I’ve been deep in trial prep the last few days (and ahead of seeing my nerd friends at the Chicago conference, but that doesn’t mean my phone hasn’t been utterly lit up, as happens whenever a lawyer does something dumb on television. From my office, with headphones on, I could hear the collective gasps of my friends as they watched Alex Jones and his lawyer Andino Reynal have a meltdown in real time yesterday.
What happened yesterday (some video here) was, alternately (and with apologies to random social media people who made these comments but I can’t find to credit), an EPR class issue-spotting nightmare, an object lesson in FAFO, and/or a Nerd Conference Eve Present for those of us in the ethics bar.
Anyhow, for those of you who didn’t watch, the Cliffs Notes version is: Alex Jones is a right-wing talk radio host and conspiracy theorist who was sued for defamation by several families of the children who died in Sandy Hook. I will not repeat his comments; they are vile and not relevant. Relevant here, during the discovery phase, he claimed that he did not have relevant text messages or emails and/or could not find them following a reasonable search.
Turns out, he had turned over his cell phone to his defense lawyer, and lo and behold, the phone was full of text messages and emails. Nonetheless, the defense maintained they were gone. And, they [may] have gotten away with it, too, if it weren’t for you meddling kids… I mean, if it weren’t for an inadvertent transmittal of the entire contents of the cell phone to the lawyers for the parents. (Reynal, of course, blames his support staff.)
States have different rules as to what’s supposed to happen when a lawyer accidentally sends something they should not have to someone who shouldn’t have it. In Texas, where this trial is venued, attention has been paid to its rules, which give the party that accidentally disclosed privileged information 10 days to try to claw it back; if that time lapses, privilege is waived.
Well, apparently, the plaintiff’s lawyers let the defense know that they got the phone data, and the defense instructed them “please disregard the link.” I do not know enough about Texas rules to opine intelligently about this, but it is my understanding that “please disregard” is not sufficient to avoid waiver—the producing party needs to be specific about what is privileged.
And here, while there likely were some privileged documents in a data dump spanning years (emails or texts between Jones and his own lawyer, for instance), it is not clear how much of the other stuff would be subject to the clawback rule.
Nonetheless, the 10-day period expired without an effective clawback, and at trial, the plaintiff’s lawyers let Jones know that Reynal screwed up and there were now two years worth of data that contradicted his prior representation that there was none. Jones appeared to have no idea that this data had been provided, and called the reveal a “Perry Mason moment” on the stand.
The Jones team tried to move for a mistrial today, which led some to speculate they actually dumped the data on purpose, which seems just as conspiratorial as some of Jones’ theories for which he was sued, but no matter. The mistrial was denied, and as I’m writing this the penalty phase continues. (Liability was already established.)
So what’s going on here? There is a lot going on here (and that’s even before Reynal decided to close with “First They Came” by Martin Niemöller, which was…a choice, I guess?). As is my wont, I’m looking at this from a “what did the lawyer do and how much trouble is he going to be in for doing it?” perspective. I am sure I am missing a lot, but I am writing this on a train, going backwards relative to how I’m seated. It always ends up that way.
I am going to assume for today’s purposes that the lawyer, or a member of his staff, accidentally produced the phone data without his client’s permission or knowledge. I will save the conspiracies for another day. But this means that the lawyer knew, or should have known, that Jones was full of it when he said there were no relevant text messages. Even bending over backwards to give the benefit of the doubt to Jones—i.e. that he searched his phone and came up empty—the lawyer should have found all of these texts on review.
So then what? The lawyer had a duty to cough them up in discovery, or make a reasonable objection. He didn’t. Then, on the eve of trial, someone in his office puts the data in a drop box.
Inadvertent disclosure is not, in itself, always a violation of the ethical rules; I think the rules acknowledge that lawyers screw this up all the time. (Who hasn’t Replied All when Reply will do? Who hasn’t misdirected an email to Jon Smith because auto-fill helpfully decided that Jon Smalls should have gotten it instead?) Sure, if there were no safeguards in place to ensure this did not happen, or the assistant wasn’t adequately trained, that could be a violation.
But what happens next is key—the Jones team was notified of the transmission and acknowledged the notification. If the Jones team did not appropriately claw back information they were entitled to claw back, or timely go to the court for relief, that could be a competency and/or a diligence issue.
To me, the biggest problem here (aside from the whole lying thing, which we’ll get to in a moment) is that it appears that nobody told Jones that his data had been compromised, until he was confronted about it on the stand. Litigate long enough, and you see a witness with an “oh crap” realization. You never, ever want that to be your client. You don’t want that to be you. (Attorney Reynal, please contact your malpractice carrier.)
Lawyers have a duty to tell their clients about developments in their cases, so that clients can make informed decisions about how to proceed with their cases. Not all mistakes need to be disclosed—an immaterial typo can go unremarked—but major ones, absolutely. And this was a major mistake. And yes, I know those conversations with your clients are not fun. And “hey, Alex? You know that phone full of text messages that you said don’t exist? And you know how you sent it to me for my eyes only? Well I kinda sorta sent it to opposing counsel and then I didn’t do anything to make it better and they’re totally gonna cross examine you about it tomorrow oops my bad?” is now how his lawyer wanted to end his day, I’m sure. But it should have been said.
Finally, candor and truthfulness. Lots of meaty law school exam/ethics nerd conference fodder here. But anyway, lawyers can’t put their clients on the stand if they know they’re going to lie, and if they end up lying, lawyers have to take remedial measures—including breaking confidentiality and alerting the court, if necessary. None of this happened. Jones got up there and was a deer in headlights. We already knew he was going to end up owing money to these families (and their lawyer has asked for $150 million); we don’t know whether this comedy of errors will make any difference in the amount given the parade of horribles that proceeded it. So, we don’t know where this will end up, malpractice-wise (and, as my 19-year-old stepson perceptively pointed out, any verdict in favor of Jones would probably go to satisfy his many, many creditors, including the Sandy Hook families).
But ethically this is a mess. Which means we will have a lot of fun dissecting this at the APRL conference, with people whose phones also lit up yesterday.