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Importance of Discovery: Alex Jones Defamation Trial

*The views expressed in this article do not represent the views of Santa Clara University.

Credit: Jared Holt | Wikimedia Commons

Alex Jones' defamation trial concluded on August 5 in Texas, where the court awarded victims with a $45 million verdict. However, the trial took a turn when Jones' attorney was faced with his errors during discovery.

Rules of Discovery

Discovery is the formal process of exchanging information between the parties where parties are made aware of what evidence may be presented at trial. Generally, anything reasonably likely to lead to discoverable evidence can be sought through discovery. This process was designed to prevent an ambush at trial, leaving the other party no time to dispute the information. Discovery has a broad scope, and courts tend to interpret the rules governing the process generously. Failing to cooperate with a legitimate discovery request can result in sanctions such as dismissing a claim or adverse inference at trial.

A standard tool of discovery is known as a subpoena. A subpoena is a writ, or written order, issued by a court compelling a person to testify or produce specific physical evidence such as records or documentation. However, there are limits placed on the discovery under Texas Civil Procedure rules. For example, under Texas Civil Procedure rule 192.4, a provision taken from FRCP 26(b)(2)(C), the party has the right to decline discovery if it is unreasonable or outside of the scope of discovery. On the other hand, the party may seek a protective order that governs how parties will manage confidential information produced in litigation. This allows the parties to set limitations on who can see the data and how it would be used in a motion, deposition, or court proceeding.

Outside the rules of discovery, it's in the best interest of litigation to request a Federal Rule of Evidence 502(d) order, which is the Texas State Court equivalent to Tex. Evid. R. 511(b)(3) order, before discovery begins. This order helps avoid any waiver of privilege when one party produces documents that would fall under privilege or work product. In addition, this allows parties to maintain the right to challenge the protected nature even when accidentally produced during discovery.

Discovery in Jones' Case

On August 3, the attorney representing the victim revealed that Jones' attorney had mistakenly produced many files. These files included attorney-client privileged communications and records relevant to the January 6 investigation. During his cross-examination of Jones, he presented text messages about the events in litigation. Those text messages were taken from the files mistakenly produced by Jones' attorney. Jones and his attorney had represented to the court and the opposing counsel that those messages did not exist and were not originally produced during discovery. The attorney for the victims made Jones' attorney aware quickly after they were accidentally sent, but he failed to take any steps to identify it as privileged or protected.

These inadvertent disclosures are not rare during litigation; most states have provisions that allow counsel to request privileged content back within a set time, even without a 502(d) order or Tex. Evid. R. 511(b)(3) order. For Jones' case in Texas, the attorney has ten days to rectify his mistake, known as the Texas "Claw Back" provision. However, Jones' attorney did not and relied solely on his reply to the lawyer where he asked him to "disregard," which was not legally sufficient to exclude the discovery. Moreover, Jones' attorney failed to provide a replacement for the link and never responded beyond the "disregard" message.

It was not until the following day after the evidence was presented in trial that Jones' attorney tried to rectify his mistake by filing an emergency motion for a protective order. where he also sought a mistrial. Unfortunately, these measures were insufficient, and the jury ultimately found Alex Jones liable for damages. Jones' attorney is now facing disciplinary actions and sanctions for his errors.

Facts of the Case

The issue in this case circles around Alex Jones' statements regarding the Sandy Hook mass shooting incident where gunman Adam Lanza left twenty children and six staff dead in December of 2012. In April of 2013, Alex Jones, on his talk show, Infowars, described the events of Sandy Hook as a "government operation" with an "inside job written all over it," the purpose of the "hoax" to take away the right of gun ownership. This was just one of a dozen instances where he and Infowars contributors alleged conspiratorial claims about the tragedy.

His inflammatory commentary invoked vile conduct on the part of his listeners. Many victims' relatives suffered severe abuse through threats and harassment through various means. Mark Barden, the father of one of the deceased, testified that the grave of his seven-year-old son was urinated on by Infowars supporters, who threatened even to dig up his son's coffin. Erica Lafferta, the daughter of Sandy Hook Principal Dawn Hocksprung, who also fell victim to Mr. Lanza's onslaught, was repeatedly mailed rape threats to her home. In the social media sphere, Alex Jones' conspiracies spread like wildfire, enthralling many individuals who spread the conspiracies as the "truth."

These events enraged survivors and relatives of the deceased from the tragedy alike. On April 16, 2018, three parents of Sandy Hook victims filed two separate lawsuits against Alex Jones in Texas state court. Later, on May 23, 2018, fourteen relatives filed suit against Jones in Connecticut state court. Finally, on October 31, 2018, another Sandy Hook parent filed a lawsuit against Jones in Texas state court.

In September of 2021, a Texas judge entered a default judgment against Jones for defamation due to the repeated disregard of court orders and adherence to discovery procedures. In November of 2021, the judge presiding over Connecticut entered a similar judgment due to similar conduct by Jones. In April of 2022, five shell entities owned by Jones filed for bankruptcy protection in Texas in an attempt to stall litigation. However, subsequent intervention by the Sandy Hook families caused the dismissal of the claim.

On August 5, 2022, a Texas jury found Jones, including his entities, and ordered him to pay two Sandy Hook parents $49.3 million in damages. On October 12, 2022, a Connecticut jury ordered Jones to spend at least $956 million in compensatory damages to a number of the families of the victims of the Sandy Hook tragedy.

Current Status of the Litigation

On October 12, 2022, Alex Jones was ordered by jurors in Waterbury, Connecticut, to pay $965 million to Sandy Hook Elementary School shooting victims' relatives and an FBI agent for loss and trauma endured due to comments about the tragedy. The damages will be divided among 15 plaintiffs as part of the defamation case against him, ranging from $28 million to $120 million. Jones, who was not present when the damages were read aloud in the courtroom, repeatedly stated on his show that the trial was "all made up" and was a "show trial." The jury also stated that punitive damages are warranted.

On October 12, 2022, Alex Jones filed a motion to set aside the verdict, thus seeking a new trial pursuant to Connecticut General Statutes section 52-228(b) and Practice Book section 16-35. Jones claims in his motion that the pre-trial motions and evidentiary rulings resulted in "…a complete abdication of the trial court's role in assuring a fair trial and that the amount of the compensatory damages award exceeds any rational relationship to the evidence officered at trial." Connecticut General Statutes section 52-228(b) would allow for a decrease in a judgment by remittitur if the judgment amount were made in error. Practice Book section 16-35 mandates that motions for remittitur, such as those filed here, must be filed within ten days after the verdict is accepted. Jones' attorneys, Norman Pattis and Kevin Smith, also filed a memo alongside the motion for a new trial, arguing that a default judgment against Jones was invalid and the weight of the evidence brought before the court at trial did not correspond with the high damages the plaintiffs were awarded. At the time of the writing of this article, there have been no further updates regarding Jones' motion for remittitur.

On November 4, the trial court held a hearing to discuss punitive damages; punitive damages are generally limited to attorneys' fees for defamation and infliction of emotional distress cases. Both sides agreed that the families' contract with their attorneys allows the attorneys to receive one-third of the compensatory damages as attorney's fees, which would be roughly $322 million. Judge Bellis ultimately determines the punitive damages; however, she could approve punitive damages for the amount of the plaintiff's legal fees, which would increase the total Jones would have to pay to roughly $1.26 billion. Jones' lawyer, Norm Pattis, asked Judge Bellis not to award punitive damages under Connecticut's Unfair Trade Practices Act (CUTPA). Under the CUTPA, there are no limits for punitive damages; instead, the court has discretionary authority regarding the number of punitive damages awarded. Judge Pettis will hear arguments from both sides regarding punitive damages under the CUTPA on November 7.


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