Thursday, August 4, 2022

Alex Jones trial offers a teachable moment on the issue of "inadvertent disclosure”

Suppose you're sitting in your office and your associate excitedly runs in, yelling, "We got 'em! The other side just sent us the entire contents of their client's cell phone, and oh boy are there some smoking guns!"

This exact issue just played out in an Austin, Texas, courtroom in the defamation trial between online conspiracy theorist Alex Jones and the parents of a 6-year-old killed in the Sandy Hook school shooting suing him for lying that the attack was a hoax. The parents had requested in discovery that Jones turn over all emails and text messages related to the shooting. Jones claimed that none existed because he doesn't email or text. Then 12 days ago his lawyer accidentally sent the entire contents of Jones's cell phone to the parents' attorneys.

What happened next would seem laughable if it unfolded during a prime-time legal drama. Indeed, in the immediate aftermath of these events unfolding in court, a former writer for Law & Order tweeted that they "wouldn't have let a lawyer do something that dumb." And yet it actually happened yesterday in an actual courtroom.

"Your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you've sent for the past two years. And when informed they did not take any steps to identify it as privileged.… And that is how I know you lied to me about not having any text messages about Sandy Hook."

Some of the messages on Jones's phone were responsive to discovery requests and should have been turned over in discovery. Other contents of his phone were messages between him an his attorneys and could have been shielded from disclosure by the attorney-client privilege. So how do the parents' lawyers get to keep and use all of the messages? Let's turn to the rules of evidence for the answer.

If this case was in federal court, Evidence Rule 502 — which applies to the "inadvertent disclosure" of evidence — would govern. That rule provides that privilege is not waived if:
  1. the disclosure is inadvertent;
  2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
  3. the holder promptly took reasonable steps to rectify the error.
The Alex Jones case is in Texas state court, the evidence rules of which give the disclosing party 10 days to respond to a notice of inadvertent disclosure, after which the privilege is deemed waived. Further, there are ethical rules (and do vary state to state) that govern an attorney's obligations upon receiving documents that reasonably appear to be inadvertently disclosed. The common thread is that they attorney notify the other side and refrain from any review until it is determined whether the disclosure was inadvertent or intentional.

What happens now in the Alex Jones case? The jury is deliberating and we should expect it to return a verdict large enough to bankrupt Jones. We should also expect a criminal refer for Jones's apparent perjury, plus additional problems for his attorneys for their apparent misconduct in not disclosing Jones's phone earlier. 

In the meantime, we should all thank Jones and his legal team for providing us a legit teachable moment on the issue of inadvertent disclosure. Be like the parents' lawyers. When receiving an inadvertent disclosure, stop reading as soon as you think you shouldn't have been sent the documents, notify the other side, and wait until the issue is sorted out (which will include destroying the documents upon confirmation of an inadvertent disclosure). And if you're the disclosing party, don't act like Jones's lawyers. You can't ignore the disclosure, or at least you can't ignore it and meet your ethical obligations to your client.