How to Avoid Alex Jones’s Billion Dollar eDiscovery Mistakes

Cat Casey
Cat Casey

How to Avoid Alex Jones’s Billion Dollar eDiscovery Mistakes

Polarizing media personality, Alex Jones of Infowars infamy, now carries the dubious honor of receiving one of the largest civil verdicts against an individual in US history. This week a Connecticut judge awarded the plaintiffs, the families of eight victims killed in the 2012 Sandy Hook school massacre, $965 Million in compensatory damages alone before any assessment of either punitive damages or attorney’s fees. This is in addition to the nearly $50M awarded by a Texas jury in August of this year for a similar claim.

At more than double the next two largest defamation settlements, Dow Jones & Co’s 1997 verdict of $222.7M and Michael Gill’s 2017 Billboard defamation damages of $274M, Jones’s nearly billion-dollar verdict should be a warning for many legal professionals about the importance of defensible Electronic Discovery (eDiscovery).

This blog looks squarely at the issue of eDiscovery and leaves the uglier merits of the case to others to cover. Frankly, there is a myriad of things that Jones and his counsel did (or did not do) a thousand percent wrong and likely contributed to the damages exceeding what the family requested by 7-fold.

Understanding and avoiding these massive eDiscovery missteps might be the difference between a favorable or unfavorable outcome... or at minimum may help you ensure you or your client is not facing damages with 9 zeros!




1) Don’t be THAT Dumb

Seriously. When a writer for Law & Order quips that this case was too outlandish for fiction, because “on Law & Order we wouldn’t have let a lawyer do something that dumb,” the scale of the incompetence comes into sharp relief. This is a weighty critique from a show that had an episode dedicated to murder by a banana in a very uncomfortable place.



2) Measure Twice Cut (email) Once

In this epic fail, the likes of which we have rarely seen in eDiscovery, Jones’s counsel, F. Andino Reynal, mistakenly released Jones’s ENTIRE cell phone contents for the last 2 years to opposing counsel, Mark Bankston.

Reynal’s cell phone “mess up” could easily have been avoided had the attorney conducted some basic production QC or at minimum double-checked which file he had attached to the email. When you are dealing with a wealth of personal, medical, and potentially incriminating evidence, additional diligence and validation can go a long way.

The “mistake” made by Jones’s legal team should serve as a cautionary tale to all legal professionals to revisit the first rule of producing documents to opposing counsel: ensure you know what is in your production before it leaves your office. 

3) NEVER Throw Your Paralegal Under the Bus

When pressed on cross examination about the 2 years of text messages, metadata and other cellphone data, Jones’s lawyer did the unthinkable and tried to minimize the inadvertent disclosure from his client’s mobile device and sought to shift blame to his paralegal.

“It was eight months of text messages, from mid-July 2019 to early 2020,” he said. “eDiscovery is complicated, and the stakes are very high when your team makes an inadvertent mistake.”

Unfortunately for Reynal, while pointing the finger on the stand may have felt good, it did little shift blame or responsibility. In the state of Texas, Attorneys are responsible under the Texas Disciplinary Rules of Professional Conduct for both their own errors and those of whom they supervise.

While many case teams farm out eDiscovery grunt work to more junior associates or members of the case team without an Esq. after their names, the supervising attorney has the ultimate duty to ensure the accuracy and defensibility of the resulting production. In a class action this high profile, the production of personal text messages from the person device of a celebrity like Alex Jones should never have faced inadvertent disclosure, period.


3) Be Nice to the Judge

While not every one of you or your clients has the highly visible platform Jones possesses, refraining from publicly denouncing or making laser eyed memes with the word “tyrant” super imposed above the judge of your case is likely (definitely) the best course of action. This tidbit is less a question of case law or ESI protocols, and more one of common sense.

It is best to remember that opposing counsel has access to public social media accounts throughout the trial and that they might bring any such communication to the judge’s attention. The legal system is certainly not as blind as lady justice might have you believe, and the very human member of the judiciary hearing your case might take such behavior personally.



4) Get (technically) Competent

When dealing with complex discovery requests and ESI that no longer fit within the four corners of a traditional documents, ignorance is not bliss. Deferring completely to junior staff does not ameliorate your responsibility for the final production’s accuracy and thoroughness and claiming lack of knowledge no longer flies. Basic competence around legal tech is increasingly an ethical duty recognized by district court, federal court, legal associations, and the regulators alike.

The Texas supreme court, in Misc. Docket No. 19-9016, amended Paragraph 8 of the comment to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, which deals with competent and diligent legal representation. The amended comment stipulates that maintaining proficiency and competence in the practice of law includes knowing “the benefits and risks associated with relevant technology.”

Texas lawyers may not need to “learn to code” but they certainly cannot blame a massive mistake relating to legal technology on the legal technology being too “complicated.” Case teams lacking this knowledge should at minimum hiring a legal services organization or a litigation support expert to help navigate the technical challenges of discovery.



5) NEVER Give the Whole Enchilada

I suppose this point should go without saying, but in a case where law and order says the premise is. too “dumb-dumb” to merit a “dun-dun” episode, I will say it anyway... never give opposing counsel the whole enchilada. Mobile devices are a wealth of information in terms of the content of emails, app messaging devices, pictures, metadata, phone logs, geolocation and more.

Legal Technology Tools like Cellebrite allow you to conduct collections in a targeted manner and review platforms like Reveal or analytic tools like Brainspace enable you to quickly identify responsive data, redact or remove privilege or confidential healthcare data and whittle down your production set precisely.

Failure to take these steps is tantamount to negligence these days. Looking to both the ABA’s model rules and state bar association rules ones like the Texas Disciplinary Rules of Professional Conduct, it is clear that there is an ethical duty for practitioners to understand these tools and the value of leveraging them.

6) If you Make an Inadvertent Mistake, Snap it Back

After hitting send on an email containing the wrong production to opposing counsel, Jones’s attorney merely replied all with a hastily typed “please disregard.”

12 days later this Perry Mason worthy exchange occurred while Alex Jones was on the stand: Mark Bankston asked Jones if he was aware that 12 days prior, his lawyers "messed up and sent me an entire digital copy of your entire cell phone 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?"

Jones’s counsel hastily drafted an emergency motion to seal the inadvertent disclosure and prevent it from being used in the trial, but this was too little too late. Opposing counsel, said that the words “please disregard” had created “no legal duty on me whatsoever,” adding that he had been no under obligation not to look at the documents. And the judge agreed.

In Texas, there is a clock that starts the first time that counsel is aware of an inadvertent disclosure of this nature. Reynal had 10 days to invoke “snapback” non-waiver protections in Texas and failed to do so. All Mr. Reynal had to do was “identify the material or information produced and state the privilege asserted,” and Mr. Bankston would be required to “promptly return the specified material or information” and would be prohibited from using it in court

Simply put, Jones’s legal team failed to follow the procedure outlined in Texas Rule of Civil Procedure 193.3 for “snapping back” inadvertently produced materials after Jones’s attorney recognized that there was an issue with the production but failed to rectify the claimed “error.”


7) Object, Object, Object

When all else fails, remember your basic legal education and object! eDiscovery mistakes will happen whether you are in a premier law firm, fortune 50 in-house counsel or just have hung up a shingle, it is your job to protect the record and your client when they do. Craig Ball noted that “any trial lawyer worth his salt understands the duty to protect the record by timely objection” and that this was simply “rookie” stuff – “you protect the record by timely objection or waive grounds for that objection.”


The eDiscovery Gift that Keeps on Giving

This case truly is the gift that keeps on giving for the legal industry that want to see what not to do with modern eDiscovery. As humanity is increasingly living, working, and playing in the digital world, legal professionals must understand the risk and impact things like cell phones, messaging applications and more can have on the outcome of. case.

There is an ethical duty of technical competence for a reason and practitioners who do not want to be facing sanctions or damages worth more than the Kardashians must take note and have the right legal tech and technology providers to help navigate this shifting digital Dataverse!