Inadvertent Disclosure and the Alex Jones Debacle

Last month, a Texas lawyer’s “stunning” failure to comply with professional conduct rules and discovery obligations made international headlines.

The errors occurred in the context of a high-profile defamation case. Ultimately, a jury ordered Alex Jones—a far-right radio host and conspiracy theorist with millions of listeners—to pay nearly $50 million to the parents of a child killed in the Sandy Hook Elementary School shooting in 2012. Jones had repeatedly (falsely) asserted that the mass shooting was a hoax in which the children’s families were complicit, in service of a government plot to take away Americans’ firearms.

Mark Bankston, the plaintiff parents’ counsel, had a “Perry Mason moment” when cross-examining Jones. Jones had previously stated under oath that he did not have any text messages relating to Sandy Hook. Bankston confronted him by asking:

“Mr. Jones, did you know that 12 days ago, 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? You know what perjury is, right?”

Jones’ counsel had sent a Dropbox link that was supposed to contain supplemental production for the damages trial. Instead, the link provided access to a trove of information that not only included texts relating to Sandy Hook, but also financial records contradicting Jones’ claim under oath that he was bankrupt, and third parties’ psychiatric records.

Jones appeared surprised by the question. He responded by noting that he is “not a tech guy”, but that he had provided his phone to his lawyers. He appeared to try to minimize the issue by noting that the plaintiffs now had what they had asked for, even though “we didn’t give it to you” (video of the exchange is available here).

Jones’ counsel, Federico Andino Reynal, brought an emergency motion seeking an order that Bankston return or destroy all the material from the link that was sent in error. In so doing, Reynal cast aspersions on Bankston for having reviewed the material he knew was sent by mistake, including by stating “I hate to be put into this position by the conduct of plaintiffs’ counsel”. Reynal also sought a mistrial. His motion was denied.

Under Texas law, a party who inadvertently provides privileged information to the other side can nevertheless maintain privilege and force the return of the material if, within ten days, the producing party identifies the specific material that was inadvertently produced and asserts privilege over it (along with a statement of the basis for such privilege).[1] Here, although not actually required to do so under Texas professional conduct rules, Bankston had informed Reynal of the inadvertent disclosure. Reynal responded by asking him to “please disregard the link”, but did not identify any material as privileged or amend his production (despite promising to provide a new link). On Reynal’s motion, the Court accepted Bankston’s argument that the ten days provided by law had passed without any assertion of privilege, and that Reynal’s earlier “please disregard” request did not impose any legal duty on Bankston to do so. The Court also observed that at least some of the accidentally-produced material ought to have been produced several months earlier in the discovery process.

Obviously, Jones’ counsel made an error when they sent the entire contents of Jones’ phone (much of which would be irrelevant and some of which could have been privileged) to opposing counsel.

But that was not the only thing that went wrong here:

• Jones’ counsel failed to produce relevant documents in their possession in the discovery process, and indeed permitted Jones’ sworn assertions that such documents did not exist to stand uncorrected;
• After sending material to opposing counsel by mistake, Reynal failed to follow the governing procedure to claw back the materials, preserve privilege, and protect Jones’ legal interests;
• Reynal apparently did not inform his client Jones about the inadvertent disclosure (although I am of course not privy to their solicitor-client communications, this seems to be a safe assumption based on Jones’ surprised reaction to Bankston’s question and Reynal’s failure to take any other appropriate steps to correct the error).

Incidentally, Reynal’s failures may have affected Jones’ legal interests beyond his liability for $50 million in this defamation matter; the inadvertently-disclosed texts have reportedly been handed over to the congressional committee investigating the attempted insurrection on January 6, 2021, in which Jones was a “central player”.

In Canada, how should inadvertent disclosure be handled?

It goes without saying that the Alex Jones debacle was an extreme example of inadvertent disclosure. But even more ordinary mistakes can create ethical dilemmas—and despite recent amendments imposing a professional duty of technological competence, inadvertent disclosure is not uncommon.

In my practice I have, on multiple occasions, received the wrong attachment from the opposing side (including drafts that feature comments between the client and counsel about the merits of their position) and been mistakenly copied on emails where the opposing party or their counsel exchange solicitor-client communications. I’m sure I’m not alone. It’s maddeningly easy to attach the wrong version of a document to an email, or “reply-all” rather than “forward” or simply “reply”. Indeed, while writing this column I accidentally replied all to a message from opposing counsel when I meant to forward his email with my comments to my co-counsel! (Fortunately, this was the first time I can recall in my career that I’ve done this, and all I said was that I disagreed with his position, which is exactly what we told him in an intentional reply later that day).[2]

Humans are imperfect, and mistakes happen. So it’s important to know how to respond to inadvertent disclosure—both as the sender and the recipient—in a manner that is consistent with professional conduct rules.

This may depend on where you practice. Since the advent of the Federation of Law Societies’ Model Rules of Professional Conduct, professional conduct rules have largely been harmonized across Canadian jurisdictions—but inadvertent disclosure is one area where provinces’ rules vary.

Obligations of the sender

The professional obligations of a lawyer who sends documents by mistake are consistent across the country. In every common law province, there is a rule that provides:

• When, in connection with a matter for which a lawyer is responsible, the lawyer discovers an error or omission that is or may be damaging to the client and that cannot be rectified readily, the lawyer shall promptly inform the client of the error (see Rule 7.8-1 of the FLSC Code)
• A lawyer shall promptly notify their insurer of any circumstance that may give rise to an errors and omissions claim, so that the client’s protection from that source will not be prejudiced (see Rule 7.8-2 of the FLSC Code)

For Canadian lawyers who make the same mistake as Jones’ lawyer Mr. Reynal, the next steps are fairly straightforward.

First, they should immediately take steps to try to rectify the error to avoid prejudice to their client.

As the inadvertent disclosure in the Jones case was in the form of a shared Dropbox link (providing access to documents stored in the cloud), it may have been possible for Mr. Reynal and his firm to rectify the situation if he noticed it quickly enough: for example, they could have disabled the Dropbox link or moved all the files out of the shared folder. If this had been done before the contents of the Dropbox folder were accessed by Mr. Bankston (access can be checked on Dropbox), the law firm’s error likely would not have been damaging to Mr. Jones.

Sometimes, however, the train has left the station, and it may not be possible to preclude the recipient from accessing the document and thus fully rectify the situation (email attachments, for example, cannot truly be recalled).[3] In these cases, the lawyer’s next best option is to try to mitigate the damage. They should promptly contact the recipient(s) to notify them of the error; determine if the recipient has shared, downloaded, or reviewed the document; and request an undertaking that they will delete and (if read) refrain from using the document. The following professional conduct rule might be cited in support of this request:

A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights (see Rule 7.2-2 of the FLSC Code)

In the event the client’s rights and interests remain at risk of prejudice after these efforts—for instance, if the recipient lawyer has already reviewed sensitive information or declines to delete and refrain from using it—the sending lawyer has a duty to inform their client of what happened and the potential implications. In some circumstances, the error could put the lawyer in a conflict of interest and the lawyer must withdraw. In many jurisdictions, including Ontario, the lawyer must also recommend that the client seek independent legal advice concerning any rights they may have arising from the error, such as to commence a claim in negligence against the sending lawyer who inadvertently disseminated their sensitive information (even where not required, recommending independent legal advice is prudent).

Any error that may give rise to a claim against the lawyer must be reported to the lawyer’s insurer—even if the lawyer has attempted to rectify it. Indeed, errors and omissions insurers may be better situated to remediate the issue than the lawyer personally.

Duties of the recipient

The professional obligations of lawyers who receive documents that were inadvertently sent by opposing counsel depend on where they practise. There are essentially three different approaches:

The “notice only” rules

The relevant provision in the FLSC Code—which has been adopted in Ontario, Manitoba, Newfoundland, the Northwest Territories, Nova Scotia, Nunavut, PEI, Saskatchewan, and the Yukon—simply provides that:

A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably ought to know that the document was inadvertently sent shall promptly notify the sender. [Emphasis added; see s. 7.2-10 of the FLSC Code].

In all the above-mentioned jurisdictions except Ontario, Commentary 2 to the rule specifically adds:

Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Unless a lawyer is required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. [Emphasis added.]

While it is interesting to note that the Law Society of Ontario chose not to include this Commentary, I would suggest its omission should not affect the interpretation of the Rule, which does not refer to any other duties upon receipt of mistakenly-sent documents.

Put simply, if a lawyer in any of these jurisdictions received the Dropbox link with Jones’ texts from Mr. Reynal, all they would have to do is what Mr. Bankston did: tell the other side.

They would not have to delete the email. They would not have to stop reviewing the documents, nor refrain from downloading the documents. And—as far as conduct rules are concerned—there are no restrictions on using the documents that opposing counsel provided by mistake (use is still subject to legitimate claims of privilege, which belongs to the client and may not have been waived through the lawyer’s inadvertent disclosure, but for the purposes of this column we are concerned with professional conduct rules).

What about rule 7.2-2, which provides that a lawyer “shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights”?

The Jones case features striking facts: the inadvertently shared text messages referring to Sandy Hook were not only directly relevant to the matters at issue, but they had been specifically requested by the plaintiffs and were not produced by Jones and his lawyers on the stated basis that they did not exist.

In such circumstances, I see no reason why Canadian lawyers in jurisdictions with “notice only” conduct rules should not use the inadvertently sent documents upon notifying the sender—Jones’ lawyers acted improperly by maintaining that the documents did not exist when they had them in their possession, and the plaintiffs were entitled to those documents in the first place. To let this wrongdoing to go unaddressed would involve a sacrifice of the plaintiffs’ rights.

Where there is no basis to believe the opposing party or their counsel has withheld documents or otherwise not honoured their obligations, the duties to act in good faith and to not take advantage of slips by other practitioners might suggest that the appropriate action upon discovering the mistake is to stop reading and delete the documents.

But this is far from clear. Advocates also have a duty to “represent the client resolutely and honourably within the limits of the law”; the Commentary to this rule (5.1-1) states that “In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

Moreover, rule 7.2-2 does not say that a lawyer cannot act upon another lawyer’s mistake—it says they cannot act upon the mistake without fair warning. There is a credible argument that informing the other side of their error is sufficient “fair warning” after which one can act upon the mistakes of other lawyers under a plain reading of the rule—and that, given rule 5.1-1, the lawyer not only can but should use the mistakenly provided documents if doing so would help the recipient’s client’s case.[4]

The “stop, delete, and inform” rules

The law societies of British Columbia and New Brunswick have implemented rules that are stricter than what is found in the FLSC Model Code.

Lawyers in B.C. or New Brunswick who come into possession of a document they know or ought to know is not intended for them must (a) delete or return it unread, and inform the sender this was done, or (b) if it was read before realizing it was sent unintentionally, cease reading; promptly delete or return it; and inform the sender (i) the extent to which the reading lawyer is aware of the contents, and (ii) what use that lawyer intends to make of the contents of the document.[5]

In other words, if an inadvertently sent document is read in good faith, the recipient can use its contents so long as they inform the sender what they read and what they plan to do with this information.

But the lawyer’s ability to use the document is severely curtailed by the further requirement that they immediately cease reading and destroy the documents they believe to have been sent accidentally.

In circumstances akin to the Jones case, this could present a real challenge.

If a lawyer in B.C. or New Brunswick were to receive Mr. Reynal’s Dropbox link, they would review the contents of folder and quickly realize that it contained at least one document that was sent by mistake (i.e. was not responsive to the supplementary production request), but which ought to have been produced on discovery. If, at that point, the recipient followed the applicable conduct rules, they would immediately stop reviewing the Dropbox folder and delete any and all copies in their possession.

This could result in the opposing party’s wrongdoing going unaddressed, and potentially prejudice the recipient’s client’s rights.

One can envision how the recipient’s motion would play out: they would inform the court that they believe Mr. Reynal had withheld relevant documents and that Mr. Jones lied under oath when he stated that the requested text messages did not exist, because they saw one. But Jones and his counsel—who had already misled the court—could easily downplay the situation, stating, for example, that they had simply sent some documents that they had determined were irrelevant by mistake. Having deleted the documents received, the rule-following recipient would have no evidence to the contrary beyond a bald statement that he saw a text that referred to Sandy Hook. It seems unlikely, even if the judge were to order further production, that Jones and his lawyers would make complete disclosure in this context.

Professional conduct rules should not operate in a way that penalizes the clients of lawyers who follow them and permits others to flout their obligations without consequence. Although instances of inadvertent production of improperly withheld documents are hopefully rare, a rule that mandates destruction of all inadvertently sent materials without further review may go a bit too far by precluding exceptions for such extenuating circumstances.

Alberta’s rule, however, may offer a solution.

The “privileged document” rules

Alberta has also declined to implement the FLSC model rule about inadvertent communications; instead, their rules provide:

A lawyer who comes into possession of a privileged communication of an opposing party must not make use of it and must immediately advise the opposing lawyer or opposing party. (See Alberta r. 7.2-13)

Importantly, while the requirements of this rule (i.e. an absolute prohibition on use) are severe, its scope is limited; this rule refers only to privileged documents. Alberta’s rules are silent about what to do with non-privileged documents that were not intended to be seen by the recipient.

Accordingly, a lawyer in Alberta who received this Dropbox link could presumably peruse the folder as they wished, even upon realizing that it contained scores of mistakenly sent documents. Only upon discovering any privileged communications would they have to notify the sender, destroy those communications, and refrain from making any use of them.[6]

Commentary 2 of Alberta’s rule provides that knowledge that a document is a privileged communication not intended for the lawyer receiving it will be imputed “if, under the circumstances, it would have been unreasonable for the lawyer to come to any other conclusion.”

But what about situations where the nature of the document is unclear?

The Commentary further provides as follows:

In the event there is a genuine dispute over the nature of the communication, it shall be permissible for the receiving lawyer to secure the communication, pending resolution of the dispute. The issue of whether or to what extent the communication may be copied or its contents disclosed or used must be resolved by agreement or by the court. In the meantime, it is improper to use the communication or disclose its contents in any manner.

I submit that this process would be a useful addition to the B.C. and New Brunswick rules, to leave room to address situations such as the Jones case. If implemented, a lawyer who received documents that were sent by mistake—but which the lawyer believes their client may be entitled to—could download copies of the documents for review by the court, similar to when a judge is called upon to review assertions of privilege.

Conclusion

In most parts of Canada, the Alex Jones debacle could have unfolded in precisely the same way: the recipient lawyer would be required to inform the sender, but professional conduct rules would permit the recipient to nevertheless continue to review the documents and use them to impeach Mr. Jones on the stand (subject to any legitimate claims of privilege, which in this case were not made). Only in British Columbia and New Brunswick would the receiving lawyer have an obligation to stop reading and delete all copies of the documents upon realizing they were sent by mistake—notwithstanding their legitimate entitlement to the (relevant) documents and Mr. Jones and his lawyers’ failure to abide by their discovery obligations.

There can certainly be reasonable differences of opinion on whether, as a matter of policy, lawyers should be permitted to read and use an opposing party’s documents when they know they were sent by mistake. But I suggest that even where this is prohibited, the rule should not be absolute; there ought to be room to address the (hopefully rare) situations where inadvertent disclosure reveals wrongdoing by an opposing party or counsel, so that a lawyer is not forced to choose between violating their professional obligations and leaving their client at an unfair disadvantage.

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[1] For a useful discussion of the applicable law and professional conduct rules in Texas, see Hilary Gerzhoy, Julienne Pasichow and Grace Wynn, “Ethics Lessons from the Alex Jones discovery debacle”, Law 360, 5 August 2022, online: https://www.law360.com/articles/1518243/ethics-lessons-from-the-alex-jones-discovery-debacle.

[2] Word to the wise: the Outlook iPhone app defaults to “reply all”, which can be dangerous if you are responding to emails from your phone before you’ve had your morning coffee.

[3] While some email clients (such as Gmail) provide an “undo” feature, permitting the user to “undo” their sent email for a fixed period (e.g., 30 seconds), they are not in fact recalling a sent email; rather, they do not send the email until that period of time has elapsed, giving the user a short window to cancel their email before it is sent. After it is sent, there’s no turning back.

[4] I am not aware of any law society decisions that interpret this aspect of the rule; the cases I have seen decided under this rule tend to involve lawyers who commit “sharp practice” by doing something behind opposing counsel’s back. That said, any readers who are aware of such case law should please feel free to contact me or note in the comments; in the event I’ve missed something, I would be eager to learn more.

[5] Curiously, New Brunswick has chosen not to implement the FLSC’s rule 7.2-10 (discussed in the section above) in favour of its own version of the rule, but has implemented the FLSC commentary without modification—including the portion that provides that “Unless a lawyer is required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer”, which is inconsistent with a plain reading of the rule itself. I would reconcile this inconsistency by favouring the rule itself (i.e. requiring deletion or return of the document), both because the Commentary is an interpretive aid and not binding, and because it could be argued that the rule itself is “applicable law” requiring the lawyer to return the document.

[6] The FLSC rule includes Commentary providing that “whether the privileged status of a document has been lost” by inadvertent disclosure is a question of law beyond the scope of the conduct rule. Without wading too deep into the law of privilege, it seems likely that if a lawyer in any of the jurisdictions with the FLSC rule were to mistakenly disclose a client’s privileged documents, a court may find that the client never waived privilege, and the privilege would operate to preclude the opposing party from using the document in court in any event of the permissive nature of the FLSC conduct rule.