“Sandy Hook lawyers say Alex Jones’s attorneys accidentally gave them his phone contents”

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Brittany Shammas and Kim Bellware reported that Alex Jones attorneys accidentally gave up his phone’s contents, Sandy Hook lawyers say – The Washington Post  (Aug. 3, 2022).

The Post reports that:

The legal team representing Infowars founder Alex Jones inadvertently sent the contents of his cellphone to a lawyer representing the parents of a child killed in the Sandy Hook mass shooting, the parents’ lawyer said in court Wednesday.

The apparent blunder, revealed by attorney Mark Bankston as Jones was on the stand in the damages phase of his defamation trial, unearthed previously undisclosed texts about the massacre and financial information about Infowars. Bankston, who represents Neil Heslin and Scarlett Lewis, parents of 6-year-old Jesse Lewis, told the far-right purveyor of conspiracy theories that his attorneys had “messed up and sent me an entire digital copy of your entire cellphone.”

“And that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook,” Bankston said.

“This is your ‘Perry Mason’ moment,” Jones responded, a reference to the fictional lawyer famed for his stunning 11th-hour courtroom reveals. “I gave them my phone.”

Bankston noted Jones had testified under oath that he personally searched his cellphone for Sandy Hook text messages and was unable to find any. Bankston asked, “You know what perjury is, right? I just want to make sure you know before we go any further.”

Jones denied lying, saying, “I’m not a tech guy.”

The article continued:

Bankston also asked about his emails. He noted that Jones had testified he did not have any about Sandy Hook because he doesn’t use email. Jones said in court, “Yes. I personally do not get on the internet and sit there and use email. I’ve never sent emails myself. Because I don’t like it. I can’t stand it. There’s too many of them.”

The attorney then displayed emails he said Jones had sent to lawyers, staff and others about business operations.

He zeroed-in on messages about Infowars financial information, which he said contradicted Jones’s previous statements about the amount of money he made.

The Post also reportsed on other discovery issues:

[Judge] Gamble told jurors that what the lawyers say is not evidence, adding that without evidence, it is not yet known whether the contents of the phone were given to the Sandy Hook parents’ attorney by accident.

“But what we do know,” the judge said, “is that it wasn’t properly turned over when it should have been.”

Little needs to be written about this.  See 40th State Adopts a Duty of Technological Competence – Is It a Good Idea?  and Discovery of Steps Taken to Implement a Litigation Hold is Permitted.

One report states Alex Jones’ attorneys ‘messed up,’ sending 2 years of texts to Sandy Hook family lawyers (fox29.com)(“The legal team representing Infowars founder Alex Jones accidentally sent years’ worth of their client’s text messages containing contradicting claims regarding the Sandy Hook Elementary School mass shooting to the attorney representing the family of one of the victims.”).

There is an appropriate Damage Control Method.  In short, “[I]t is no longer amateur hour.”

Saying “I’m not a tech guy” is no excuse.  Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was.  In a similar context:

At the hearing, Sklar’s counsel stated, “I don’t even know what ‘native format’ means.” The court responded: “You’ll have to find out. I know. Apparently [Toshiba’s counsel] knows. You’re going to have to get educated in the world of electronic discovery. E.S.I. (electronically stored information) is here to stay, and these are terms you’re just going to have to learn.”

Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853, 160 Cal. Rptr. 3d 557, 563 (2013) (emphasis added).  The “I didn’t know” argument is a leaky boat.  Fifteen years ago, Bernard J. Ebbers, former CEO of Worldcom, said at his trial: “I don’t know about technology and I don’t know about finance and accounting.” K. Belson, “Ebbers Mounts an ‘I Never Knew’ Defense,” New York Times (March 1, 2005).  Ebbers was convicted.
For other stories, see, e.g., After Alex Jones’ lawyers accidentally leak years of emails, Infowars financial documents are revealed in court (nbcnews.com)Alex Jones Confronted at Trial With Texts Showing Evidence of Deception – The New York Times (nytimes.com)(“’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?’ the parents’ lawyer, Mark Bankston, asked Mr. Jones.”), and, Alex Jones’ cellphone records mistakenly shared by attorney with Sandy Hook legal team, lawyer says (click2houston.com).  For an August 10, 2022, EDRM Webinar by Craig Ball titled “Take my whole cell phone please (said no one),” see Webinars – EDRM