What I am writing about here is about the "inadvertent disclosure of Jones' cellphone texts" issue. I still find Jones' lawyers' conduct baffling regarding their office's mistaken disclosure of what appear to be all texts from Jones' cellphone. First, Jones' lawyers refusal to disclose the texts until the trial was underway (July 22, 2022), when it is clear there should have been a disclosure months ago (meaning informing the plaintiffs' lawyers the texts could be downloaded) is, in my opinion, a major ethical violation--which will have multiple consequences against Jones' lawyers from a state bar office. But, the truly baffling part for me came reading Jones' lawyers' Emergency Motion filed August 4, 2022:
The Emergency Motion
Per Jones' lawyers in the Emergency Motion, filed on August 4, 2022, the morning after the compensatory damages verdict, Jones' lawyers received an email dated July 22, 2022 at 11:24 pm (!) from the plaintiffs' lawyers stating Jones' disclosure of the cellphone texts included what Jones' lawyers had themselves marked as "confidential" information. Jones' lawyers emailed back the next morning, just after 6 am, saying to disregard that production of documents and a new production, minus the confidential files, would be forthcoming. The motion discloses no further communication on the topic, which I find weird for both sides and discloses no further evidence a second corrected production was in fact produced.
I know if that was me or any firm I worked for, and I was on Jones' side, we'd have been in court that same morning or no later than the next morning alerting to the court to the situation--and demanding the Court order that plaintiffs' counsel return and destroy their own copies of any confidential documents.
Jones' lawyers are misreading Texas Rules of Civil Procedure, Rule (193.3(d)), which states a motion should be brought within ten days after the disclosure. They argued in the emergency motion they brought this to the court's attention the day after the plaintiffs' lawyers disclosed this to the world in cross-examining Jones. However, that is not what the Rule states. The Rule states the motion must be brought to the court ten days "after the producing party discovers such production was made..." which was July 22, 2022 or maybe after midnight or the early morning of July 23, 2022. The motion is dated August 4, 2022, which is beyond the ten days deadline.
This is where it looks as if Jones has a legal malpractice case against his lawyers (though we will see below why such a case is not at all a slam dunk against Jones' lawyers). Worse for Jones' lawyers, the language regarding the ten days deadline is an outer limit, so that they really should have brought this to the court's attention that morning of July 23 or no later than July 24, as they were in trial. Being in trial is a major factor when weighing circumstances of what constituted prompt action.
What is even more troubling is the Emergency Motion does not say whether Jones' lawyers provided the alternative production to the plaintiffs' lawyers. Under the Court's 2021 Discovery Order (which the lawyers for both sides prepare and the court approves with minimal changes) for this case, that was part of Jones' lawyers duty in such a situation--especially as this came during plaintiffs' trial presentation.
Plaintiffs' lawyers may also have behaved unethically:
What I have not yet seen discussed is the plaintiffs' lawyers ethics also appear to have been below where they should have been. The 2021 Court Order for discovery rules in the case states that if there is any dispute over whether confidential documents are in fact confidential, a party contesting the confidentiality must seek a decision from the court---and the disclosing party's designation of confidentiality "will remain in full force and effect" until the judge's ruling on the issue of whether the documents remain confidential. That means, until there is a court ruling on whether particular documents disclosed are in fact confidential, the Order says the confidential designation remains valid and in force.
The plaintiffs' lawyers' failure (refusal?) to reply to Jones' lawyers' early July 23 email as to whether they would disregard the inadvertent production and wait for the second and allegedly proper production is deeply troublesome from an ethics standpoint. Regardless of whether the Court Order covered this situation, and there is an argument it didn't, as maybe the plaintiffs' lawyers were not opening or using the confidential information, and Jones' lawyers had the burden to produce the second iteration of the cellphone text production, there remains a more general ethical obligation at stake here when evaluating the plaintiffs' lawyers' conduct.
If I was the plaintiffs' lawyer, or my firm was, and we had received such confidential information, I would have had us bring the issue to the judge that very morning, and begin with the fact the production was clearly one that was prepared over weeks and maybe a couple of months or more, so that the lateness of the production should require at least a one or two day delay in the proceedings to sort out the documentation. I would also have said there was strong reason to challenge the "confidential" designation of the cellphone texts, whether some, most, or all of the texts. I would have considered asking the court to consider a request for a default judgment for this egregious violation of discovery rules in not alerting the plaintiffs' lawyers of this information when the circumstances show Jones' lawyers knew for weeks and maybe months of the cellphone texts being retrievable and never said a word to plaintiffs' lawyers or the court. A default judgment would leave the jury only deciding damages, and I could foresee a major sum being awarded just by how badly the case was already going against Jones and his lack of credibility or true contrition.
The lost "Perry Mason" moment is not enough to justify Plaintiffs' lawyers conduct:
Yes, moving the court on July 23 or July 24, 2022 would have likely destroyed "the Perry Mason moment," as Jones said. However, there is plenty of case law over seven decades against gamesmanship overriding justice in complying with civil discovery processes.
Also, practically speaking, the trove of cellphone texts, even if fully known before trial, would have allowed the plaintiffs' lawyers to expose Jones' lying ways. For example, the singular fact the texts contain Jones' admission of his net worth being based upon upwards of $800,000 a day (!!) income from his show and merchandise sales exposes the lie Jones has continued to tell the world about his being nearly bankrupt. That obvious lie also raises a host of questions of how Jones has spent his money since the lawsuits began, as there are laws in nearly every state against disposing of assets, liquid or otherwise, when one is being sued for major money. See this.
I would also add the plaintiffs' lawyers were APPARENTLY smart enough at the trial to not to have appeared to use the privileged information, though an investigation may reveal they opened files marked attorney client privilege after being told the disclosure had been in error--and reading those communications may have informed their strategies during the last days of the trial. Further, who knows yet if the economic worth information was in an attorney client communication or in a text to someone else?
Was Jones telling the truth he didn't know his texts were retrieved? Not likely, but....
Jones himself may have been telling the truth in court--yes, this is ironic considering how I feel about Jones*--that his lawyers may have never alerted him they were able to able to retrieve his texts from his cellphone, so that his deposition testimony earlier in the case was merely a mistake, not a lie. A person does not commit perjury if one is merely mistaken. One must tell a conscious lie to be convicted for perjury. However, perjury can be established by circumstances and even overcoming Jones' subjective statement that he believed his statement to be true.
While Jones seemed to me genuinely surprised that his phone texts were able to have been downloaded, Jones' lawyers knew the true facts--and they had a duty under general discovery rules and the Court's 2021 Discovery Order to promptly correct the record on something that major, i.e. the downloading of the cellphone texts.
Nonetheless, I must say I have to believe Jones' lawyer told Jones the truth, and it is one more lie from Jones. If they didn't, then that raises separate ethical issues owed to Jones, not merely the court and opposing counsel.
Jones' malpractice case against his lawyers is not a slam dunk:
There is definitely a potential (and I mean only potential) malpractice case which Jones may file against his lawyers. The malpractice case will mainly focus on the inadvertent disclosure of confidential information and whether that was actually why this jury held against him and awarded the damages awards they did.
However, the malpractice case is not the slam dunk I am seeing too many assume. I think an argument may be made--how persuasive I don't know--that the jury already had plenty of reasons for its verdicts before and separately from the "Perry Mason" moment, so the plaintiffs' lawyers alleged use of inadvertently disclosed documents in cross-examining Jones is not necessarily prejudicial error--and merely a harmless error--so that the verdicts could likely be upheld on appeal (though again, under at least my view regarding punitive damages and the 14th Amendment right to due process, I can see an appellate court or possibly the trial court significantly reducing the punitive damages verdict).
Such a finding of harmless error upholding the verdict findings could well undermine most of Jones' malpractice case against his lawyers because Jones must not only prove the lawyers were negligent in making the inadvertent disclosure. Jones must also prove a connection between the error and jury's verdicts. It remains a fact known to lawyers who litigate and try malpractice cases against any professional, lawyer, doctor, that many a malpractice case fails in the element of establishing a connection between the negligent conduct and the damages that occurred thereafter.
If Jones' lawyers establish in emails, texts, oral conversations, or otherwise, they told Jones about the cellphone texts being retrieved weeks or months ago, this could undermine the heart of Jones' case. If so, there is a reasonable possibility Jones' potential malpractice claim against his lawyers could be rejected because of what courts refer to as "unclean hands" or his own bad faith. See, for example, a case with high factual relevance to parts of this situation, Blain v. Doctors' Co. (1990) 222 Cal. App. 3d 1048. In California, the "unclean hands" doctrine applies both as a legal and equitable defense, so that the defense applies against a legal malpractice case, as was the case in Blain. However, it remains unclear to me whether or not Texas creates a limiting distinction between the two types of defenses. In New Mexico, the "unclean hands" applies only to equitable actions, and not legal actions such as a legal malpractice case--though I would say New Mexico law is not as settled as it should be one way or the other. Nonetheless, if I was Jones or Jones' lawyers, I'd want to know the law in Texas on that issue at some point. :)
But, wait! The "crime-fraud" exception to the attorney-client privilege may well apply to many of the texts in any event, which could further undermine Jones' potential legal malpractice case, and likely lead to an appellate court upholding the two damages awards against Jones.
Plaintiffs' lawyers, and those lawyers representing plaintiffs in the other cases, have a strong incentive to have a court find almost every text to NOT be "confidential," including Jones' communications with Jones' lawyers under the "crime-fraud" exception to the attorney-client privilege. For example, if the confidential communications are where Jones admitted his true economic worth, the attorney-client privilege may not exist anyway to that extent, because Jones was committing perjury, and, just as bad, his lawyers were suborning perjury or a fraud on the court.
A major exception to the attorney client privilege is the "crime-fraud" exception, so that a lawyer involved with a continuing crime or fraud with the client negates whatever attorney-client privilege otherwise exists. See: Texas Rules of Evidence Rule 503(d) (crime-fraud exception to the attorney-client privilege). A finding the documents were not confidential could also undermine or cause Jones' malpractice claim against his lawyers to fail because there would only be a disclosure of non-confidential information--or the remaining confidential communications were not materially significant to have affected the outcome of the trial. Again, there was more than arguably plenty of reason before the dramatic cross-examination for a jury to have hit Jones hard with both compensatory and punitive damages. And if there is a court reduction in the verdict, it ironically lessens the prejudice under the circumstances.
Conclusions: This disclosure is just the start of the fallout from the inadvertent disclosures of Jones' cellphone texts:
In short, this is a real mess from a position of law and ethics rules, including to what extent Jones' lawyers will have legal malpractice insurance coverage, which I don't think most of my very few blog readers would want to know about right now. LOL
For now, I would say the trial judge was correct at this point in denying Jones' emergency motion, which included Jones' request for a mistrial. However, this issue is not going away even in this now concluded set of damage awards. We can expect to learn more information (1) surrounding the circumstances regarding this inadvertent disclosure of Jones' cellphone texts, (2) about the law of waiver and ethical duties for both sets of lawyers, and (3) as to the extent the documents marked confidential are truly to be deemed confidential.
I expect we will begin to learn more information when Jones' lawyers move for a new trial. What regular folks often do not know is lawyers move for a new trial not merely to contest the verdict, but to preserve certain objections to ensure the record is the best it may reasonably be for appeals.
Finally, I am betting there will be a State Bar investigation of both sides' lawyers for ethical violations.
* In a child custody battle with his wife some years ago Jones lost (the jury ruled he would no longer have primary custody, and his ex wife could now decide where the children live), he allowed his lawyer to argue in court Jones was merely a performance artist who people should not take seriously. Then, outside court, he would deny it. I do not have any sense Jones cares about truth, and sees spewing false or unverified information as a commodity to make money. More's the pity for those who fall for his nonsense.
