When the news broke that Alex Jones’s attorney has set up the bed royally, animatedly, spectacularly, to send a copy of Jones’s phone and two years text message to Sandy Hook’s family is suing him, it brings smiles on many faces. What better fate than meeting a professional blogger and conspiracy theorist used his own words against him, raised on his self-incriminating petard? But many American attorneys who were simultaneously swept away by a wave of nausea and visceral realization that this—maybe not this huge and blundering mistake, but something similar—could be too easy. happened to their customers.
We think of the legal system of trial and testimony, but that is wrong. Ninety-nine percent federal civil cases resolved long before a single witness is called, or dismissed under increasingly stringent standards for lawsuits in the United States, or as a result of a settlement. Instead, for litigants, the courtroom has been replaced by discovery, the sometimes years-long process of sifting through mountains of records to see what can be proven. While we still don’t know exactly how Jones’ attorneys twisted the dog so badly, it most likely happened in the ediscovery arena. And this silence underscores the dire need for alternative discovery models.
As a young lawyer, like countless other associates, I spent hours rummaging through countless documents about my client. If the documents meet (match the criteria set by the other side), click a button. If they are not related, click another one. And if they have a privilege, like when a lawyer writes to a client, press the third key. You try hard, to never make a mistake, but when you look at thousands of different documents every day, you are completely wrong.
Screwing is so common that there are even special federal rules for it. Recent years have seen people from Apple arrive Facebook arrive federal agencies resolve high-stakes detection disputes. When a document is accidentally delivered, you can actually ask for the document to be returned and the other party has to pretend like they never saw it. The issue of Alex Jones’ attorney size, however, is a completely different matter. The memes of his attorney’s astonishing incompetence are richly demonstrated. Giving back a text message that should have been kept — it’s another thing to give two years’ worth. And when lawyers catch errors, they only have a limited window to correct them. For Jones, the messages were so horrific that it wasn’t clear whether they were legally protected in the first place, because no matter what you see on TV, lawyers aren’t allowed to help clients lie or commit crimes. If an attorney emailed a client they were giving advice to, they could usually get it back, but when the email shows the client is committing a crime, like perjury, that’s another matter.
Ediscovery often makes or breaks a case. Find a guide to self-incrimination in the haystack, and most defendants will settle on the spot, knowing they probably won’t get a chance to try. But when plaintiffs can’t find documents about the killer, increasingly strict federal and state rules make your court date harder. Before any trial, plaintiffs must exist a summary judgment motion, showing that they have evidence for every element of their claim. And unlike a trial, it is the judge, not the jury, who decides if your case is good enough.
This has implications far beyond Alex Jones and Sandy Hook, and it goes to the core of what our civil justice system looks like. If we continue down this path, focusing more of our time and money on increasingly protracted legal battles over documents, our legal system will become increasingly money-leaning. silver and less about justice. Follow Duke Law Journal, ediscovery can account for up to half of litigation budgets. And as individuals spend more and more of their lives online, the problem will only accelerate. Technologies like virtual reality, augmented reality, and even self-driving cars will record terabytes of data about our every moment. The more our lives are recorded, the more anyone who takes them to court can use them against us. And if sifting through millions of texts and emails is already a burden, how will attorneys accurately test year after year of audio and video recordings from real and simulated environments?
