united-states discovery politics
Was Alex Jones&#39;s attorney handing over phone-record evidence a &quot;mishap&quot; or required by law?
<p>CNN reports on Alex Jones's case regarding Sandy Hook as follows:</p>
<blockquote>
<p>Jones, who was the sole witness for the defense during the trial, did not fare well Wednesday as he was cross-examined by the plaintiffs' attorney, Mark Bankston.</p>
<p>In a remarkable moment, Bankston disclosed to Jones and the court that he had recently acquired evidence proving Jones had lied when he claimed during the discovery process that he had never texted about the 2012 Sandy Hook shooting.</p>
<p>Bankston said that <strong>Jones' attorney had, in an apparent mishap, sent him two years of cell phone records</strong> that included every text message Jones had sent.<br />
<sub>Oliver Darcy, <a href="https://edition.cnn.com/2022/08/03/media/alex-jones-sandy-hook-trial/index.html" rel="noreferrer">Sandy Hook family attorney exposes Alex Jones' dishonesty during brutal cross-examination</a>, CNN, 3 Aug 2022.</sub></p>
</blockquote>
<p>I could be completely wrong, but my understanding is that, during <a href="https://en.wikipedia.org/wiki/Discovery_(law)" rel="noreferrer">discovery</a>, Jones's attorney is (probably) required by law to hand over the cell phone records.  Thus CNN's phrasing &quot;an apparent mishap&quot; seems bizarre to me: Jones's attorney was just obeying the law.</p>
<p><strong>Question</strong>: Was Alex Jones's attorney handing over phone-record evidence a &quot;mishap&quot; or required by law?</p>

<blockquote>
<p>Was Alex Jones's attorney handing over phone-record evidence a &quot;mishap&quot; or required by law?</p>
</blockquote>
<ol>
<li><p>The discovery phase, <em>which concluded before the trial began</em>, required Alex Jones to provide texts and emails mentioning Sandy Hook (among other things). He did not provide any and testified in writing and in court he could find none.</p>
</li>
<li><p>On August 3rd 2022, day seven of the trial, plaintiffs' attorney Mark Bankston claimed he had obtained from Jones's attorneys a digital copy of Jones's cellphone on which there were texts and emails that mentioned Sandy Hook. He said this copy was mistakenly provided to him. Whether accidental or deliberate, this copy or <em>its texts and emails mentioning Sandy Hook were not provided during discovery</em>. Judge Gamble told the jury about the digital copy, &quot;we don't know whether it was on accident or on purpose... but what we do know is that it wasn't properly turned over when it should have been.&quot; <a href="https://youtu.be/qhtz_6JKSh8?t=7658" rel="nofollow noreferrer">https://youtu.be/qhtz_6JKSh8?t=7658</a></p>
</li>
</ol>
<p>A video clip of the part of the hearing in question, when Bankston begins asking Jones about the texts. <a href="https://www.youtube.com/watch?v=tpnSCIak5A8" rel="nofollow noreferrer">https://www.youtube.com/watch?v=tpnSCIak5A8</a>. Or this timestamp in a longer clip <a href="https://youtu.be/qhtz_6JKSh8?t=6821" rel="nofollow noreferrer">https://youtu.be/qhtz_6JKSh8?t=6821</a>.</p>
<p>Mark Bankston for the plaintiffs, addressing Jones:</p>
<p>&quot;Your attorneys messed up and sent me a digital copy of your entire cellphone, with every text message you sent for the past two years. And, when informed, did not take any steps to identify it as privileged or protected 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.&quot;</p>
<p>The above quote begins 5mins into the first clip or this timestamp in the longer clip <a href="https://youtu.be/qhtz_6JKSh8?t=6830" rel="nofollow noreferrer">https://youtu.be/qhtz_6JKSh8?t=6830</a>).</p>
<p>After the texts, Bankston asked questions about emails not being turned over... Jones had sworn he didn't even use email. Bankston showed him emails that appeared to be written by Jones. &quot;I must have dictated them&quot; said Jones.</p>
<p>Judge Gamble told the jury about the digital copy, &quot;we don't know it was on accident or on purpose, but what we do know is it wasn't properly turned over when it should have been.&quot; <a href="https://youtu.be/qhtz_6JKSh8?t=7665" rel="nofollow noreferrer">https://youtu.be/qhtz_6JKSh8?t=7665</a></p>
<p><a href="https://nitter.net/dansolomon/status/1554900413702443016#m" rel="nofollow noreferrer">Bankston told journalist Dan Solomon the phone copy was put in a Dropbox the parties were using to exchange materials</a>. Bankston did not believe it was put there deliberately and notified Jones's attorneys. Apparently Jones's attorneys did not respond. <a href="https://www.stcl.edu/lib/TexasRulesProject/TRCP186-193/rule193-3Nov1999.htm" rel="nofollow noreferrer">Under Texas law they had ten days to assert privilege or say the material was put there by mistake, Rule 193.3(d)</a> - as of August 3rd Bankston was legally free to read and use the material.</p>
<p>(There is some gossip online about what was supposedly heard on 'hot mic' between Reynal and Bankston, I haven't heard it myself and have no timestamps or clips. I do think I heard Jones, after leaving the witness box, ask Reynal <a href="https://youtu.be/qhtz_6JKSh8?t=8352" rel="nofollow noreferrer">&quot;they got my text messages?&quot;</a>)</p>
<p>[edit]</p>
<p>Incidentally, <a href="https://en.wikipedia.org/wiki/Alex_Jones#Sandy_Hook_school_shooting" rel="nofollow noreferrer">this isn't the first time that Jones / his attorneys failed to comply with discovery orders in relation to these Sandy Hook cases</a> - a number of sanctions and default judgements have gone against him for that.</p>
<p>Indeed this damages phase is the result of <a href="https://www.documentcloud.org/documents/21074090-pozner-judgment" rel="nofollow noreferrer">the default judgment against him in September 2021 for failing to comply with discovery</a>:</p>
<p>&quot;The Court find that Defendants unreasonably and vexatiously failed to comply with their discovery duties. The Court finds that Defendants' failure to comply with discovery in this case is greatly aggravated by Defendants' consistent pattern of discovery abuse throughout the other similar cases pending before this Court.&quot;</p>
<p>[edit 2]</p>
<p><strong>On August 4th 2022 Jones's attorneys have filed an emergency motion that seems to settle the issue of whether the provision of all the material was a &quot;mishap&quot;: they say it was &quot;inadvertently&quot; supplied.</strong></p>
<p><a href="https://www.scribd.com/document/585555024/Alex-Jones-Emergency-Petition" rel="nofollow noreferrer">text of the motion</a></p>
<p>They claim they promptly informed plaintiffs' attorneys about the mistake but the latter used the material anyway in violation of privilege, procedure and the court's protective order. Now Twitter lawyers are arguing about whether the language used by the defence was adequate to engage the rules mentioned above.</p>
<p>But this doesn't seem to resolve the issue of why the material demanded for discovery was not supplied for discovery or why Jones testifed he could not find such material.</p>
<p>Judge Gamble denied the request for a blanket protective order to seal the record of the text messages and denied the motion for mistrial. <a href="https://www.youtube.com/watch?v=dKbAmNwbiMk" rel="nofollow noreferrer">https://www.youtube.com/watch?v=dKbAmNwbiMk</a></p>
