15

As I understand it from the news and some blogs:

  1. Alex Jones and his lawyers were asked during discovery to provide any message from his cellphone that did mention the Sandy Hook massacre. He claimed he did not have any and he did not produce any.
  2. Then his lawyer provided the plaintiffs' lawyer with some electronic documents. But it seems that he botched it and gave way more information than he intended to.
  3. The plaintiffs' lawyer warned Jones' lawyer about that. Jones' lawyer had ten days to formally acknowledge the transfer was a mistake, and to ask the plaintiffs' lawyer to ignore and delete the data.
  4. Jones' lawyer failed to do anything. Ten days after the error was notified to Jones' lawyer, and due to the lack of answer, the plaintiffs' lawyer was entitled to use all that was provided to him.
  5. That data included the record from Jones' phone, showing that he had messages related to the Sandy Hook massacre that he had failed to disclose.

My question is: if the plaintiffs' lawyer had noticed those messages (that should have been delivered to him more than a year ago), could he have kept them and used them in trial even if Jones' lawyer had requested him to delete the data transferred to him? Or would a request from Jones' lawyer have prevented him from doing that?

4
  • 3
    Point 4 is not quite correct. Jones's lawyer asked plaintiffs' counsel to disregard the material. But he did not assert confidentiality or privilege.
    – Lag
    Aug 11 at 8:35
  • 3
    Agreed, Jones' lawyer did ask, but informally — expecting to get that as a professional courtesy or something, and failed to file the proper paperwork timely. That said, certain things are privileged anyway, such as attorney client communication, and that isn't undone by the filing error. Aug 12 at 1:17
  • LegalEagle has a video where he goes over this: youtu.be/x-QcbOphxYs?t=780 This specific part starts around 13:00 (linked)
    – Frodyne
    Aug 12 at 7:12
  • 1
    @Lag Jones Lawyers also promised to send in a correctly cut down file, but did not produce this.
    – Trish
    Aug 12 at 7:23

3 Answers 3

15

This is a civil case in Texas.

See Texas Rules of Civil Procedure, Rule 193.3(d) and guidance. In the current PDF May 1 2022 those are on pages 199 and 121 respectively and I reproduce them below.

My understanding is that defense counsel (D) could have asserted privilege when Plaintiffs' counsel (P) originally told him about the link. In doing so, D would have identified the inadvertently produced material and the privilege asserted.

Then P would be obliged to promptly return (or delete as it's digital) that material and any copies. Inevitably in this case P would object to the claim of privilege over any material potentially or apparently 'responsive' to discovery (e.g. a folder called "digital copy of defendant's phone" or texts mentioning keywords). The judge would hear from both parties and make a ruling on the material.

In reality, D did not do that.

Also, D made no contemporaneous objections to P's request to admit particular material in court (note P did not request the admission of the entire trove, only particular pieces of it).

Instead, the day after the "Perry Mason moment", D filed an 'emergency motion of protection' and a request for a mistrial. The judge denied both. D asked for another ten days to review the material. The judge said no to ten days but said D could have a D a day to make a start and then they could discuss whether more were needed. She said she would not make a blanket protection order over the entire trove without knowledge of what was in it.

hearing here https://www.youtube.com/watch?v=dKbAmNwbiMk

Incidentally, P claimed there was an earlier inadvertent production of some other material and in relation to that material rule 193.3(d) was followed by both parties. (from 7mins in that clip.)


Texas Rules of Civil Procedure

193.3(d) Privilege not waived by production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if - within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made - the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, any party who has obtained the specific material or information must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.

(guidance)

  1. Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. The provision is commonly used in complex cases to reduce costs and risks in large document Page 122 productions. The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege. This rule is thus broader than Tex. R. Evid. 511 and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992), to the extent the two conflict. The ten-day period (which may be shortened by the court) allowed for an amended response does not run from the production of the material or information but from the party’s first awareness of the mistake. To avoid complications at trial, a party may identify prior to trial the documents intended to be offered, thereby triggering the obligation to assert any overlooked privilege under this rule. A trial court may also order this procedure.

  2. This rule imposes no duty to supplement or amend deposition testimony. The only duty to supplement deposition testimony is provided in Rule 195.6.

  3. Any party can request a hearing in which the court will resolve issues brought up in objections or withholding statements. The party seeking to avoid discovery has the burden of proving the objection or privilege.

14
  • As you comment on the OP, "Jones's lawyer asked plaintiffs' counsel to disregard the material. But he did not assert confidentiality or privilege." I take it this means that the assertion of confidentiality/privilege must be explicit and particular, rather than the vaguer/implicit "disregard; will send corrected batch" used by Jones's lawyer? Because evidently that was not considered enough to qualify for a clawback here, and I'm curious why that's so (particularly if it still feels on-topic to your answer). Aug 11 at 10:18
  • 1
    @zibadawatimmy That is my understanding. The producing party must specify which of the material is privileged and how/why it is privileged. In this case D argued that his message to disregard should have been sufficient while P argued that D should have been explicit and specific. The judge ruled against D's blanket request but did offer him an opportunity to be specific. Here is some discussion of previous cases: txpd.org/ethics-articles/… (Incidentally, P had no obligation to inform D.)
    – Lag
    Aug 11 at 11:53
  • 7
    @gnasher729 This is why it's so important for the defense to go through that data, sort out whatever is relevant, and either flag it privileged or add it to the pile of stuff that gets supplied to the plaintiff. That's what they should have done -- but gross incompetence or negligence on part of the defense is not the plaintiff's problem. It may be grounds for a malpractice case for the defendant against his counsel but that's a different case entirely.
    – Shadur
    Aug 11 at 16:32
  • 2
    @Davislor True, going over 300 gigabytes of documents in 10 days is pretty hard. But if they had actually complied with discovery, then the majority of that work would already have been done... Which probably is another reason that the judge has no sympathy left.
    – Frodyne
    Aug 12 at 7:15
  • 1
    @Lag I do think you're right rationally, and perhaps there's some poetic irony that I'm having trouble imagining there's zero malice to his and his team's incompetence. Aug 12 at 10:09
6

He can recall anything that has privilege or is a medical record

Basically, the things you don’t have to produce in discovery. Anything that should have been produced can’t be clawed back. However, anything that is irrelevant and therefore not subject to discovery (e.g. most of the phone’s contents are presumably not relevant) but not privileged is unable to be clawed back.

Watch this space: it’s quite likely that lawyer will be needing careers advice.

7
  • I assume there was a small percentage of emails about Sandy Hook, a small percentage of emails that were privileged, and a huge number of emails that had nothing to do with the case. I guess plaintiff's lawyer now has the right to read all the emails except the privileged ones? And tell for example other plaintiffs in other cases against Alex Jones what they found?
    – gnasher729
    Aug 11 at 15:15
  • On what grounds can you claw back material that isn't privileged? I don't see any provision under Texas law or precedent that permits a litigant to claw back material inadvertently produced if that material isn't privileged. Merely having had no obligation to provide it doesn't seem to be enough. Aug 11 at 18:01
  • @DavidSchwartz I agree with you - that’s why I said that in my answer
    – Dale M
    Aug 11 at 21:18
  • 3
    @DaleM But that's not what you said in your answer. For example, you said, "Basically, the things you don’t have to produce in discovery." But that's not true. If there was something that you don't have to produce in discovery that wasn't privileged, you could not recall it. For example, consider many of the documents at issue here. They're not relevant to this case, so you do not have to produce them in discovery. But they're not privileged, so you can't recall them. And they may be very relevant to other cases! Aug 11 at 22:18
  • 1
    @AlexanderThe1st They have to demonstrate relevance to get discovery. The rules for what you can get in discovery are fairly broad, but you can't go on a fishing expedition. You absolutely cannot get something just by showing it exists and isn't privileged. Similarly, an argument that production would be extremely burdensome or costly can defeat a weak relevance argument. Courts balance these factors. See, for example, Bridgestone/Firestone v. Rios. (The plaintiffs in this case could never have gotten an order to turn over an image of Jones' phone, even with privileged items to be removed.) Aug 14 at 8:55
0

There's another element to this. Most of this is summarizing Steve Lehto's video on the subject.

Defendant's lawyer was already in a jam.

Previously, plaintiff had demanded all text messages relating to Sandy Hook. Defendant said "None exist" and Defendant's lawyer made that statement to the plaintiff.

Then, Defendant give the phone in question to the lawyer. The lawyer found out they do exist. Now what? (time: 22:16)

This difference may be lost on defendants, but the court (judge, clerk, bailiff) are a completely different party than the plaintiff or prosecutor. The court is simply the venue: the house of debate. They are neutral.

A lawyer is an officer of the court, and the duty to the court arguably exceeds their duty to their client. These are the rules of professional conduct.

Rule 3.03 Candor Toward the Tribunal

  • (a) A lawyer shall not knowingly:
    • (1) make a false statement of material fact or law to a tribunal;
    • (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
      ...
  • (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

If you want to hear Steve Lehto read this almost verbatim (from Michigan's rules), it is here. (time: 24:31)

So, the lawyer was in a deep predicament between loyalty to the client and professional conduct to the court.

And now, the lawyer is not.

The accidental dump had the side-effect of mooting the lawyer's predicament.

Steve covers this a little bit, but my thought also is "Well, well. Isn't that convenient."

2
  • This is more about potential sanctions or discipline Mr Jones' attorney might face but I don't see how it answers the question asked.
    – Michael
    Aug 12 at 4:15
  • 1
    @Michael: It seems to me that this is an answer. Summarized: "No, Mr Jones' attorney cannot claim the data back, because of his duty to the court"
    – MSalters
    Aug 12 at 10:37

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