How could mistaken release of cellphone data affect Texas lawyer for Infowars founder Alex Jones?
Infowars host Alex Jones arrives at the Travis County Courthouse in Austin, Texas, on July 26 with a piece of tape over his mouth that reads “Save the 1st.” He shook hands with his lawyer, F. Andino Reynal. Photo by Briana Sanchez/The Austin American-Statesman via the Associated Press.
Because of a mistaken cellphone revelation, the Houston lawyer representing Infowars host Alex Jones in a Texas defamation lawsuit could have exposed himself to malpractice claims by his client, legal disciplinary action by the state and sanctions in a separate case in Connecticut.
Reuters, Bloomberg Law (here and here) and Law & Crime have stories on potential legal problems for Jones’ lawyer F. Andino Reynal, whose paralegal mistakenly sent the opposing counsel a link to files from Jones’ cellphone. The opposing lawyer, Mark Bankston, used the information to impeach Jones.
Jones was sued for defamation in the Texas case by the parents of a child killed in the 2012 mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut. Last week, Texas jurors awarded the parents $4.1 million in compensatory damages and $45.2 million in punitive damages for Jones’ false claims that the massacre was a hoax.
Reynal said his paralegal mistakenly sent the link, and he told Bankston to “please disregard” when informed of the error. Bankston contended that response was insufficient under the Texas “snapback” law that allows lawyers to claw back evidence sent by mistake to legal opponents.
Randy Johnston, a Dallas legal malpractice lawyer, told Reuters that Jones could sue for malpractice, but he would have to show that the error resulted in a worse result at trial.
“Any complaint he would make is, essentially, ‘But for my lawyers, I would have been a successful liar,’” Johnston said.
Johnston also said Sandy Hook parents could seek sanctions against Reynal and Jones for failing to turn over texts regarding Sandy Hook before trial. When questioning Jones, Bankston said the cellphone data contradicted Jones’ claims that he didn’t have any Sandy Hook texts.
Johnston could also face possible disciplinary action, even if his paralegal made the mistake, according to Bloomberg Law. The Texas Disciplinary Rules of Professional Conduct hold lawyers responsible for actions of people they supervise, according to John G. Browning, a trial lawyer and a former Texas appellate court judge, who spoke with Bloomberg Law.
An amendment to the legal ethics rules in 2019 also requires lawyers to be proficient in technology or to work with someone with that expertise, Browning said.
Reynal and another lawyer, Norm Pattis, also face possible sanctions in another Sandy Hook defamation case against Jones in Connecticut because of the possible release of medical records.
In orders here and here, Judge Barbara Bellis of Waterbury, Connecticut, ordered Pattis and Reynal to show cause why they shouldn’t be referred to disciplinary authorities or sanctioned by the court for the “purported release” of the records concerning the plaintiffs in the Connecticut case. The release could violate a court protective order and state and federal laws, Bellis said.
Bankston confirmed to Bloomberg Law that the medical records were part of the cellphone data sent to him.
Pattis told Bloomberg Law in an email that he doesn’t think that discipline is warranted.
“Our office shared with other lawyers representing Jones discovery material. We believe we acted appropriately and did not violate a rule,” Pattis said.
Mary Mack, CEO and chief legal technologist at the Electronic Discovery Reference Model, said it is likely that the file link sent to Bankston didn’t have a name that would raise alarm bells.
“When the forensics software creates an image, the examiner can name it, and my guess is the name of that file was not ‘Alex Jones’ whole cellphone.’ It was probably something like ‘xyz1056t,’ and it could have been accidentally included in production,” Mack told Law.com.
Mack was surprised, however, that Bankston received the actual file instead of a converted PDF file. Native, original files are less secure than the converted file, which she referred to as a “Bates-numbered TIFF,” Law.com reports.
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