alone. Defense has filed a motion asserting they did do this, but it was ignored. Whether the judge was aware of any of this before this moment in court, I don't know for certain. A separate Q&A about this would probably be warranted and good. Aug 5 at 3:46

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