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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?

Ryan M
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SJuan76
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    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 '22 at 08:35
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    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. – Harper - Reinstate Monica Aug 12 '22 at 01:17
  • LegalEagle has a video where he goes over this: https://youtu.be/x-QcbOphxYs?t=780 This specific part starts around 13:00 (linked) – Frodyne Aug 12 '22 at 07:12
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    @Lag Jones Lawyers also promised to send in a correctly cut down file, but did not produce this. – Trish Aug 12 '22 at 07:23

3 Answers3

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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.

Trish
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Lag
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  • 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). – zibadawa timmy Aug 11 '22 at 10:18
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    @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: https://txpd.org/ethics-articles/the-ethics-of-the-inadvertent-disclosure-of-privileged-documents/ (Incidentally, P had no obligation to inform D.) – Lag Aug 11 '22 at 11:53
  • Just checking if I get this right: The let's say 90% of emails that were neither responsive nor privileged (like most of the 10,000 emails on my Mac) and that were sent by mistake would be freely accessible to plaintiffs, with nothing Jones' lawyers could do? – gnasher729 Aug 11 '22 at 15:24
  • @gnasher729 My understanding is that is the case in Texas (assuming Jones's lawyers cannot get a court to rule differently). – Lag Aug 11 '22 at 16:24
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    @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-don't-feed-the-AI Aug 11 '22 at 16:32
  • Although it would be extremely difficult to go through 300 gigabytes of data and flag every single privileged thing in it, in ten days, while also defending your client in an ongoing trial. The judge had absolutely no sympathy left for Alex Jones or his lawyer. (I wonder why.) – Davislor Aug 11 '22 at 23:08
  • Although, really, when Reynal didn’t object to the plaintiffs using that against his client on the stand, it was all over. Everybody heard about this. The damage was done. There’s no way his reputation or his client’s will ever recover. – Davislor Aug 11 '22 at 23:11
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    @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 '22 at 07:15
  • In this case, the Timing is extremely relevant: 10 days. They let more than 30 go by and then in court were given their serving. – Trish Aug 12 '22 at 07:18
  • @Frodyne Still, you would think Reynal might’ve at least tried to assert, “That link is protected by attorney-client privilege, work product, confidential medical records, a court protective order,” and then made the other lawyer at least go to the judge and contest it. Even if she was completely out of sympathy and gave him the same line about how, if he’d complied with discovery a year ago, he wouldn’t be in this position, there would be at least a decent chance she’d grant him a reasonable amount of time. Not to even warn the client of just how much was out there, before he took the stand? – Davislor Aug 12 '22 at 07:48
  • @Davislor At this point you have to wonder if it's a deliberate strategy, like they can't win the legal battle but maybe if they make it a circus they can cast enough shade on the proceedings to salvage some PR points for Jones' audience. – AmiralPatate Aug 12 '22 at 08:24
  • @AmiralPatate The only thing I can imagine that's any possible benefit to Jones is that he could tell his audience "see, even my own lawyers were out to get me." No, apply Hanlon's razor. This was bad for Jones in Texas, it will be bad for Jones in the other Sandy Hook cases, and it's plausible it will be bad for Jones in terms of other investigations (e.g. January 6). Also it's bad for his lawyers. – Lag Aug 12 '22 at 08:38
  • @Davislor Yes, I agree (as much as that counts for; not a lawyer). My only point was that the time-critical work burden (sort 300 GB in 10 days) would have been much smaller IF they had complied with discovery to begin with - because then they would have had to sort it all back then, not scramble to do it now. – Frodyne Aug 12 '22 at 08:55
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    @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. – AmiralPatate Aug 12 '22 at 10:09
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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.

Dale M
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  • 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 '22 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. – David Schwartz Aug 11 '22 at 18:01
  • @DavidSchwartz I agree with you - that’s why I said that in my answer – Dale M Aug 11 '22 at 21:18
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    @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! – David Schwartz Aug 11 '22 at 22:18
  • @DavidSchwartz: I think the idea behind that phrasing is "If requested in discovery, you can reasonably ask to not have to provide it and have that be granted by the judge, legally." Discovery is a bit more liquid though - if you wanted to bury your opponent in discovery paperwork, you can absolutely give the huge number of emails that have nothing to do with the case. You probably wouldn't, but you can, if you choose to do so, and if those emails were requested, you would be required to. – Alexander The 1st Aug 12 '22 at 04:28
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    @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.) – David Schwartz Aug 14 '22 at 08:55
  • @DavidSchwartz: My understanding is while you can't go on a fishing expedition, a recipient of a discovery request could maliciously comply with the discovery request and send more than what was asked for in discovery. It's looked down upon to bury the other side in paperwork, but apparently you can try to do it. – Alexander The 1st Aug 14 '22 at 09:23
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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."

Harper - Reinstate Monica
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  • 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 '22 at 04:15
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    @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 '22 at 10:37