Legaltech News‘ Isha Marathe wrote a breaking article on the surprise impeachment in the Alex Jones defamation case where Mary, Craig and David Cohen of Reed Smith LLP weigh in with their thoughts on “Inadvertent Disclosure in Alex Jones Trial Leaves E-Discovery Experts Flabbergasted.“
Regarding how normal production mistakes can be, David R. Cohen, partner at Reed Smith, head of the Records & eDiscovery Practice Group and EDRM Chair of the Project Trustees asserted:
While the production mistake, and failure to promptly remedy it, alleged in the Alex Jones case may seem particularly egregious, it is not unusual for lawyers to make mistakes in e-discovery. This is particularly true because of the high volume of electronic information potentially at issue, the need for technological expertise, how easy it is to make mistakes, and the inability to see at a glance what data or how much data is contained on computer drives or other production media.
David R. Cohen, Partner, Reed Smith
Quoting Craig Ball on the inadvertent production used in impeachment, “You have three essentially stupid mistakes the defense made if this is a mistake,” Ball said. “This is privileged stuff. It’s what lawyers look for above all to prevent from falling into the hands of the other side, they let that happen. You have the apparent failure to assert the snapback provision and demand its return. [Then] you have the apparent failure to object at the time the information was proffered during cross-examination.”
Marathe wrote thaat Mary Mack, CEO and chief legal technologist at Electronic Discovery Reference Model (EDRM), said Wednesday’s Perry Mason moment is likely “going to be a gift to e-discovery,” precisely because it brings to light the importance of e-discovery best practices.
“When the forensics software creates an image, the examiner can name it, and my guess is the name of that file was not ‘Alex Jones’ whole cellphone.’ It was probably something like ‘xyz1056t,’ and it could have been accidentally included in production,” said Mack.
