I reserve this space for topics I’ve mulled over carefully in hopes that, even if I’m late to the party, at least I’ll be properly dressed. But yesterday, the media covering the Alex Jones defamation damages trial in Austin lit up with the news that Jones’ counsel inadvertently produced privileged mobile text messages and failed to seek their return in time to prevent waiver of privilege. The “inadvertently” produced messages reveal that (SPOILER ALERT!) Jones is a discovery-obstructing, lying scumbag.
That’s not political commentary; that’s the key fact finding of the Court during the liability phase of the case (“scumbag” is synopsis, implicit but unstated by Her Honor). Jones’ discovery misconduct was so egregious, it compelled the judge to enter a default judgment on liability. Hence, the ongoing case determines only compensatory and punitive damages.
Wow! Seamy Texas headlines in my wheelhouse of e-discovery and digital evidence! Got to love that! I write (hastily) to explore the applicable Texas rules as well as to parse—admittedly on skeletal information–what seems to have transpired and what it signifies.
To begin, Alex Jones is a 48-year-old, right-wing conspiracy theorist broadcasting rants and raves to millions of listeners who get off on the garbage he spews. Jones and his InfoWars entities were sued for defamation arising from such vile acts as claiming that the murder of 20 six- and seven-year-old children at Sandy Hook Elementary School was a hoax and “false flag.” So, he’s a horrible person, but the legal and factual issues don’t change because a party is a horrible person; horrible people are why we need courts and lawyers.
On August 3, 2022, Jones was on the stand under cross-examination when plaintiffs’ lawyer Mark Bankston asked:
“Mr. Jones, did you know that 12 days ago, 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, did not take any steps to identify it as privileged or protect it any way, and as of two days ago, it fell free and clear into my possession and that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook. Did you know that?”
Jones previously testified he’d searched his phone for texts about Sandy Hook and found none.
Consider five elements of the question, because all go to the question of whether privileged communications produced in error may be used by counsel:
- “12 days ago”
- “your attorneys messed up”
- “sent me…every text message you’ve sent for the past two years.”
- “when informed, did not take any steps to identify it as privileged or protect it any way”
- “as of two days ago, it fell free and clear into my possession….”
Hearing this, any lawyer’s ears will perk up, certainly any e-discovery lawyer’s. Diligent, competent lawyers don’t ‘mess up” by producing every text message irrespective of relevance, responsiveness and privilege! That could prompt a waiver of privilege–every lawyer’s nightmare!
Unless the lawyer practices in the Great State of Texas, a jurisdiction with strong safeguards against unwitting waiver of privilege by inadvertent production. Texas Rule of Civil Procedure 193.3(d) offers a get-out-of-jail-free card that’s easy to play:
Tex. R. Civ. P. Rule 193.3 Asserting a Privilege
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.
Aha! So THAT’S what all the twelve days/ten days/two days stuff is about!
Jones’ counsel had ten days from his discovery that privileged information had been unintentionally produced to amend the response to assert a privilege and demand its return. In Texas, we call that “snap-back” and in federal court, it’s what Rule 502 of the Federal Rules of Evidence was intended to fix.
Texas has its own evidence rule on point, Rule 511(b)(2):
Tex. R. Evid. Rule 511: Waiver by Voluntary Disclosure
(b) Lawyer-Client Privilege and Work Product; Limitations on Waiver
(2) Inadvertent Disclosure in State Civil Proceedings. When made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).
Pulling it together:
At some point on or before Friday, July 22, 2022, defense counsel supplemented discovery responses in such a way that two years of Jones’ cell phone messages were produced. How? No clue! Perhaps by placing it into a production “drop box” repository hosted online? The method of production doesn’t matter, and the form of production is unhelpfully characterized as “digital;” even the time of production isn’t critical. What matters most is when did defense counsel discover privileged information was produced and what did he do about it?
I expect the July 22 date refers to a communication from plaintiff’s counsel informing defense counsel that privileged or confidential material may have been inadvertently produced.
I expect it because ABA Model Rule of Professional Conduct 4.4(b) provides:
“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”
Texas’ disciplinary rules don’t mirror ABA Model Rule 4.4(b), but smart, ethical counsel will supply the notice if for no other reason than failing to do so puts the lawyer receiving the information at risk of unpleasant outcomes, including being booted from the case by disqualification.
Once notified, the snap-back provision kicked in and—tick…tick…tick—defense counsel had ten days to “[amend] the response, identifying the material or information produced and stating the privilege asserted.” Again, Texas liberally protects against unwitting privilege waiver, so all defense counsel had to do was write something, anything, akin to “the texts we supplied contain privileged attorney-client communications and non-responsive confidential information. Return them now, destroy any copies and do not use of share any information they hold.” It wouldn’t have required much specificity since plaintiffs’ counsel knew what he had and believed his opponents counsel “messed up.” All it would have taken was a peep of timely objection. Yet, as plaintiffs’ counsel put it in court, defense counsel “did not take any steps to identify it as privileged or protect it any way.”
But, literally just as I’ve written the preceding, my dear friend, Mary Mack, the Empress of E-Discovery, sent a text indicating Plaintiffs’ counsel Bankston e-mailed defense counsel Reynal shortly before midnight on Friday, 7/22 and, discussed the production stating: “My assumption is now that you did not intend to send us this? Let me know if I am correct.”
The following day, July 23, 2022, defense counsel F. Andino Reynal replied:
“Thank you Mark. There appears to have been a mistake in the file transfer…. Please disregard the link and I will work on resending. Andino”
So, the plot thickens! It’s not clear that defense counsel “did not take any steps to identify it as privileged or protect it any way.” Still, if what I’ve related here is all there was in term of exchanges (and it shouldn’t be), plaintiffs’ counsel is betting heavily that specific assertions of privilege are required for snap back to apply and that citing a “mistake” and asking plaintiffs to “disregard the link” is insufficient to forestall waiver in a state that bends over backwards to protect attorneys from the consequences of inadvertent waiver.
Gutsy or unprofessional? Your call. Was a new link to a collection scrubbed of privileged content ever supplied? Why didn’t defense counsel promptly object at trial and protect the record? Will we next need to discuss the crime/fraud exception to attorney-client privilege? Any way you cut it, this mess promises to be a case study in discovery abuse and lawyer misconduct. Stay tuned!
UPDATE: Here’s a motion filed by Jones on August 4, 2022: