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ANALYSIS: Five Tips to Avoid Doing Discovery the Alex Jones Way

Aug. 16, 2022, 9:00 AM

The damages portion of Alex Jones’s Texas defamation trial concluded Aug. 5 with the jury awarding the parents of one of the Sandy Hook Elementary School shooting victims over $45 million in compensatory and punitive damages.

But what may be more damaging to Jones and his lead Texas attorney, Andino Reynal, is the several hundred gigabytes of material mistakenly sent to Mark Bankston, the lawyer for the parents, in the days before trial.

No matter the sophistication level of a firm or lawyer, inadvertent disclosures of protected information can happen, particularly with the growing number of electronically stored data produced during discovery. If you are concerned about inadvertent disclosure of protected information, this analysis offers some best practices to employ.

The Explosive Trial

Alex Jones’s first defamation trial in Austin, Texas, provided a lot of explosive revelations. A default judgment was entered against Jones preliminarily. Later, Jones admitted that the Sandy Hook shooting was “100% real” and that it was irresponsible of him to say otherwise.

But the most explosive revelation came on Aug. 3, when Bankston revealed during his cross-examination of Jones that 12 days prior, Reynal mistakenly produced a large number of files to Bankston.

Alarmingly, the files included attorney-client privileged communications, health records of plaintiffs not a party to the case, and records that may not have been relevant to the case, but could be pertinent to the January 6th committee’s investigation, including communications between Jones and Roger Stone.

The following day, Aug. 4, Reynal filed an emergency motion for a protective order, in which he also sought a mistrial. During the hearing that same day, Reynal acknowledged that the files were inadvertently sent to Bankston a few days before trial. It is worth noting that the files were sent after the close of discovery, despite earlier requests for relevant emails and text messages. Jones even testified at his deposition that he did not have any text messages about the Sandy Hook shooting, contrary to the recent production.

Reynal stated during the hearing that shortly after receipt of the production, Bankston alerted him by email of the inadvertent disclosure. Reynal replied that the files were indeed “sent in error,” and asked Bankston to “please disregard the link,” and that he “will work on preparing a new one.”

Apparently, no new link was sent, and there was no courtesy follow up by Bankston.

According to Bankston, Reynal did not make any attempts to comply with Texas Rule of Civil Procedure 193.3(d), which sets forth the procedure for clawing back (or in Texas, “snapping back”) an inadvertent disclosure of privileged material. The rule requires Reynal to amend the response, identify the material or information produced, and state the privilege asserted within 10 days of production.

At the conclusion of the 10-day period, Bankston seized the documents and cross-examined Jones with the text messages produced as part of the inadvertent disclosure. In an unusual declaration about discovery during cross-examination, Bankston alerted the courtroom that Reynal “messed up” by producing the documents, and did not take any steps to identify it as privileged or protected.

You could hear a pin drop in the courtroom, but what you did not hear was an objection or request for sidebar by Reynal.

Any litigator watching this exchange and subsequent hearing would have chills running down their spine. It was the playout of a nightmare scenario for many lawyers. The incident carries unprecedented implications not just for Reynal and Jones, but for the plaintiffs, attorneys, and judges in the rest of Jones’s trials—not to mention the January 6 committee, Roger Stone, and any number of individuals who exchanged text messages with Jones in the disclosed eight-month period.

A hearing is scheduled for Aug. 17 in Connecticut where Reynal and another one of Jones’s attorneys, Norman Pattis, are ordered to show cause as to whether they should be referred to disciplinary authorities for the “purported release of medical records of the plaintiffs,” in violation of state and federal laws and the court’s protective order.

Practice Tips to Remember

This epic discovery blunder provides an opportunity to remind litigators of the following five practice tips.

1. File a stipulated protective order.

Regardless of how big or small your case is, make sure you have a robust protective order in place at the outset of discovery. An agreed-to protective order governs how the parties will manage confidential information produced during the litigation. It can also set limitations on who can see the confidential information, and through what procedures it can be used in a motion, deposition, and/or court proceeding.

2. Request a Rule 502(d) order.

To avoid waiver of privilege, it is prudent to request a Federal Rule of Evidence 502(d) order or your state’s equivalent before discovery begins. In doing so, the parties agree that the production of privileged or work-product protected documents, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery. The order typically sets out procedures for identifying and sequestering the protected documents, while maintaining the right to challenge the proclaimed protected nature of the documents.

3. Respond to discovery requests appropriately.

Not only is this proper, but it also helps parties deal with discovery disputes in a timely manner before trial and outside the presence of the jury. A judge will be much more receptive to a motion for a protective order concerning an inadvertent disclosure during discovery than during trial, when the cat’s already out of the bag.

4. Know your court’s rules and know them well.

Reynal may have “messed up” by mistakenly producing too many documents, but he had an opportunity to remedy the inadvertent disclosure by following the rule. Instead, he seemingly ignored the rule, and relied on just an email to Bankston to disregard the link, which did not hold water in court.

5. Check yourself, before you wreck your client.

It goes without saying that you should not make a wholesale production of your client’s documents without first reviewing them, particularly if you are supervising the work of other lawyers and non-lawyers. If the type and volume of documents exceeds your capabilities, seek help through other attorneys and/or vendors. Rule 1.1 of the ABA Model Rules of Professional Conduct provides that “a lawyer shall provide competent representation to a client, which requires that the lawyer maintain legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This includes keeping abreast of changes in the law and its practice, such as the benefits and risks associated with relevant technology. If you do learn of an inadvertent disclosure, act quickly to claw back (or snap back, if you’re in Texas) those protected documents. The longer you wait, the less inadvertent the production may seem to the court and opposing counsel.

Lastly, be very careful before accusing your opposing counsel of legal malpractice before the court (and a limitless audience). It is a serious allegation that can have serious consequences for an attorney and their practice, especially if you are wrong.

Bloomberg Law subscribers can find related content on our Advanced Dockets Search, and our Litigation Practical Guidance Library page.

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