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#CaseoftheWeek Episode 49: Violation of Court Orders and Discovery Abuse

In the second to last episode of #CaseoftheWeek for 2021, our CEO discusses the highly publicized entering of default judgment against Alex Jones and Infowars in litigation brought by parents of children who died in the Sandy Hook school shooting. The case is Heslin v. Jones, Case No. D-1-GN-18-001835 (Tex. 2021), September 27, 2021 and was presided over by Judge Maya Guerra Gamble.

Good morning and welcome to our Case of the Week for December 14, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. So happy to be here with you today.

Thanks for taking a few minutes out of your day to join us and hear about this week’s decision. This is our second to last broadcast for 2021. It’s hard to believe how quickly this year has gone and how much I still miss seeing all of you. Hopefully 2022 will clear up things a little bit in the world, and we’ll be able to get together a little bit more. That’s my hope.

As always, we would encourage you to please reach out to us with any issues or questions that you’re having in eDiscovery today, we can cover those on Case of the Week and be able to provide some practical solutions. You can reach out to me directly at Kelly@ediscoveryassistant.com or to our team at support@ediscoveryassistant.com. We’d love to hear from you.

As always, the link to the decision today, which is viewable on eDiscovery Assistant, is in the comment section of whatever platform you’re viewing us on. Whether that’s LinkedIn, Twitter, Facebook or YouTube. I almost forgot that last one. I also have posted today or I should say Deja, my super great partner in crime here has posted a link to an article from my very good friend, David Horrigan, who is eDiscovery Counsel at Relativity, that David also wrote on this decision. I believe that David’s article was published also on Law.com in addition to being on the Relativity blog, but you can view it for free at the link that is in the comment section.

If you’re interested in signing up for a demo, we now offer demos each week on Thursday morning. You can also sign up for a personalized demo at another time if that suits you better.

You can also download our 2020 eDiscovery Case Law Report from eDiscovery Assistant that we publish in cooperation with Doug Austin at eDiscovery Today, and we’re working on our 2021 report. That should be available hopefully by the end of January, beginning of February at Legal Week.

Speaking of Legal Week, if you’ll be there, please let us know so we can connect and say Hi.

All right, all that aside, let us get into this week’s decision. This week’s decision is in a case called Heslin v. Jones, and sad as it is to report, this is one of a series of decisions that was brought by parents of children who were killed in the Sandy Hook mass shooting in Connecticut. They were brought against Alex Jones, his company Infowars, or his company is called Free Speech System, which owns Infowars, as well as Alex Jones’ partner on the host of The War Room, Owen Shroyer, for essentially alleging that the shooting was a masked hoax that was perpetrated by Second Amendment opponents. Basically, people who were opposed to guns created this notion that there was a shooting of small children in Sandy Hook, which, as we know, is completely wrong and a horrible thing that happened to these parents of these children who were massacred.

Those are the underlying facts of the case. What’s before the Court, as always, is the discovery dispute. This case is before the Court on a motion for sanctions. Here the Court really goes through and recounts what can only be described as an enormously serious history of discovery abuses, both in this particular decision that was pending in Texas, a state court, as well as multiple other cases pending in Texas and in Connecticut that were brought by parents of children from the Sandy Hook shooting against these same defendants.

In essence, the Court lays out a series of discovery abuses:

  • a failure to comply with an October 18, 2019 discovery order,
  • a failure to supplement discovery as promised by the defendants in 2019
  • another failure to supplement discovery in June of 2019,
  • repeatedly violating discovery orders in multiple cases, not just this case.

As I mentioned, the Court really looked at all of the other cases that are both in Texas and Connecticut and found that the defendants had engaged in, “pervasive and persistent obstruction of the discovery process in general.” The Court found that that showed “a deliberate, contumacious and unwarranted disregard for the Court’s authority.”

In making those findings, the Court granted a default judgment for the families for what she said “were continual and egregious discovery violations.” That’s really key here, right? We talk a lot about how difficult it is to get terminating sanctions in federal court and so that’s really the key takeaway from this case that we want to talk about. We’ll come back to that.

Here the Court really said that “the defendant’s discovery conduct in this case has shown flagrant, bad faith and callous disregard for the responsibilities of discovery under the rules. The Court finds, the defendant’s conduct is greatly aggravated by the consistent pattern of discovery abuse  throughout the other Sandy Hook cases pending before this Court.”

Now, the Court did also consider whether or not lesser sanctions were going to be appropriate here, and they acknowledged that with the default judgment, they were essentially precluding the defendants from presenting their case on the merits. The Court found that the lesser sanctions would be inadequate given the defendant’s discovery abuses in this case and other cases. There’s a key quote from the Court that I think is really important, as you’re considering analysis for terminating sanctions going forward. And it reads like this:

however, the Court has a more than sufficient record to conclude that an escalating series of judicial admonishments, monetary penalties and non-dispositive sanctions have all been ineffective at deterring the abuse. This Court rejects lesser sanctions because they have proven ineffective when previously ordered. They would also benefit defendants and increase the cost to plaintiffs, and they would not adequately serve to correct defendants persistent discovery abuses. Furthermore, in considering whether lesser remedy would be effective, this Court has also considered defendants general bad faith approach to litigation, Mr. Jones public threats, and Mr. Jones professed belief that these proceedings are ‘show trials’.”

That language is really important for a number of reasons. It shows that the Court is not only considering what’s happening in the litigation but what’s happening outside of the litigation. You heard a lot about gag orders that have been placed on defendants or witnesses in the past. While there was not one here, essentially, the Court is saying, “hey, you’re going out and you’re espousing this on your radio show and on television. We can’t have that that’s not appropriate. In addition to the fact that you’ve not engaged in discovery effectively in any of these cases, a default judgment is appropriate.”

There’s a lot of analysis in that quote to be broken down as to how the Court rejects lesser sanctions that you’ll want to be able to use if you’ve got similar levels of discovery abuse. That’s part of the takeaway from this case.

What are the additionals? Now some of you are going to look at this case, and then I’ve had this in the past with clients and say, “well, we would never engage in that level of discovery abuse such that we would be before the court on terminating sanctions. That’s very likely to be true. But there are some really key takeaways from this case that help you in terms of being able to move for sanctions or being able to fight sanctions. That is that your conduct in other cases will matter.

When you’re taking positions, when you’re making arguments in other cases, you got to remember, those are public decisions, and those may be things that the Court takes into account. Now, each case is different. Each case should be tried on its own individual merits. Discovery and how discovery is handled in an individual case is going to come first. When those discovery abuses in that case exist, the Court is going to look to other factors—what you’re saying to the public, what you’ve done in other cases. That’s really important to consider here because you want to know for your client when you’re making decisions, that the decision that you make today is going to impact other cases down the road, potentially.

In this case, it’s a little bit different because all these Sandy Hook cases were related. The judge saw that pattern not just in the case before her, but across multiple cases brought by parents of children that were killed at Sandy Hook.

Now let’s talk about the difference between Texas law and the Federal Rules of Civil Procedure when it comes to the imposition of terminating sanctions. In this case, that’s a default judgment.

Texas law does not have the same intent standard that’s required under Rule 37(e) for issuing terminating sanctions. The Court really does no analysis of intent, and the question becomes, would that really be different under Rule 37? I want to be clear, this is also an issue that David covered in his article, and it’s a really crucial one. This case involved a violation of multiple court orders and likely would fall under Rule 37(b)(2) as opposed to Rule 37(e) because 37(b)(2)  provides sanctions for disobeying a court order. That section specifically provides that a court can enter a default judgment without the intent that’s required under Rule 37(e) for failure to preserve.

Rule 37(b) is for violation of a discovery order. Rule 37(e) is for violations for failure to preserve right. The intent standard under the Federal Rules is on the failure to preserve that. You’ve got to show that intent.

What does that mean? It means that one you need to know what your jurisdiction rules are on, what you can get for sanctions, and when you’re going to have to prove that level of intent. You again need to understand the different sections of sanctions rules that are available, and you should not be afraid to move to compel. I see a lot of lawyers who don’t want to rock the boat, don’t want to file motions to compel, but the result is that you get an order. If you’re successful. If your motion to compel is valid, you get an order from the Court. When that order is violated, you’ve got a better step towards leaning on 37(b)(2) , or the state equivalent, which doesn’t require intent for terminating sanctions.

We’ve seen some cases on our Case of the Week where terminating sanctions seem like they should be awarded. But we were under Rule 37(e), and we’ve got that high intent standard that has to be met. Know what your standards are. Don’t be afraid to move to compel. Don’t make spur less motions. I am not advocating for you making frivolous or spur less motions that don’t have merit. Where you’ve met and conferred and where you’re not getting the discovery that you should be getting, you need to move to compel so that you have that discovery order as a basis for your motion for sanctions later.

It’s just going to be an easier analysis to be able to get to terminating sanctions or even something more effective. Frankly, the Court has said “you need to do this,” and if you don’t do it, then the Court is going to be upset. It’s just an easier analysis on sanctions so don’t be afraid to make those motions.

It’s a quick one, but that’s our important case of the week for this week. Thanks so much for joining me. If you are an ACEDS member and interested in using eDiscovery Assistant, there’s discount available to current ACEDS members and a trial for folks taking the ACEDS exam. If you’re interested in either of those, please just drop our team a line at ACEDS@ediscoveryassistant.com.

Similarly, if you are not an ACEDS member but are interested in using the platform, you can reach out to us at Support@ediscoveryassistant.com or you can sign up for a trial in the upper right-hand corner.

Thanks so much. Have a great rest of your week and happy holidays. See you next week.

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