Ripped From the Headlines: Alex Jones and Inadvertent Waiver

Episode Notes

Transcript

Sharon D. Nelson:  Before we get started, I’d like to thank our sponsors, Clio and Embroker.

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Intro:  Welcome to Digital Detectives, reports from the battlefront. We’ll discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches. Not theory, but practical information that you can use in your law practice. Right here on the Legal Talk Network.

Sharon D. Nelson:  Welcome to the 140th Edition of digital Detectives. We’re glad to have you with us. I’m Sharon Nelson, President of Sensei Enterprises, a digital forensic, manage cybersecurity and manage information technology firm in Fairfax Virginia. 

John W. Simek:  And I’m John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives, our topic is Ripped from the Headlines:  Alex Jones and Inadvertent Waiver.”  Today our guest is Craig Ball. Craig’s passion is understanding how things work so he can teach others. A compulsive tinkerer, Craig brags he can fix anything but the human heart after decades trying cases as lead counsel, then becoming a certified Computer Forensic Examiner. Craig turned a lifelong fascination with technology into a unique law practice, limited to service as a Special master in electronic evidence and discovery. Subjects he teaches at the University of Texas School of Law and Tulane Law School, a prolific author and speaker, Craig’s articles on digital evidence could be found at craigball.com and his blog ballinyourcourt.com. It’s always great to have you with us Craig.

Craig Ball:  Always great to be with you. Thank you for including me.

Sharon D. Nelson:  Well, we’re delighted to have you here and I must say, you know, we’re longtime friends and I saw you jump on that Alex Jones story, inadvertent waiver of privilege news quicker than I think I’ve ever seen you jump on a story. What got you so worked up about that story, Craig?

Craig Ball:  I got on that as quick as a duck on a June bug as we say here in Texas. It was an interesting confluence of events. It was taking place in Austin, Texas where I maintain my law practice and where I work at the University of Texas Law School. It concerned issues of electronic evidence, Texas trial procedure, and just general e-discovery mess ups as well as ethical obligation. So, it was a peculiar crossroads of the things that I’ve had a very strong interest in for most of my professional career. So, while I had to work with skeletal information to get started, I felt like I might have something to say. And as I’ve said to my friends in the past, I follow the Mr. Ed rule which for any — listing who might be old enough to remember the old TV show, Mr. Ed. The theme song says that Mr. Ed will never speak unless he has something to say and I thought, I might have something to add on this topic.

Sharon D. Nelson:  Great reference and we do remember.

John W. Simek:  That was a great show too. So, Craig for our listener’s benefit can you summarized what happened here as part of this whole thing?

Craig Ball:  Well as general background, Alex Jones. I’m going to try to rein my disdain inasmuch as I can. Alex Jones is a self-published political commentator, talk show, host, right wing conspiracy theorists or it may be just not even ethereal(ph) theory there. Just basically says anything that comes into his head, no matter how hateful and one of the things of many things he said was to suggest that a huge tragedy of 10 years ago, the shooting at the Sandy Hook Elementary School in Connecticut was a fabricated event, a so-called political false flag that families had had lied about it and just every kind of horrific bilious kinds of lie you could imagine. 

So, putting this forward, ultimately resulted in him being sued in Austin, Texas where he broadcasts his program and spews his bile. And that suit, I think was filed on the order of about three to four years ago in 2018, 2019. And he engaged in all manner of abuse of the Texas discovery process, ultimately prompting the district judge to grant essentially a default judgment to striking of his pleadings such that the issues of whether he had in fact caused damages had already been decided by the court as a matter of law. And so now, it would be going on probably 10 — almost two weeks ago.

(00:05:03)

This Friday, he was in trial on two back-to-back trialed issues of punitive damages and actual damages. And I put those in reverse order obviously, you have to have a finding of actual damages in order to support the potential for a finding of punitive damages and so at the time that these things were going on and the events that prompted me to write about it, it was the last day before the jury retired and the cross-examination of Alex Jones by plaintiff’s counsel when certain remarks were made by plaintiff’s counsel that basically threw everything in an uproar. And that’s what I decided that I felt that I needed to write about.

Sharon D. Nelson:  Well, some people reading what you wrote, might say that you were making political commentary. Can you explain to us why that really was not the case?  

Craig Ball:  Well, I guess if I guess if someone’s decided I made political commentary and what I’ve said, so far then, I suppose it would be. But I think in terms of talking about the, the nasty aspects of Alex Jones and his obstructionist behavior; his contempt for the rule of law, and Texas procedure and Discovery, I think all of those are established by the findings of the Court. So, all those nasty things which I editorialized and wrapped into the nice little package of referring to him as a scumbag, which was a little bit of editorializing. 

If you permit me, I should go on and add that what prompted what I wrote about were statements by Jones’ counsel in cross-examination. Where counsel asked him? “Did you know that 12 days ago, your attorneys messed up and sent plaintiff’s counsel and 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 privilege 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?” And I’m observing it as so many of us did when it was the lead story and somebody — YouTube’s of it were out there. The plaintiff’s attorney Mr. Bankston was virtually quivering out of his boots in his desire to get that out there and then it became sort of anticlimactic. But if you’re listening to that as an e-discovery lawyer and of course, there are far a very few electronic evidence, experts and e-discovery consultants as prominent as you and John, Sharon. Immediately you’re thinking, what is that?  Like 12 days ago, this happened then two days ago, it was free and clear. And for those of us who understand, Texas civil procedure that immediate gave rise(ph) to an understanding that what Bankston was talking about in front of the jury was the failure to seek to claw back or as we call it in Texas to snap back inadvertently, mistakenly produced items in discovery, particularly privileged items under Texas Rules of Civil Procedure Rule 193.3(d).

John W. Simek:  Craig, I know being a Texas lawyer, you’re really boned up on the particulars of all the Texas law. But can you go into a little more detail about how the defense lawyer actually really screwed up so badly, especially given the laws in Texas?

Craig Ball:  Sure. Although, I think we can get lessons from this that apply in every jurisdiction whether you’re in America, you’re in England, doing e-disclosure and all 50 states anywhere that the rules allow for the discovery of information from an opponent. There’s a significant likelihood that that jurisdiction also provides some level of relief if a lawyer inadvertently produces privileged information to the other side. Whether or not doing so results in a waiver of that right to object to supplying privileged content varies from jurisdiction to jurisdiction. Historically, Texas has been one of the most protective of counsel who make a mistake in discovery. Now, the mistake appears to have been the dragging and dropping into an online repository of certain items including protective medical records presumably not two years but at least eight months of text including apparently, text between attorney and client that would be privileged in most circumstances. 

(00:10:14)

And so, in Texas, when you have made that mistake, there are several things that have to happen. One of those here again applying not just Texas law but applying the rules that govern professional responsibility, so-called “lawyer ethics” by the ABA, American Bar Association’s Model Rules and certainly you all are very well familiar with the ABA. It is that when you receive information, it’s obvious, you weren’t supposed to receive, there’s a general ethical precept under the ABA model rules that you’re supposed to tell your opponent that you have come into possession of something that are reasonably sure. They didn’t intend to give you and that relates to the representation of their client or the matters of the representation and that’s a bit of a summary on my part. 

Texas, doesn’t that rule per se but certainly, any lawyer worth his or her salt, any lawyer with certain amount of not only ethical commitment, but also a recognition that what goes around comes around in the practice of law will advise an opponent if they’ve left their briefcase and your deposition room or as happened here, they’ve inadvertently produced something that it’s — painfully obvious, they didn’t intend to give you. And that’s important for a lot of reasons. But one of the reasons you do that is not just because you’re a good and ethical person but also because if it turns out that the court rules, you weren’t supposed to receive privileged information, that failure to act may cause the lawyer receiving the inadvertent production to be disqualified, to have to give up involvement in the case or the representation because they became privy to something they shouldn’t have had. And so, a wise counsel, and to Mr. Bankston’s credit, he was wise and ethical enough to advise his opposing counsel, Mr. Reynal an e-mail message and I didn’t know this when I first started writing and I didn’t find it out until I was about two-thirds of the way through. 

But it turns out that late on Friday night, right before midnight on Friday night, 12 days before trial or actually I should say 12 not before trial, but 12 days before the exciting question was asked that I just read. You know, the plaintiff’s counsel said to defense counsel by e-mail, “my assumption is now that you did not intend to give us this. Let me know if I’m correct.”  So that’s a good thing. He said, “I’ve got medical records, I’ve got this other stuff. The volume of it, seems not right for discovery. Let me know if you intended to do this.”  And promptly the next day and, you know Reynal defense counsel, defense counsel for Mr. Jones said, “Thank you Mark, there appears to have been a mistake in the file transfer. Please disregard the link and I will work on resending” and then signed Andino. 

So, that’s the exchange, but apparently, the link was not disregarded and of course, any of us could realize, well, how did he know what was in there if he hadn’t downloaded it so to say. Don’t read what you clearly already red seemed a little disjointed. So how could this happen?  Well, one is you leave it to delegate certain things to subordinates because we can’t do everything at a busy trial practice and you have to rely upon well-trained and supervised paralegal, secretaries, co-counsel and others to be able to support you as you prepare for a very high-profile trial. And apparently there was no subsequent sharing of a new link but importantly, no further efforts to comply with the Texas Snapback Rules. No, amended filing claiming privileged material was inadvertently shared in the ensuing 10 days and then really critically in my mind, no standing up at trial, when all of this was being brought out in front of a jury and saying, “I object, privileged”, or “I object may we approach the bench your honor.”  And saying “I strenuously object.”  Because any lawyer in trial practice has got to know that if something objectionable that hurts you comes out in front of a jury that hasn’t already been addressed by the court you have an obligation to promptly immediately jump up and assert a timely and clear objection.  

(00:15:07)

Else, you are at significant risk of waiving your right to object and waiving your right to exclude privileged matter. And I think that was what was most shocking to me is with all the rest of this and having had 12 days’ notice about the fact that this happened having failed to follow up, failed to give that promised amended link that when it does come up, Attorney Reynal sits on his hands and does not protect his record, that really shocked me. 

John W. Simek:  Fascinating stuff. I’m sure we’ll get in some more details here but before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson:  Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is Ripped from the Headlines:  Alex Jones and Inadvertent Waiver. Our guest is Craig Ball, our good friend. His passion and understanding how things work is just unbelievable and he uses it to teach others, he’s a compulsive tinkerer and brags that he can fix anything, but the human heart. After decades, trying cases as lead counsel, he then became a certified computer forensic examiner. Craig turned a lifelong fascination with technology into a unique law practice, limited to service as a special master in electronic evidence and discovery; subjects he teaches at the University of Texas School of Law and Tulane Law School. A prolific author and speaker, his articles on digital evidence could be found at craigball.com and his blog ballinyourcourt.com which I never miss one of. Okay, John. 

John W. Simek:  Well, Craig you mentioned a little bit earlier about the Texas Law, the Snapback Provision, but could you go into some little more detail about how is it possible that defense counsel, they failed to do anything about this 10-day rule that Texas has and what should he have done.

Craig Ball:  Great question John, I’ve heard all kinds of suggestions, I’ve had people suggest that it’s part of — what would be more appropriate than a conspiracy theory about Alex Jones? But a suggestion that somehow defense counsel was trying to get this in front of the jury or that there was some larger cabal and conspiracy. I don’t buy it by virtue of the exchanges between counsel 12 days prior. It would be very difficult for me to accept that this was something that defense counsel was trying to get in. 

I think the answer with respect to the parties is it’s very hard and very stressful to get ready for a high-profile trial and it just appears that the ball got dropped. That weekend, he said we’ll get back to you and then time went forward and what we would say in Texas is after having given the notice, plaintiff’s counsel lay behind the log, kept quiet about the failure to receive the subsequent or the promised linked to a scrubbed set. And then waited, tick, tick tick, while the clock ran on Texas Rules of Civil Procedure 193.3(d) so that he could pop up in a moment of drama or what Alex Jones called, the “Perry Mason” moment for those old enough to remember.

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— Perry Mason was another television era attorney who was so devastating in his cross-examination ability that he would get people to confess to the crimes right up on the stand. It was something which I have had happened once in my career, but how it could happen every week, I have no idea. At any rate, how can it happen?  

(Voice Overlap)

John W. Simek:  If you didn’t have Paul Drake(ph).

(00:20:01)

Craig Ball:  It happens through inattention. It happens to failing to train your staff properly. It happens due to a failure to use encryption to guard against the mistakes that are inevitable when one is producing large volumes of electronically stored information under stress, on tight time schedules. It could happen to anyone and because it can happen to anyone. It’s important that you understand the provisions of the law that allow you to snap it back, to claw it back and protect your client that you understand the parts of the law that require you to protect your record in order to preserve your right to object, not waive your privilege.

You’ve got to understand what is needed in terms of timely motions, timely filings, it just seems like all of that went out the window in terms of diligence and competence in those last two weeks. I hate to be pointing a finger at someone when I know I could have made some of those mistakes myself. But the confluence of so many errors is hard to imagine. I don’t think it’s going to result in a malpractice case because it would be very hard to prove causation and I don’t think it was done intentionally. Frankly, it was done so badly, I think that would require a level of guile(ph) that it would be hard to put past even a very skilled attorney. So, answer is it could happen to anybody and that’s the reason we need to have safeguards in place, fallbacks failsafes in order to prevent it from bringing about the kind of harm we saw.

John W. Simek:   Could you kind of boil it down then Craig, is more attention to detail perhaps?

Craig Ball:  Well, I mean, I think having established mechanisms, methods and I think one has to be aware that when you’re doing an online production, you need to have it done by someone who fully understands what privileges to give and how to give them in a granular way. So that you don’t just open up a repository that’s being used by your side to the other side. I mean, I don’t think you would invite opposing counsel back in the days of paper to come in and “hey, why don’t you root around in our files and see if there’s anything in there, you need.”  But it’s tantamount to that kind of thing when you’re sharing an online repository with co-counsel on your side and then you open it up too wide to your opponent. 

I think that when you’re dealing with things like highly sensitive psychiatric or counseling records, particularly when those records may be covered by protective orders and another jurisdiction, it’s important that you teach your staff about keeping that information encrypted at rest(ph) that you put in place a kind of two-factor mechanism. Yes, you produce it through an online repository but you do so in an encrypted format and then under a separate cover via separate email, say you give the credentials to open the encrypted information. 

These are the kinds of things that are second nature to you and Sharon, John, because we live in this milieu, but it is no longer tomorrow’s problem to deal in electronic discovery. It’s something that every lawyer needs to be conversant in, not a computer scientist by any means, but at least understanding that you can get yourself in serious trouble and really hurt the interest of your client by not understanding very, very simple, notions like encryption, privileges and the rules that govern the inadvertent production of privileged and confidential information.

Sharon D. Nelson:  I know that you are very unhappy to learn that plaintiff’s counsel thought he could brooch allegations of discovery in front of a Texas jury. Tell us what made you so unhappy and what it might mean for the case?

Craig Ball:  Thanks, I think it’s only fair to not just dump it all on defense counsel. I mean, I feel — I’ve got and I don’t think anyone has had any shortage of criticism for Attorney Reynal and his representation of Alex Jones vis-à-vis this inadvertent production and the failure to remedy it, the failure to object et cetera. But I do have some concerns about the way plaintiff’s counsel exploited it. To his credit Mr. Bankston whether we would all agree he was ethically obliged to do so or not, did give notice of the inadvertent production and did do so in fairly timely way. There was time to take advantage of the law by defense counsel and fix this or seek the protection of the court, of none of which happened apparently. 

(00:25:00)

But Texas is a different animal in so many things where the law and politics are concerned. And one of the things Texas is different about is the Texas Supreme Court has made it clear that unlike practice in Federal Court, no lawyer is allowed to bring issues of a particular kind of discovery abuse called “spoliation” to the ears of the jury. Issues of messing up and destroying or hiding electronic information or discoverable information, falls into a realm of the law called “spoliation” and the Texas Supreme Court, in a case called Brookshire Brothers, from probably 10 years ago now, made it clear that that’s inadmissible. And so, Mr. Bankston standing in front of the jury and springing it on everyone that his opponent messed up in discovery, I think that had there been a timely objection, that would have been extremely problematic. That might even have resulted in a mistrial or a reverse and remand on appeal. The failure to object, probably waives that that right to seek that reversal on appeal. 

But in that instance, I think Mr. Bankston got very lucky because in my judgement it wasn’t the proper way to handle that. I think showing that stuff as he did, hanging his hat on the failure to strictly comply with Rule 193.3 was a very risky proposition. He made it through unscathed apparently but I sure wouldn’t have recommended he go about it that way. I think he was more anxious to get that Perry Mason moment then he was observant of what the rules require and what Texas law requires.

Sharon D. Nelson:  Well maybe we’ve created a market here for people to look up and find these Perry Mason episodes somewhere so that they know what we’re talking about. 

Craig Ball:  Not to mention all of the stuff that you and John have published and spoken about not to mention all that I have published and spoken about these things. It’s not hard to find out how to do this better. Nobody’s expecting anyone to be a rocket scientist, but incrementally, getting to the base levels of competence isn’t going to require a tremendous effort on the part of practicing counsel.

John W. Simek: Well, before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson:  Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is Ripped from the Headlines:  Alex Jones and Inadvertent Waiver. Our guest is Craig Ball. Who after decades of trying cases as lead counsel became a certified computer forensic examiner and turned a lifelong fascination with technology into a unique law practice, limited to service as a special master in electronic evidence and discovery; subjects he teaches at the University of Texas School of Law and Tulane Law School. A prolific author and speaker, his articles on digital evidence can be found at craigball.com and his blog ballinyourcourt.com 

John W. Simek:  Craig, we’ve talked about the specifics of this one case but you know, you’re an educator, you teach at law schools, you do all these things. But what are our general takeaways, what have we learned from this?  And what can all lawyers learn as baselines when we’re dealing with this kind of information and certainly the disclosure of some things?

Craig Ball:  John, I think we’re going to be using this high-profile GAF (ph) as a teaching tool for the rest of this year and maybe years to come.

(00:30:04)

Because it incorporates issues of competence of misuse of electronic tools, poor communications, potential ethical breaches and ways to introduce evidence at Trial, the importance of objections. But let’s go right back even earlier than the things we’ve talked about. 

Today, when modern evidence is largely electronic, it behooves every lawyer to have the use of modern tools for review, we in the e-discovery world know about these review tools. There are standalone tools much more commonly online tools and so when you’re working with electronic evidence, you need to be using tools that are going to allow for the kinds of review. Not only for the detection of privileged content, of confidential personally identifiable information, protected medical records, trade secrets and the like — the ability to identify those, flag those to protect them. But more to the point the ability to review and produce only those things that are relevant and have been requested in a proper way. 

And I think we see that that element was absent here too, although it doesn’t appear that the entire contents of the phone we actually produced. It seems obvious that a large unreviewed mass of data was produced suggesting that the base level of review that we would have seen back in the days of paper, that is to say, attorney’s eyes on determining, is this something that I must withhold or is this something that is relevant and has been sought in discovery and that I must produce?  We don’t see much to indicate that that level of scrutiny was brought to bear. So, we’re going to have a lot of what should have been done and what I find most interesting about this case is that these are too small firm practitioners. 

I don’t mean to disparage either, I’m sure both with prestigious firms. But these aren’t the big white shoe, Wall Street international firms that act so arrogantly and you know, we got this e-discovery stuff down. These are people like me, they’re people like your business in a sense, John and Sharon and so this hits home. This isn’t what happened to these lawyers. Could happen to anyone of us. We rely upon — not fully trained, we delegate perhaps too much. We hope for the best and sometimes have to deal with the worst. And so, I think the takeaway here is not schadenfreude — in a sense if this happened to somebody else, isn’t it wonderful that it happened to someone who deserves a comeuppance like Alex Jones?  

This happened to both sides, both sides could have found themselves in severe ethical trouble, both sides could have hurt or maybe did hurt the interests of their clients. And both sides with just a little bit of deeper understanding of how to handle and produce and protect electronically-stored evidence, could have distinguished themselves as fine lawyers in this challenging arena, instead of becoming the butt of a lot of jokes and being poster children for how not to do certain things. I feel for them, I don’t want to be talking smack about my colleagues among the Texas bar but it is too great — a learning opportunity, too great(ph) a case study to sugarcoat what happened.

Sharon D. Nelson:  That’s a fine way to wrap up Craig and I want to thank you again. We both do for being our guest today. We have had friendship that dates back decades now. I hate to admit that but it does.

Craig Ball:  Yeah, back to (00:34:16).

Sharon D. Nelson:  Yeah, back to (00:34:18) is right. 

John W. Simek:  Not quite Perry Mason though.

Craig Ball:  No, but I do believe when we got into this business, the leading technology in law was Prometheans delivering fire. But that’s me, I’m old, you’re not old, you’re timeless.

Sharon D. Nelson:  Yes, yes, yes. But we did I think offer a lot of things for people to think about and as you say, you don’t really want to criticize too badly or too much and there but for the grace of (00:34:42). So, you know, it is a good lesson overall and it is a very teachable story and so we thank you for sharing it with us today, especially your very astute observations, we miss you. But thanks for being with us on the air today. 

Craig Ball:  Thank you, both. Good to talk to you.

(00:35:00)

John W. Simek:  And that does it for this edition of Digital Detectives and remember, you can subscribe to all the additions of this podcast at LegalTalkNetwork.com or on Apple Podcast. And if you enjoyed our podcast, please rate us in Apple Podcast.

Sharon D. Nelson:  And you can find out more about Sensei’s Digital Forensics, managed technology and managed cyber security services at senseient.com. We’ll see you next time on digital detectives.

Outro:  Thanks for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on legaltalknetwork.com and in iTunes.

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