By Daniel Bonner
Infowars talk show host Alex Jones is well-known. But the reasons behind his attorney’s recent discovery misstep might not be.
A jury in Texas required Jones to pay $45.2 million in punitive damages to the parents of a Sandy Hook Elementary School shooting victim on August 5, which came one day after the jury awarded them $4.1 million in compensatory damages for defamation. Jones had claimed that the shooting was a hoax and a “false flag.”
What we know is that Jones’ attorney mistakenly gave opposing counsel two years of his client’s text messages. As legal expert Craig Ball noted, the plaintiff’s lawyer Mark Bankston asked Jones about the mistake under cross-examination:
“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 in 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?”
Typically an attorney would issue a clawback notice, requesting the destruction or return of the privileged or irrelevant information, or object during the trial to the release of the information. But as Bankston noted, Jones’ attorney Andino Reynal didn’t do that.
A Matter of Discovery
While eDiscovery veterans can skip to my 12 recommendations below, if you’re new to the area, read on for a quick recap on the process of legal discovery.
Much of the Alex Jones case turned on discovery: the formal process parties use to investigate and exchange relevant information (a.k.a. evidence) regarding the items in dispute, witnesses, and material issues. The purpose of discovery is to ensure all parties benefit from access to the complete evidentiary record – all to avoid “trial by ambush.”
Discovery extends to all types of evidence – spoken, written, and Electronically Stored Information (ESI) – and obligates parties to preserve, diligently search, and review all data sources and systems that may contain relevant information. During review, attorneys benefit from investigation findings and fact development. After review, attorneys exchange relevant information with their clients and learn more about their opponents’ positions.
The rules of evidence require parties to produce all relevant, non-privileged information. Parties face severe penalties for the intentional destruction or incomplete collection of relevant information. Attorneys play a key role in advising clients on proper preservation, identification, and collection strategies, which in practice are purposefully overbroad to ensure nothing is missed.
Depending on the matter, the scope of collection may cover information from obvious and non-obvious sources: handwritten notes, hard copy records, voicemail audio, email, loose files from a laptop, systems logs, server data, and yes, private, and public-facing information from social media accounts and mobile devices, as was the case in Jones’ trial. Diligent and defensible data collection requires casting a wide net, and by design captures information that may be unrelated to the matter, including sensitive or potentially harmful documents.
Frequently time-sensitive and expensive, discovery is often viewed as burdensome. Still, its importance cannot be overstated. The strategic advantage of proper and effective discovery can change the outcome of a matter in your favor. Missteps may lead to penalties, or worse: a fast track to an unrecoverable position.
Legal document discovery culminates in an extremely high-risk event: production. That’s when attorneys deliver their client’s sensitive files to the opposing party. A core focus for all lawyers should be identifying and controlling risk for their clients. The stakes do not get much higher for the attorney and client than during document production.
Avoiding mistakes during high-risk activities requires competence, a strategic plan, the right team, and a process designed to ensure all mistakes are avoidable, low risk, and can be addressed while you can still control the impact.
For good reason, we rely on risk control systems every day. The two-person rule in aircraft cockpits. Datacenter colocation and offsite backup. Medical professionals in the operating room tasked to account for all surgical items used. The distributed authorization systems required to launch missiles.
eDiscovery is no different. Effective practitioners have systems and processes in place to ensure the risk of inadvertent disclosure of client data during production approaches zero. Performing discovery in the digital age requires an understanding of ESI, data sources, systems, eDiscovery tools, and secure workflows designed specifically with the client’s best outcomes in mind.
The very first American Bar Association model ethics rule speaks to a lawyer’s duty of competence, and the official comments confirm this ethical obligation extends to understanding technology: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….”
A Dozen Timely (and Timeless) Tips
With the Jones case making eDiscovery national news, it’s a great time to review several proven methods for your next eDiscovery production:
- Aggressively pursue advantageous agreements on the scope, timing, and method of document production required for your matter. Understand the risks and impact of each discovery stipulation.
- Understand the client data sources at issue and the tools and processes required to preserve, defensibly collect, and securely store ESI for review and production.
- Always create a working copy of collected evidence for analysis and keep it separate from the original source data.
- Develop a comprehensive strategy to review your client’s data both offensively and defensively. Isolate production candidates from those you must secure from potential production.
- Never plan to produce files en masse without review or diligence sufficient to certify the contents.
- Absent a court order, never produce raw data in native format.
- Prepare a production authorization protocol, checklist, and quality control process to eliminate inadvertent disclosure during production.
- When it’s time to produce, detail the intended contents by source, substance, and file count. Detail what the production should not include and be specific. Have multiple team members confirm the scope and content.
- Once the production is ready, have a separate team member validate the deliverable contents, propriety, and format.
- Only deliver productions through secure systems dedicated solely to outbound productions. Never comingle outbound productions with internal case files.
- Before providing a production transfer link, have a team member confirm what the link gives opposing counsel access to.
- Never get surprised by what you produce. Inadvertent disclosure is avoidable.
Discovery is a verb, not an event. Understanding and protecting client data is central to the practice of law. Alex Jones is our cautionary tale.
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Daniel Bonner is the MacGyver of Level Legal. There’s nothing the director of client solutions can’t figure out, from housebuilding to vehicle restoration to precision shooting. At work, he pays careful attention to details and communicates clearly with clients to deliver the delightful service our customers have come to expect.