Alex Jones’s well-deserved reckoning

The first round in Alex Jones’s well-deserved reckoning was recently completed in an Austin, Texas, courtroom. There is more to come, with much unhappiness in store for Jones. Thanks to a stunning blunder by his attorney, there may also be trouble for some of his Trump-adjacent friends.

In the Texas trial, the conspiracy monger was hit for a total of over $45 million in compensatory and punitive damages in favor of Scarlet Lewis and Neil Heslin, the grieving parents of a Sandy Hook school shooting victim. Jones had repeatedly libeled them as “crisis actors” who only pretended to mourn a non-existent son. (The punitive damages will be reduced under Texas law.) 

One of the most dramatic moments in the trial came when Lewis confronted Jones from the witness stand. “Jesse was real,” she rebuked him. “I am a real mom.” Heslin fought back tears when he described holding his dead son’s body.

The monetary award will affect only Jones and his various dummy corporations. Much broader repercussions may follow from the disclosures found on Jones’s cell phone, due to the inattention (to say the least) of his lawyer.

Here is how it happened: Throughout the pretrial discovery proceedings, Jones insisted that he had no emails or texts relating to Sandy Hook. He refused to produce his phone for plaintiffs’ attorney Mark Bankston, claiming to have searched it himself for relevant evidence. Jones’s noncooperation was so pervasive that the judge defaulted him on liability, so the only issue for trial was the extent of damages.

Jones had, however, given the phone to his attorney, Andino Reynal, who copied its files, a routine step in contested litigation. Then Reynal “messed up” by unintentionally sending a “file transfer link” to Bankston, with a “digital copy of [Jones’s] entire cellphone with every text message” he’d sent for the past two years, including some about Sandy Hook.

Bankston quickly recognized that the sensitive files had been sent inadvertently. Such unintended disclosures have become increasingly common in the digital age, now that voluminous data can be transferred with a single click.

Many states, including Texas, have therefore enacted “claw-back” or “snap-back” provisions, allowing attorneys to require the destruction or deletion of inadvertently disclosed materials. Texas law gives sending lawyers 10 days to act, beginning when they discover the mistake, but it applies only to legally privileged documents and communications.

Bankston was holding a bonanza of potentially compromising information, but he needed to make sure the 10-day clock was running. He immediately wrote to Reynal, informing him that the disclosure seemed “to contain a lot of confidential information,” adding, “my assumption is that you did not intend to send us this. Let me know if I am correct.”

In a foolish economy of words, Reynal tersely replied, “Please disregard the link and I will work on resending.”

It was too late for Bankston to disregard the link, even if he wanted to, and the Texas snap-back – set out in the Rules of Civil Procedure and Rules of Evidence – applies only to privileged communications, not to everything disclosed. There is no snapping back “intimate messages” between Jones and Roger Stone, or texts with Tucker Carlson and other disseminators of former President Trump’s “Big Lie.”

Several states have an additional ethics rule, requiring the receiving lawyer to abide by the sender’s instructions. Many others follow the American Bar Association’s Model Rule of Professional Conduct 4.4(b), requiring notice to the sender, with a comment suggesting that a receiving lawyer may “voluntarily return such a document or delete electronically stored information.”

Texas, however, has no ethics rule at all covering the receipt of inadvertently disclosed material. Bankston had no duty even to inform Reynal of his mistake – though he wisely chose to trigger the 10-day clock – and no obligation to “disregard” Jones’s cell phone data once the grace period expired.

Fatefully, Jones’s testimony was scheduled for 12 days after the snap-back notice to his lawyer. That set the stage for a devastating cross-examination, in which Bankston confronted Jones with his blatant lies during discovery.

Jones began sweating when Bankston informed him that his text messages had been given to plaintiffs’ counsel, and his defense lawyer “did not take any steps to identify it as privileged or protect it in any way,” pointedly adding, “And that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook.”

The consequences have only begun. Jones may be prosecuted for perjury in Texas. He is also facing three more Sandy Hook trials, one in Texas and two in Connecticut. His lies in Lewis and Heslin’s case will be admissible against him in those trials. Jones’s strained last-minute “apology,” finally conceding that the Sandy Hook tragedy was “100% real,” is unlikely to do him much if any good before future juries.

Crucially, Jones’s texts were requested by the House Select Committee on the Jan. 6 Insurrection, and Bankston complied. Jones was deeply involved in organizing the pro-Trump rallies in Washington on Jan. 5 and 6, in direct communication with the Trump camp. He was deposed by the Jan. 6 Committee, but he kept mum, taking the Fifth Amendment more than 100 times. It is possible that his texts and emails will reveal whatever incriminating facts he may have been withholding. (Jones predictably insists there is nothing revelatory on the phone, but his record for reliability is not impressive.)

It will be exquisite poetic justice if the nation’s foremost pusher of bogus conspiracies ends up exposing a real conspiracy to subvert the 2020 presidential election. And more ironic still because Texas’s loose legal ethics rules made it possible.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of “Modern Trial Advocacy” and hundreds of other articles and books on law practice and legal ethics.