This post was not written by ESI Survival Guide.
Source: Original Article
Yesterday, I posted on the inadvertent production of privileged texts and other matter in the Alex Jones defamation trial. In the day that’s passed, the Austin, Texas jury returned a compensatory damages verdict of $4.1 million dollars, and minutes ago, assessed punitive damages of $45.2 million. More has come to light overnight respecting the lawyers’ errors, confirming what I’d only been able to speculate about yesterday. Now, I want to add a point about features of Texas law that very well could determine if there will be a mistrial or a new trial on appeal.
In yesterday’s post, I explored the Texas rules of procedure and evidence permitting a party who unwittingly produces privileged data to “snap back” that evidence by belatedly asserting its privileged character and demanding return (Tex. R. Civ. P. Rule 193.3 and Tex. R. Evid. Rule 511). I also touched on counsel’s ethical duty to notify an opponent who has mistakenly supplied material relating to a lawyer’s representation of a client (ABA Model Rule of Professional Conduct 4.4b).
Concluding yesterday’s post, I posed questions:
- Was a new link to a collection scrubbed of privileged content ever supplied?
- Why didn’t defense counsel promptly object at trial and protect the record?
- Will we next need to discuss the crime/fraud exception to attorney-client privilege?
One of these now has an answer: Based on remarks of counsel at a hearing on Defendants’ Emergency Motion for Enforcement of Protective Order dated December 2, 2021 (filed August 4, 2022), the updated link promised was never supplied. Further, no subsequent assertions of privilege or other action pursuant to Tex. R. Civ. P. Rule 193.3 were made by Defendants. It appears the ball was dropped, prompting one to wonder whether defense counsel hoped he would wake up and find it was a bad dream (like–DATED REFERENCE WARNING–Pam seeing Bobby Ewing in the shower). In the run up to a high-profile trial, it’s more likely it just slipped through the cracks.
Since defense counsel Andino Reynal clearly didn’t expect the text messages to emerge at trial, it remains a conundrum why defense counsel failed to object when they came up and were then shown to the jury. Take it from someone who spent decades trying cases in Texas courts and another decade teaching electronic evidence at Texas’ premier law school (whaddya mean “which one?“), when improper evidence that hurts your client is mentioned to a jury panel, let alone proffered for them to see, counsel must leap to his feet and assert a prompt, clear objection. There are exceptions to this, but any trial lawyer worth his salt understands the duty to protect the record by timely objection. Even if you’re loath to appear obstructionist by objecting, you nevertheless rise and say, “Objection. May we approach, Your Honor?” Then, quietly make your record at the bench.
This is rooky stuff: You protect the record by timely objection or waive grounds for that objection.
While I’m pointing fingers, I’m wondering why on Earth plaintiffs’ counsel Mark Bankston thought he could broach allegations of discovery misconduct in front of a Texas jury?!?
This point hasn’t come up in any reporting I’ve seen but the Texas Supreme Court takes a dim view of litigants airing the dirty linen of discovery abuse to jury panels. Texas’ approach is in marked contrast to Federal practice where judges let juries hear questions of spoliation. In Texas, as a matter of law, the trial judge determines whether spoliation has occurred and what sanctions to impose. Evidence of spoliating conduct is inadmissible in Texas. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)
An argument can be made that spoliation is one thing and telling the jury that opposing counsel “messed up” and supplied documents meant to stay hidden is something else. Perhaps; but, I’ll bet my boots there was a pretrial order on a Motion in Limine barring mention of discovery disputes without first seeking leave of court. Too, the Texas Supreme Court’s concern that juries may be prejudiced by discussion of matters reserved exclusively to the Court’s determination would seem to hold true for telling juries that opposing counsel “messed up.”
There’s been a lot of digital ink devoted to lambasting defense counsel for his mistakes, but in his fervent (and understandable) eagerness to tag Alex Jones, it remains to be seen if Plaintiffs’ counsel overstepped and the whole damages phase must be retried. If so, UGH, just UGH!