Could Alex Jones' lawyer have claimed back the data he should have produced in discovery?

Question

As I understand it from the news and some blogs:

1. Alex Jones and his lawyers were asked during discovery to provide any message from his cellphone that did mention the Sandy Hook massacre. He claimed he did not have any and he did not produce any.
2. Then his lawyer provided the plaintiffs' lawyer with some electronic documents. But it seems that he botched it and gave way more information than he intended to.
3. The plaintiffs' lawyer warned Jones' lawyer about that. Jones' lawyer had ten days to formally acknowledge the transfer was a mistake, and to ask the plaintiffs' lawyer to ignore and delete the data.
4. Jones' lawyer failed to do anything. Ten days after the error was notified to Jones' lawyer, and due to the lack of answer, the plaintiffs' lawyer was entitled to use all that was provided to him.
5. That data included the record from Jones' phone, showing that he had messages related to the Sandy Hook massacre that he had failed to disclose.

My question is: if the plaintiffs' lawyer had noticed those messages (that should have been delivered to him more than a year ago), could he have kept them and used them in trial even if Jones' lawyer had requested him to delete the data transferred to him? Or would a request from Jones' lawyer have prevented him from doing that?

Answer 1

This is a civil case in Texas.

See Texas Rules of Civil Procedure, Rule 193.3(d) and guidance. In the current PDF May 1 2022 those are on pages 199 and 121 respectively and I reproduce them below.

My understanding is that defense counsel (D) could have asserted privilege when Plaintiffs' counsel (P) originally told him about the link. In doing so, D would have identified the inadvertently produced material and the privilege asserted.

Then P would be obliged to promptly return (or delete as it's digital) that material and any copies. Inevitably in this case P would object to the claim of privilege over any material potentially or apparently 'responsive' to discovery (e.g. a folder called "digital copy of defendant's phone" or texts mentioning keywords). The judge would hear from both parties and make a ruling on the material.

In reality, D did not do that.

Also, D made no contemporaneous objections to P's request to admit particular material in court (note P did not request the admission of the entire trove, only particular pieces of it).

Instead, the day after the "Perry Mason moment", D filed an 'emergency motion of protection' and a request for a mistrial. The judge denied both. D asked for another ten days to review the material. The judge said no to ten days but said D could have a D a day to make a start and then they could discuss whether more were needed. She said she would not make a blanket protection order over the entire trove without knowledge of what was in it.

hearing here https://www.youtube.com/watch?v=dKbAmNwbiMk

Incidentally, P claimed there was an earlier inadvertent production of some other material and in relation to that material rule 193.3(d) was followed by both parties. (from 7mins in that clip.)

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Texas Rules of Civil Procedure

193.3(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.

(guidance)

4. Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. The provision is commonly used in complex cases to reduce costs and risks in large document Page 122 productions. The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege. This rule is thus broader than Tex. R. Evid. 511 and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992), to the extent the two conflict. The ten-day period (which may be shortened by the court) allowed for an amended response does not run from the production of the material or information but from the party’s first awareness of the mistake. To avoid complications at trial, a party may identify prior to trial the documents intended to be offered, thereby triggering the obligation to assert any overlooked privilege under this rule. A trial court may also order this procedure.

5. This rule imposes no duty to supplement or amend deposition testimony. The only duty to supplement deposition testimony is provided in Rule 195.6.

6. Any party can request a hearing in which the court will resolve issues brought up in objections or withholding statements. The party seeking to avoid discovery has the burden of proving the objection or privilege.

Answer 2

He can recall anything that has privilege or is a medical record

Basically, the things you don’t have to produce in discovery. Anything that should have been produced can’t be clawed back. However, anything that is irrelevant and therefore not subject to discovery (e.g. most of the phone’s contents are presumably not relevant) but not privileged is unable to be clawed back.

Watch this space: it’s quite likely that lawyer will be needing careers advice.

Answer 3

There's another element to this. Most of this is summarizing Steve Lehto's video on the subject.

Defendant's lawyer was already in a jam.

Previously, plaintiff had demanded all text messages relating to Sandy Hook. Defendant said "None exist" and Defendant's lawyer made that statement to the plaintiff.

Then, Defendant give the phone in question to the lawyer. The lawyer found out they do exist. Now what? (time: 22:16)

This difference may be lost on defendants, but the court (judge, clerk, bailiff) are a completely different party than the plaintiff or prosecutor. The court is simply the venue: the house of debate. They are neutral.

A lawyer is an officer of the court, and the duty to the court arguably exceeds their duty to their client. These are the rules of professional conduct.

Rule 3.03 Candor Toward the Tribunal

• (a) A lawyer shall not knowingly:
• • (1) make a false statement of material fact or law to a tribunal;
• • (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
    ...
• (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

If you want to hear Steve Lehto read this almost verbatim (from Michigan's rules), it is here. (time: 24:31)

So, the lawyer was in a deep predicament between loyalty to the client and professional conduct to the court.

And now, the lawyer is not.

The accidental dump had the side-effect of mooting the lawyer's predicament.

Steve covers this a little bit, but my thought also is "Well, well. Isn't that convenient."