In one of the more dramatic courtroom scenes read about, other than those that play out in novels, Alex Jones was confronted on the stand with a cache of his own texts and emails. But where did these messages come from when Jones repeatedly claimed during discovery that he searched for “Sandy Hook” in his text messages and found none?
Did Jones’ well-credentialed, former assistant U.S. attorney, lawyer accidentally produce the entirety of his client’s phone and fail to claw back any of it? A mistake of mind-boggling proportions? Or was there some other, benign explanation?
Unfortunately for Jones’ counsel, the production was the product of error. Specifically, two weeks before the trial — and well after the discovery deadline — the paralegal on Jones’ legal team sent plaintiffs’ counsel a Dropbox link containing a supplemental production, mistakenly consisting of two years of Jones’ cellphone records.
Plaintiffs’ counsel alerted Jones’ legal team of the apparent mishap, to which Jones’ counsel replied, “Please disregard” and promised a new link would be forwarded. However, no such link was forthcoming. In fact, nothing was done by Jones’ legal team. Indeed, after learning the initial Dropbox link was sent in error, Jones’ legal team did not:
- produce the supplemental link promised;
- claw back the inadvertently produced documents;
- assert privilege over any subset of the documents;
- advise Jones of the mistake before Jones took the stand; or
- make any type of application during cross-examination that could have lessened the blow (request a continuance, get the jury excluded, etc.).
As Alexander Pope Said….
In the words of Alexander Pope, “to err is human.” And anyone who has made a mistake would likely agree that life’s greatest lessons are usually learned from the worst mistakes. Therefore, the purpose of this blog post is not to stand in judgment. Rather, the purpose is to provide practical guidance about the potential pitfalls of a discovery process that is becoming more and more electronic and complex, and our professional responsibilities during that discovery process.
Critical to understanding the pitfalls is first understanding three different ethical rules that were implicated in Jones’ snafu.
- The most basic rule is the American Bar Association’s Model Rule 1.1, which mandates that lawyers provide competent representation, which means the attorney possesses “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The duty of competence further requires that an attorney stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Indeed, one can no longer claim to be a digital dinosaur and produce email in paper print out (or produce an entire cellphone because s/he doesn’t understand how to apply search terms or redactions) without violating Rule 1.1. It is critical that as discovery becomes increasingly digital (emails, jpegs, snaps, IMs, texts, SMSs, ephemeral messaging, tweets, posts, etc), attorneys remain competent with those advancements.
- Model Rule 3.4 forbids, among other things, a lawyer from obstructing another party’s access to evidence, engaging in spoliation, falsifying evidence or assisting a witness in falsely testifying, and making frivolous discovery requests or failing to make a “reasonably diligent effort to comply with a legally proper discovery request.” This rule serves to remind practitioners that despite an adversarial system, evidence must be marshalled properly, and no obstructive tactics will be tolerated. How and when counsel learned of the contents of Mr. Jones’ phone is a question.
- Model Rule 5.1 requires that attorneys make “reasonable efforts to ensure” that the lawyers and non-lawyers whom we supervise are acting in conformity with the rules – the failure of which exposes the more senior/attorney to discipline. Ownership is everything. Indeed, although one may seek to shift blame for discovery failures to a vendor or junior attorney, doing so would violate this rule. Indeed, any claims that “mistakes were made but not by me” won’t get you far.
Are Discovery Violations Sanctionable?
You bet they are. Even the most cursory searches on the internet will turn up disciplinary proceedings, financial sanctions, and various adverse inferences resulting from discovery misconduct.
For example, in a matter where an attorney failed to respond to discovery and improperly certified he made a reasonable inquiry into the accuracy of the information he provided, the court suspended the attorney for 18 months and encouraged judges to “file grievances if they feel their best efforts to achieve compliance with discovery orders are insufficient or if they believe a lawyer fails to understand discovery obligations.” Similarly, financial penalties may be imposed when a court finds an attorney/client failed to comply with discovery obligations. Finally, any claimed failure to understand the discovery process is likely to fall on deaf ears.
How does one avoid discovery sanctions and accompanying discipline? Below are ten considerations – not intended to be exhaustive – that may help avoid discovery sanctions and allow counsel to remain compliant with discovery obligations.
- Implement Timely Litigation Holds. Be sure your legal hold is implemented as soon as litigation is reasonably anticipated. Be certain that your hold notice is sufficiently broad, is sent to the right custodians, receipt is acknowledged, and it is updated as needed.
- Conduct Key Custodian Interviews. A lawyer cannot rely only on the hold notice. Rather, custodial interviews with key players, IT personnel and individuals with information relevant to the dispute or the client’s network architecture should be conducted. Minimally, these interviews will confirm the suspension of auto-delete protocols and will help identify relevant information for preservation and collection.
- Honesty is the Best Policy When Dealing with the Courts and Opposing Parties. Never make a factual representation about the status of preservation, collection, or production efforts without confirming the underlying facts with original sources. While a client will rarely mislead their lawyer intentionally, it is common for clients to have incomplete information or operate under a misunderstanding of fact when information is communicated second-hand. Moreover, courts and opposing parties understand that mistakes can happen at various stages of the discovery process. Such issues must be addressed immediately and head-on. Usually, the optimal strategy is full disclosure along with remedial measures.
- You Get More Bees with Honey… Seek a cooperative approach irrespective of how unpleasant or unreasonable opposing counsel may be. Indeed, a cooperative approach to discovery will invariably reduce disputes and expenses. Take the higher road and assume that every email and letter you write to opposing counsel may end up in front of the judge, so adopt a cooperative approach and reasonable tone in all communications with opposing counsel.
- Consider Entering Protective Orders, Clawback Agreements, and Rule 502 Agreements.
- There’s No Longer Room for Boilerplate Discovery. The amended FRCP 26(g)(1)(B)(iii) provides that every discovery request and response must be signed by at least one attorney of record, and by signing you certify that the discovery request or response is proportional – meaning “neither unreasonable nor unduly burdensome or expensive considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of issues at stake….” The Rule goes on to state that “[i]f a certification violates this rule without substantial justification, the court must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”
- Be Careful What You Wish For…Lest You Receive It in Return. Never send a discovery request to an adversary that you or your client would be uncomfortable complying with were opposing counsel to author a reciprocal request to you.
- Carefully Devised Search Terms Are Critically Important. The judgment of your legal team is a good starting point for crafting search terms, but it is far from sufficient. Review a preliminary “hit-by-term” report from your electronically stored information (ESI) vendor so you can appreciate which terms are too limiting or overbroad. During custodial interviews (see supra) ask about project code names, and other unique search terms. Then sample, sample, sample! Sampling the documents—both the hits and the non-hits—can help refine search terms and validate the terms chosen.
- Wise Use of Technology Can Be a Litigator’s Best Friend. ESI processing, review (even with contract attorneys), and production is among the costliest elements of any litigation. When used efficiently and wisely, technology can significantly reduce those costs. Consider early data assessment, filtering and predictive coding technology as appropriate for each matter. However, critical to using technology is understanding technology!
- Supervision Matters. While document review and productions tend to fall to younger lawyers and even paralegals, senior lawyers are responsible for supervising their direct reports. Indeed, we learned that lesson in the Alex Jones’ trial. Effective supervision requires some technical know-how and not mere delegation.
 Jones, the owner of InfoWars, was on trial to determine damages after a Texas state court judge issued a default judgment finding Jones guilty of defamation and the intentional infliction of emotional distress upon the families of victims of the Sandy Hook tragedy after Jones repeatedly and publicly claimed the massacre was a hoax. Ultimately, the jury in Heslin v. Jones (Case No. D-1-GN-18-001835 (Tex. 261st District Court, Travis Cnty, filed Apr. 16, 2018), awarded the families $4.1 million in compensatory damages and $45.2 million in punitive damages.
 Indeed, everyone was asking “how is this possible,” when plaintiffs’ counsel stated, “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 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? Did you know that?”
 Jones’ lead counsel said he intended to send a narrower subset of messages and asked the court to declare a mistrial for his error – a request the court declined.
 Jones’ team evidently were relying upon the Texas “snapback” law that allows lawyers to claw back evidence sent by mistake to legal opponents.
 At least one state has formally listed nine areas that an attorney must be able to perform to be deemed competent for purposes of electronically stored information. See The State Bar of Cal. Standing Comm. on Pro. Resp. and Conduct, Formal Op. 2015-193 (2015) (listing the following nine areas a lawyer must be able to perform: “Initially assess e-discovery needs and issues; Implement or cause to implement appropriate electronically stored information (ESI) preservation procedures; Analyze and understand a client’s ESI systems and storage; Advise the client on available options for collection and preservation of ESI; Identify custodians of potentially relevant ESI; Engage in a competent and meaningful meet-and-confer with opposing counsel concerning an e-discovery plan; Perform data searches; Collect responsive ESI in a manner that preserves the integrity of that ESI; and Produce responsive nonprivileged ESI in a recognized and appropriate manner.”).
 See In re Disciplinary Proceeding Against McGrath, 280 P.3d 1091 (Wash. 2012).
 See Wm. Slepoy, et, al, v. Andrew Slepoy et. al., (Nassau Supreme Court, Index No. 605758) (Driscoll, J.) (imposing financial penalty for spoliated documents).
 DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021). Here, the Northern District of Illinois considered an attorney’s failure to timely produce ESI. While the court believed the error unintentional, it held that “a reasonable understanding of ESI and the law relating to identifying, preserving, collecting, and producing ESI” are required. Accordingly, the court ordered a variety of sanctions.