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CNN reports on Alex Jones's case regarding Sandy Hook as follows:

Jones, who was the sole witness for the defense during the trial, did not fare well Wednesday as he was cross-examined by the plaintiffs' attorney, Mark Bankston.

In a remarkable moment, Bankston disclosed to Jones and the court that he had recently acquired evidence proving Jones had lied when he claimed during the discovery process that he had never texted about the 2012 Sandy Hook shooting.

Bankston said that Jones' attorney had, in an apparent mishap, sent him two years of cell phone records that included every text message Jones had sent.
Oliver Darcy, Sandy Hook family attorney exposes Alex Jones' dishonesty during brutal cross-examination, CNN, 3 Aug 2022.

I could be completely wrong, but my understanding is that, during discovery, Jones's attorney is (probably) required by law to hand over the cell phone records. Thus CNN's phrasing "an apparent mishap" seems bizarre to me: Jones's attorney was just obeying the law.

Question: Was Alex Jones's attorney handing over phone-record evidence a "mishap" or required by law?

Rebecca J. Stones
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    The mishap was "included every text message defendant had sent". There's supposed to be a distinction between messages responsive to the discovery request and those non-responsive. – Ben Voigt Aug 04 '22 at 14:58
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    To answer just the title: "Yes." He was legally required to hand over texts, but the whole reason for this trial is he has frequently not done as required. Therefore it's likely this really was a mishap. Both are probably true. – Joel Coehoorn Aug 04 '22 at 21:46
  • Further to @JoelCoehoorn's comment, it appears that in this case it was required by law but the intention had been not to comply with the requirement. – phoog Aug 06 '22 at 17:14

1 Answers1

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Was Alex Jones's attorney handing over phone-record evidence a "mishap" or required by law?

  1. The discovery phase, which concluded before the trial began, required Alex Jones to provide texts and emails mentioning Sandy Hook (among other things). He did not provide any and testified in writing and in court he could find none.

  2. On August 3rd 2022, day seven of the trial, plaintiffs' attorney Mark Bankston claimed he had obtained from Jones's attorneys a digital copy of Jones's cellphone on which there were texts and emails that mentioned Sandy Hook. He said this copy was mistakenly provided to him. Whether accidental or deliberate, this copy or its texts and emails mentioning Sandy Hook were not provided during discovery. Judge Gamble told the jury about the digital copy, "we don't know whether it was on accident or on purpose... but what we do know is that it wasn't properly turned over when it should have been." https://youtu.be/qhtz_6JKSh8?t=7658

A video clip of the part of the hearing in question, when Bankston begins asking Jones about the texts. https://www.youtube.com/watch?v=tpnSCIak5A8. Or this timestamp in a longer clip https://youtu.be/qhtz_6JKSh8?t=6821.

Mark Bankston for the plaintiffs, addressing Jones:

"Your attorneys messed up and sent me a digital copy of your entire cellphone, with every text message you 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."

The above quote begins 5mins into the first clip or this timestamp in the longer clip https://youtu.be/qhtz_6JKSh8?t=6830).

After the texts, Bankston asked questions about emails not being turned over... Jones had sworn he didn't even use email. Bankston showed him emails that appeared to be written by Jones. "I must have dictated them" said Jones.

Judge Gamble told the jury about the digital copy, "we don't know it was on accident or on purpose, but what we do know is it wasn't properly turned over when it should have been." https://youtu.be/qhtz_6JKSh8?t=7665

Bankston told journalist Dan Solomon the phone copy was put in a Dropbox the parties were using to exchange materials. Bankston did not believe it was put there deliberately and notified Jones's attorneys. Apparently Jones's attorneys did not respond. Under Texas law they had ten days to assert privilege or say the material was put there by mistake, Rule 193.3(d) - as of August 3rd Bankston was legally free to read and use the material.

(There is some gossip online about what was supposedly heard on 'hot mic' between Reynal and Bankston, I haven't heard it myself and have no timestamps or clips. I do think I heard Jones, after leaving the witness box, ask Reynal "they got my text messages?")

[edit]

Incidentally, this isn't the first time that Jones / his attorneys failed to comply with discovery orders in relation to these Sandy Hook cases - a number of sanctions and default judgements have gone against him for that.

Indeed this damages phase is the result of the default judgment against him in September 2021 for failing to comply with discovery:

"The Court find that Defendants unreasonably and vexatiously failed to comply with their discovery duties. The Court finds that Defendants' failure to comply with discovery in this case is greatly aggravated by Defendants' consistent pattern of discovery abuse throughout the other similar cases pending before this Court."

[edit 2]

On August 4th 2022 Jones's attorneys have filed an emergency motion that seems to settle the issue of whether the provision of all the material was a "mishap": they say it was "inadvertently" supplied.

text of the motion

They claim they promptly informed plaintiffs' attorneys about the mistake but the latter used the material anyway in violation of privilege, procedure and the court's protective order. Now Twitter lawyers are arguing about whether the language used by the defence was adequate to engage the rules mentioned above.

But this doesn't seem to resolve the issue of why the material demanded for discovery was not supplied for discovery or why Jones testifed he could not find such material.

Judge Gamble denied the request for a blanket protective order to seal the record of the text messages and denied the motion for mistrial. https://www.youtube.com/watch?v=dKbAmNwbiMk

mtlynch
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Lag
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    So the contention is that they tried to hide evidence, but screwed up and accidentally disclosed it later? – Barmar Aug 04 '22 at 14:43
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    @Barmar It's a couple of things: Failing to provide the relevant records during discovery, and Jones then testifying that those relevant records never existed. – jeffronicus Aug 04 '22 at 14:50
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    @jeffronicus I suppose, although they seem like two sides of the same coin -- if you're going to deny their existence, of course you won't turn them over. – Barmar Aug 04 '22 at 14:53
  • @Barmar One is at least a procedural failure on the part of the legal team; the other is, potentially, perjury. – jeffronicus Aug 04 '22 at 15:00
  • "One is at least a procedural failure on the part of the legal team" I can see how if it was produced by accident, maybe it was lost and they didn't know where it was, i.e. Jones made a copy of his phone for the suit and then erased it. And if he was called to testify by the opposing counsel, it may not be suborning perjury. But in general lawyers have a duty to the court to make sure they have truthful information. The defense lawyers already got into trouble in discovery because of Jones's lies (too sick to be deposed, bad doctor's note, but still did a 4 hour show) – Jason Goemaat Aug 04 '22 at 16:22
  • I could easily see sanctions apart from anything Jones has to pay for himself or harsher discipline coming for his lawyers if they made any false representations to the court. – Jason Goemaat Aug 04 '22 at 16:25
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    What mechanisms exist to ensure that a respondent to such a discovery request doesn't simply omit or even delete inconvenient records even that are responsive? – JosephCorrectEnglishPronouns Aug 04 '22 at 16:49
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    @JosephP. That is called spoliation, and if discovered the penalties can be much greater than just adverse inference. In many cases even criminal. There are ways that it can be deduced, one of the most common is the side receiving the documents already knows in advance specific documents that should be produced based on independent production. For example, they have received a relevant e-mail from the recipient, but the sender didn't produce it. Or a document in their possession makes reference to other documents that were not produced. – Chuu Aug 04 '22 at 18:33
  • @jeffronicus I saw yesterday that Alex Jones' ex-wife is also very interested in this copy of his phone. So this "mistake" has implications outside of this particular trial. – Peter M Aug 04 '22 at 20:18
  • Wait, did the opposing lawyer pull a Pheonix Wright by pulling out some surprise evidence? I thought that sort of stunt was supposed to be banned from real court rooms. – nick012000 Aug 04 '22 at 22:47
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    @nick012000 I understand that having notified the defense of the potential error means that proper procedures were followed. If the defense failed to do anything to correct or limit the matter, or failed to inform their client, that's on them and them alone. Defense has filed a motion asserting they did do this, but it was ignored. Whether the judge was aware of any of this before this moment in court, I don't know for certain. A separate Q&A about this would probably be warranted and good. – zibadawa timmy Aug 05 '22 at 03:46
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    @nick012000 I don't know the rules. But defense counsel had the opportunity to object and made no objection to the court admitting particular texts and emails into evidence (note there was no motion to admit the "entire digital copy"). Jones had been testifying as to his supposed compliance with discovery, the supposed absence of this material and his company's supposed financial position - testimony that these particular texts and emails seem to contradict. – Lag Aug 05 '22 at 12:22
  • @JosephP. sounds like possibly its own question – user253751 Aug 05 '22 at 14:27
  • @nick012000 Alex Jones himself told the prosecuting attorney that he's having his "Perry Mason" moment. And yes it is very rare to actually see play out like this. The defense should have been aware, as the prosecution told them they have 10 days to respond to that evidence being handed over, but the defense did nothing. So, you end up actually surprising the defendant, on the stand, because of their own (I assume) ineptness and legal apathy. (Jones has been though quite a few defense teams). – BruceWayne Aug 05 '22 at 14:59
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    Since his legal team was required by law to supply some of these emails, and some lawyer would have known this and would have known that this was illegal, is there any chance that this wasn’t quite accidentally? – gnasher729 Aug 05 '22 at 18:20
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    fyi @BruceWayne We know that defense council was aware of the file transfer. the defense responded to plaintiff council's notification, per defense council's own statements during an an emergency motion hearing to suppress the materials. Their response, however, was a long the lines of "please disregard" and carried no obligation for plaintiff's council. – Michael Aug 05 '22 at 22:19