So many eDiscovery disasters, so little time. In the US, unless you live under a rock, you probably know who Alex Jones is. You may have even heard the news about his trial last week where the jury awarded $4.1 million in compensatory damages and $45.2 million in punitive damages. Craig Ball answers important questions about Alex Jones’ inadvertent waiver to help you understand how it happened in the latest eDiscovery disaster.

In Craig’s two posts on back to back days* last week (Ripped from the Headlines: Alex Jones and Inadvertent Waiver here and More Questions re: Alex Jones Defamation Case here), he discusses how Jones’ counsel inadvertently produced privileged mobile text messages and failed to seek their return in time to prevent waiver of privilege. As Craig states:

“The “inadvertently” produced messages reveal that (SPOILER ALERT!) Jones is a discovery-obstructing, lying scumbag… 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.”

Googling the definition of “scumbag” you get this: “a contemptible or objectionable person”. Yep, that fits! 😉

Anyway, last Wednesday, 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?”

That’s right, Alex Jones’ inadvertent waiver happened because Jones’ attorneys accidentally produced his entire text message log for two years. How? We don’t know the details, but it actually happened.

Jones’ response was a classic acknowledgement that he’d been caught: “This is your Perry Mason moment,” he stated, referring to the old TV show (in black and white, no less) in which defense lawyer Perry Mason won cases after last-minute revelations.

Craig proceeds to dissect Bankston’s question, including why Tex. R. Civ. P. Rule 193.3 (Asserting a Privilege) subsection (d) (Privilege not waived by production) makes the 12 days/two days factor so important.

Craig asks three questions at the conclusion of his first post and repeats them at the outset of his second post:

• 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?

Craig addresses the answer to the first question with supplemental information in the second post, referencing his own “dated reference” to an old TV show (at least his is in color) and dives deeper into the utter failure associated with the second question. But Craig also points out something that plaintiffs’ counsel Bankston did that could be grounds for a retrial on the damages phase. Eegads! Check out his two posts here and here.

So, what do you think? Was Alex Jones’ inadvertent waiver the most egregious eDiscovery disaster you’ve ever heard? Please share any comments you might have or if you’d like to know more about a particular topic.

* – Daily blog posts by Craig Ball?!? Who does he think he is? 😉

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.