The recent litigation surrounding Alex Jones and Infowars Podcast, relating to defamatory statements Jones made about the Sandy Hook Elementary shooting victims and their families, focused on an issue that was not supposed to be the center of this defamation trial. During the trial, Plaintiff’s counsel confronted Jones on cross-examination with the fact that Jones’ legal team had inadvertently turned over two years’ worth of Jones’ text messages relating to his baseless claims that the Sandy Hook shooting never took place. The inadvertent production was bad for Jones, however, how it was revealed was even worse. Plaintiff’s lawyer, Mark Bankston, had the following exchange with Jones:
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?
Was there anything that Jones’ lawyers could have done to “undo” this massive mistake? Certainly there was nothing they could do in that moment at the trial. But, if the mistake was caught sooner, they could have attempted to mitigate the damage and protect their client. For the Plaintiff’s lawyer, that information resulted in victory and a default judgment on liability. As for the defense, those text messages proved their client was a liar and perjured himself. Jones had maintained that he had no relevant text messages relating to the Sandy Hook matter. Based on the information contained in the produced text messages, the jury entered an award of approximately $50 million dollars in damages to the parents of one of the Sandy Hook victims, and opened up Jones’ lawyers to a likely legal malpractice suit.
- Pennsylvania Law Does Not Provide a Specific Remedy for Inadvertent Productions.
The Pennsylvania Rules of Evidence do not provide for any mechanism to address the inadvertent production of privileged documents. However, the Federal Rules of Evidence and Federal Rules of Civil Procedure do provide guidance in this area. F.R.E. 502 and F.R.C.P. 26(b)(5)(B) provide an effective mechanism for mitigating the concerns of inadvertent production of privileged documents. Attorneys can attempt to mitigate the consequences of inadvertent productions by attempting to utilize the federal rules in Pennsylvania cases.
In Pennsylvania, disclosure of privileged documents can mean a waiver of the privilege to protect the information contained in them. The Pennsylvania Superior Court has adopted the federal “reasonableness” standard by holding that whether an inadvertent disclosure is a waiver depends on: “The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; the number of inadvertent disclosures; the extent of the disclosure; any delay and measures taken to rectify the disclosure; and whether the overriding interests of justice would or would not be served by relieving the party of its errors.” See, Carbis Walker, v. Hill, Barth and King, 930 A.2d 573 (Pa. Super. Ct. 2007). This approach requires that the attorney who made the inadvertent disclosure took care in reviewing the documents both before and after the inadvertent disclosure.
The Rules of Professional Conduct require an attorney to “make reasonable efforts” to prevent disclosure of a client’s privileged communications and, more broadly, any information “relating to the representation of a client.” When client information is disclosed to a third party, this puts the client at risk of significant adverse results. In the Jones matter, it was a $50 million dollar one.
Without a Pennsylvania Rule governing inadvertent disclosure, one must look to the Federal Rules for persuasive authority on the issue. F.R.E. 502 and F.R.C.P. 26(b)(5)(B) govern inadvertent productions in federal courts and can be used to guide Pennsylvania courts when these instances arise. Specifically, F.R.E. 502 (b) provides:
“(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
- The disclosure is inadvertent;
- The holder of the privilege or protection took reasonable steps to prevent disclosure; and
- The holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).”
Additionally, F.R.C.P. 26 (b)(5)(B) provides that:
“Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claims and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal or a determination of the claims. The producing party must preserve the information until the claims is resolved.”
Knowing that Pennsylvania Courts are looking to see what “reasonable efforts” were made to protect client documents (and not guided by any state rule on the issue), it is critical to immediately recognize the inadvertent production, advise opposing counsel (or any third party), and make a formal request for the return of the privileged and/or protected documents. Without establishing that these things were completed in an expeditious matter, it is likely that a Pennsylvania Court will determine that any privilege was waived.
If your opponent will not agree to the return of the documents, it is important to protect the record by filing a motion with the court stating that the prejudice to your client would not be in the interest of justice. More likely than not, if you identify the mistake and cite to the Pennsylvania case law and Federal Rules cited above, the court will require the return of the documents and the issue will be resolved prior to any trial. If you do nothing to enforce your request for the return of the documents, and the documents produced adversely impact your client, a malpractice suit against you will most likely follow.
2. How To Avoid Inadvertent Productions In The Age of Electronic Discovery.
The production of the text messages in the Jones case was the result of a mass document production. Although all of the details are not known as to how that was done, it appears that the text messages were part of an electronic document exchange. In most large cases today, that is how the information is exchanged. Clearly, Jones’ attorneys did not review what was being produced, or did not organize a large volume of documents in a manner that they could effectively review before production. If attorneys do not have an electronic system that helps to organize the documents (e.g. Relativity or some similar program), they must manually review every page of the electronic file before it is produced to ensure that privileged documents are identified and removed from the production.[1] Before the age of electronic discovery, a manual review of all documents was standard practice. With efforts being made to reduce client costs and keep the pace of a case moving, it has become clear that things are slipping through the cracks.
Although the Federal Rules of Evidence and Civil Procedure seem to be more forgiving of an inadvertent production, and provide a remedy for it, attorneys must not get complacent with their review of large document productions. Even using a program like Relativity, an inspection of each document entered into that program must be made if we are going to protect our clients from themselves. In the Jones case, he continued to lie about his lies – and the inadvertently produced documents established that.
In the end, karma caught up with Alex Jones. His lies and attempts to suppress the truth were revealed by the careless actions of his lawyers. For the family of Jesse Heslin, the six-year-old who was shot and killed at Sandy Hook Elementary School, the $50 million dollar verdict will not bring their son back. However, they now believe that the universe was on their side when the inadvertent production was made and not timely contested. For lawyers observing this case, it is a “wake up” call in terms of taking the time to review every document and protect the privilege. And in the Jones case, even protecting the privilege could not protect the lies. The question now becomes whether Jones’ lawyers knew of the text messages and produced them anyway, or whether they just missed them. Either way, a legal malpractice claim will certainly follow this verdict and the issue of inadvertently producing privileged documents will be front and center in a Texas Court.
[1] It is important to create a separate Privilege Log of the documents that you are removing from your production. That Privileged Log must also be produced to your opponent at the time of the document production.
