The news that Alex Jones' attorney had sent a copy of Jones' phone and two years of text messages to the Sandy Hook families who are suing him made many happy. It would be great if the professional conspiracy theorist had his own words used against him. There was a wave of nausea and a realization that something like this could happen to their clients.
We think of trials and testimony when we think of the legal system. Ninety-nine percent of federal civil cases are resolved before a single witness is called, either through a settlement or dismissal. Electronic discovery is the process of sifting through mountains of records to find out what can be proven. We don't know how Jones' lawyers messed the dog up, but it most likely happened in eDiscovery. There's a need for alternative discovery models.
As a young lawyer, I spent a lot of time looking over client documents. Click one button to see if the documents are responsive. Click another if they aren't relevant. Press a third if they are privileged. You try to be careful, but when you look at thousands of different documents, you make a mistake.
There is a rule for screwups. Everyone from Apple to Facebook has messed up high-stakes discovery disputes. If a document is accidentally handed over, you can ask for it back, and the other side has to pretend they didn't see it. A mistake on the scale of Alex Jones' lawyers is something else. There is a meme about his lawyers incompetence. One thing to give over a text message is another thing to give over two years. Lawyers don't have a lot of time to fix an error. Even though lawyers aren't allowed to help clients lie or commit crimes, Jones' messages are so damning that it's unclear if they were ever legally protected. When the email shows the client is committing a crime, like perjury, it's a different matter.
A case can be made or broken by discovery. Most defendants will settle on the spot if they are able to find the self-incriminating needle in the haystack. State and federal rules make it harder for people to get their day in court. A motion for summary judgment is used to show proof of a claim. The judge is the one who decides if your case is good enough.
It goes to the core of what our civil justice system looks like, and is related to Alex Jones and Sandy Hook. Our legal system will become more about money and less about justice if we continue down this path. Up to half of litigation budgets can be attributed to ediscovery. The issue will only get worse as people spend more time online. A lot of data will be captured by technologies like virtual reality, augmented reality, and self-driving cars. Our lives can be used against us in court if we keep recording them. How will lawyers vet years of audio and video recordings from real and simulation environments if they have to sift through millions of texts and emails?
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