Suppose you’re sitting in your office and your associate excitedly runs in, yelling, “We got ’em! The other side just sent us the entire contents of their client’s cell phone, and oh boy are there some smoking guns!”
Alex Jones, seconds after being told that his lawyer mistakenly send a huge cache of texts to Sandy Hook families’ attorney:
“This is your Perry Mason moment” pic.twitter.com/f6byn6N6VA
— Bill Grueskin (@BGrueskin) August 3, 2022
“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. And when informed they did not take any steps to identify it as privileged.… And that is how I know you lied to me about not having any text messages about Sandy Hook.”
Some of the messages on Jones’s phone were responsive to discovery requests and should have been turned over in discovery. Other contents of his phone were messages between him an his attorneys and could have been shielded from disclosure by the attorney-client privilege. So how do the parents’ lawyers get to keep and use all of the messages? Let’s turn to the rules of evidence for the answer.
- the disclosure is inadvertent;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error.