[Editor’s Note: Originally published by Reed Smith, LLP on their Viewpoints blog, October 13, 2022 and republished with permission.]
Alex Jones is the face of InfoWars, a website that hosts podcasts, journals, and other media materials. Jones falsely claimed on InfoWars that the 2012 Sandy Hook school shooting was a hoax, staged by the federal government to justify gun control. The parents of some of the shooting victims, who Jones had accused of being actors, were stalked, harassed, and even shot at, by Jones’s followers. Some subsequently brought defamation suits against Jones in Texas and in Connecticut.
The Judges in both Texas and Connecticut ultimately barred Jones from contesting liability, based on Jones’s repeated failures to comply with discovery and other misconduct. Accordingly, both trials were limited to the assessment of damages.
Attorneys have a duty to competently communicate with, and supervise, professional staff. “Blaming the paralegal” is not a defense.
David R. Cohen, Partner, Reed Smith & Chair, EDRM Project Trustees
During testimony in the Texas case, it was revealed that a paralegal working for Jones’s counsel, F. Andino Reynal, mistakenly released Jones’s cell phone contents to plaintiff’s counsel, Mark Bankston. Bankston informed Reynal that an inadvertent production had been made, but Reynal’s reply to this notice, asking Bankston to “disregard” the link, was insufficient to invoke “snapback” non-waiver protections in Texas. The production proved the falsity of Jones’s prior sworn statements that his phone did not contain any text messages or emails regarding Sandy Hook. The production also included confidential records, including medical records, which were transmitted to Reynal by Jones’s Connecticut lawyer, Norm Pattis.
On August 4, 2022, the day after revelation of the discovery error, and related false statements by Jones, the Texas jury awarded $4.11 million in compensatory damages to the Sandy Hook parents. That jury added $45.2 million in punitive damages the following day.
A jury in Connecticut has now awarded $965 million in damages to the Sandy Hook plaintiffs in that case. The jury also awarded attorneys’ fees and cost—additional punitive damages are still to be determined. Jones’s lawyers, both Reynal and Pattis, may be subject to sanctions, which have yet to be determined.
While the conduct of Jones and his counsel appears to have been particularly egregious, these cases highlight the potential for mistakes in discovery, even in situations where a party and its counsel may be acting in good faith. For example, electronic storage of documents and the volume of documents that can be inadvertently produced on electronic media or even through links, makes it much easier to inadvertently produce large volumes of documents that are not subject to production.
Lessons that are underlined by the Jones case include:
- Attorneys should exercise due diligence to help ensure the accuracy of client representations about where relevant evidence may or may not be found—particularly where there is reason not to trust the veracity of client representations.
- Attorneys must also exercise due care in the collection, review, and production of information, particularly electronic information. If they and/or their firms lack the necessary expertise, they need to consult with other counsel and/or consultants who have that expertise.
- Attorneys have a duty to competently communicate with, and supervise, professional staff. “Blaming the paralegal” is not a defense.
- When mistakes happen, as they will, it is important to address them promptly and carefully, with competent help.
No attorney wants to face sanctions and/or bad case outcomes due to discovery mistakes, whether resulting from a failure to identify and produce required information, or the inadvertent production of privileged or irrelevant information. Pay sufficient attention to discovery compliance, and enlist the help you may need to avoid becoming the next victim.