"Lawyers often have to deal with an incredible amount of material and documents, spanning many rooms and filling countless boxes. What lawyers once did by hand, such as identifying privileged materials that should not be disclosed to the other side, can now be done with the help of sophisticated technology. But mistakes can and do happen.
“In document intensive cases, it is not unusual to see some inadvertent disclosure of privileged ESI [electronically stored information] to the other side,” says University of Florida Levin College of Law professor William Hamilton, who teaches classes in electronic discovery. “It is a persistent problem that we have been dealing with for some time since the dawn of the ESI era.”
Andy Reisman, CEO of ELIJAH, which for nearly 20 years has specialized in expert digital forensic and eDiscovery services, agrees with Hamilton’s assessment: “Inadvertent production of emails, texts and other ESI has been a common issue for lawyers since the inception of those technologies.”
Some mistakes seem a bit more unusual and certainly gather more media attention than others. Case in point: Alex Jones. In 2018, the Infowars host was sued for defamation in Texas and Connecticut by the parents of children slain in the Sandy Hook Elementary School shooting massacre after calling it a hoax and questioning its legitimacy. After a series of default judgments were issued in favor of the plaintiffs in both states, juries deliberated over how much to award in damages.
In August, during the damages phase in Texas, Jones found out on the witness stand that his lawyers had inadvertently disclosed the entire contents of his cellphone messages to the other side.
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This article was originally posted in the ABA Journal.
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