Last month, right wing American provocateur Alex Jones was ordered to pay nearly $50 million dollars in damages to the parents of a child who died in the Sandy Hook Elementary School shooting, after he repeated false claims that the tragedy was a hoax. As he was being cross-examined, Jones learned his legal team had inadvertently sent the plaintiffs’ attorneys a full copy of his mobile phone data, including text messages from the last two years. The January 6 Select Committee has since requested and received these text messages from plaintiffs’ counsel over Jones’ objections. This article will explore two key questions at the center of this headline: (1) why were Alex Jones’ text messages admissible?; and (2) why was the counsel allowed to share these messages with the January 6 Select Committee?
The unintentional production of privileged or otherwise confidential material can be incredibly damaging to a case. As such, most states provide safeguards that allow for clawbacks to retrieve the unintentionally produced materials. Under Texas civil procedure, Mr. Jones’ legal team had 10 days to request return of the produced iPhone data. Despite notice from plaintiffs’ counsel, Mr. Jones’ legal team failed to request the return of this data, which is how Alex Jones found himself being alerted to the production of two years’ worth of text messages by plaintiffs’ counsel Mark Blankenship mid cross-examination. Mr. Jones had repeatedly represented that he had no text messages that mentioned Sandy Hook, falsely insisting that he had complied with requests for production to the best of his ability. The inadvertent production of the text messages showed these statements to be false. To make matters worse for Mr. Jones, his attorneys failed to object to the offering of this information during cross examination, perhaps missing Jones’ last opportunity to block admission or preserve for appeal.
Mr. Jones’ bad luck had not come to an end yet. The January 6 Select Committee sought to review his inadvertently produced texts as a part of their investigation into the January 6th, 2021 attack on the US Capitol. Mr. Jones stonewalled the January 6 Committee’s attempts to obtain information earlier this year with repeated Fifth Amendment assertions in a closed-door deposition. Hoping Jones’ two years of texts would prove more fruitful than his testimony, the January 6 Committee reached out to Mark Bankston, attorney for the plaintiffs, inquiring about the text messages. After Judge Maya Guerra Gamble refused Jones’ legal team’s request to order Mr. Bankston to destroy and not transmit the texts, Mr. Bankston transmitted the texts in cooperation with the January 6 Committee, stating “I’m not standing between you and Congress.”
If Mr. Jones’ counsel managed to avoid inadvertent production, or had they responded to notification of inadvertent production and requested return of the documents during the clawback period, or even objected to their offering during cross examination, Mr. Jones likely could have avoided the transmission of these texts to the January 6 Committee.
Avoiding Discovery Pitfalls
Discovery can be a nuanced and burdensome process; therefore, ethical discovery practice requires both procedural and technological competence. Errors like inadvertent production can easily be avoided by partnering with experienced discovery advisors and using trusted discovery tools like Rational Review to organize and produce data.