Judicial Notice (08.06.22): Dog Days
An epic e-discovery fail, special bonuses from a surprising source, and other legal news from the week that was.
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In the past, summer has been my favorite season because of its relaxed feel, but this never-ending heat wave is making me reconsider. Zach is a cold-weather person and thinks relaxing is overrated, so he has always had it in for summer.
That said, this week was relatively relaxing for us. My parents took Harlan on a trip (God bless them), so Zach and I were able to see friends, go out to dinner, and return to our pre-parenthood lives for a few days. Aren’t grandparents the best?
Someday I might add an advice column to Original Jurisdiction. I got to practice my “Dear Abby” skills by fielding a question about joining a law firm partnership for Slate’s Pay Dirt, the money-advice column by my former colleague Elizabeth Spiers (with whom I launched Above the Law back in 2006).
Now, on to the news.
Lawyer of the Week: F. Andino Reynal.
Based on his résumé, Houston lawyer Andino Reynal doesn’t seem like a screw-up. He graduated from Cardozo Law (Order of the Coif and top five percent), clerked for Judge Melinda Harmon (S.D. Tex.), worked at Baker Botts, and served as an assistant U.S. attorney. Then he struck out on his own, today practicing with two colleagues at his own litigation boutique, the Reynal Law Firm. He also looks like a lawyer from central casting (even if his website’s look leaves something to be desired).
But as the old saying goes, “If you lie down with dogs, you’ll get up with fleas.” And if you represent a notorious conspiracy theorist who blew through ten other lawyers before retaining you, don’t expect it to end well.
Andino Reynal just represented Alex Jones, the far-right radio show host and founder of the infamous InfoWars website, in a two-week defamation trial in Travis County, Texas. Jones was sued by Neil Heslin and Scarlett Lewis, parents of a six-year-old boy who was killed in the 2012 mass shooting in Newtown, Connecticut. Jones falsely claimed that the massacre at Sandy Hook Elementary School was part of a government plot to take away Americans’ guns, with the victims’ families complicit in the conspiracy. The trial was held to determine damages; liability was not at issue because Jones already had a default judgment entered against him, after failing to produce documents and testimony in the case.
During trial, Reynal made news for two reasons—neither good. First, he garnered coverage after giving the finger to opposing counsel (thankfully outside the presence of judge and jury). Second, Reynal generated headlines for inadvertently giving opposing counsel access to the last two years of text messages sent by Alex Jones—which showed that Jones did have texts about the Sandy Hook cases, even though he previously denied having any such texts. Some of Jones’s denials were made under oath in depositions—which led plaintiffs’ lawyer Mark Bankston to present some of the texts to Jones during cross-examination and ask, “You know what perjury is, right?” (Jones himself admitted it was Bankston’s “Perry Mason moment.”) [UPDATE (8/9/2022, 8:29 a.m.): Reynal told Bloomberg Law that it was only eight months of text messages, not two years.]
Now, discovery snafus can happen to everyone—which is why lawyers request protective orders providing for the return of inadvertently produced material, and why Texas has a so-called “snap-back rule” that lets lawyers recover such material. But according to Bankston, Andino Reynal—even after being told that his legal assistant had accidentally sent opposing counsel a link to the cache of Jones’s texts—“did not take any steps to identify [the material] as privileged or protect it in any way.” Reynal disputed this, saying he asked Bankston to “disregard” the link; Bankston said the “disregard” request didn’t comply with the snap-back rule, which requires the producing party to “identify the material or information produced and state the privilege asserted,” and therefore created “no legal duty on me whatsoever.”
Reynal filed an emergency motion asking Judge Maya Guerra Gamble to order Bankston to return the inadvertently produced documents, seal those already entered into evidence, and give him the opportunity to provide replacement copies of relevant evidence. Reynal also moved for a mistrial, based on Bankston’s use of some of the texts in cross-examining Jones. On Thursday, Judge Gamble denied the motions, noting that if the texts had been properly turned over “a year or so ago or longer,” then “there would have been plenty of time” to review them.
On Friday, the jury awarded the plaintiffs $4 million in compensatory damages and $45.2 million in punitive damages. The punitives will likely be reduced under Texas law, but it’s still a stinging loss for Reynal—the cherry on top of his misery sundae.
Other lawyers in the news:
The Senate confirmed all seven of President Joe Biden’s nominees to the U.S. Sentencing Commission.
Governor Ron DeSantis (R-Fla.) suspended Andrew Warren, the elected state attorney of Hillsborough County (Tampa), after Warren announced he wouldn’t prosecute anyone who seeks or provides abortions in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
The defense lawyers representing the Parkland school shooter could not help crying during heartbreaking victim-impact statements at his sentencing, which will determine whether he gets the death sentence or life imprisonment.
Amber Maiden, an employment lawyer practicing in Virginia and Maryland, got suspended in Maryland after sending her client an antisemitic, 20-page letter that the Maryland Court of Appeals described as “laced with statements that are offensive, demeaning, personally insulting, profane, and premised on harmful religious, racial, and ethnic stereotypes.”
In memoriam:
Harry Jackson III, a partner in the Atlantic City office of Fox Rothschild, passed away at 33, after a car accident.
Jillian and Lindsay Wiener, the 21- and 19-year-old daughters of Lewis Wiener, a partner in the D.C. office of Eversheds Sutherland, died in a terrible house fire while on vacation with their family.
May they rest in peace.
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