"It's 100 percent real and the media still ran with lies that I was saying it wasn't real, great, it's incredible," said Jones in the clip. "They won't let me take it back or they just want to keep me in the position of being the Sandy Hook man. I really do want to try to change things and hopefully be a more positive force when it comes to issues."
I think that was Jones outside the courthouse. Had he said it in the courthouse, it would be game over, because he just admitted to the elements of defamation. Not that he needs to at this point; he failed entirely to respond to this (and two other, as I understand) lawsuits, which is why this trial is over damages, not liability. Now he wants to "take it back," but that only proves the plaintiff's case that he lied. He thinks he has a First Amendment defense somewhere; but he doesn't and he never did.
But either way, admitting to the elements leaves only one question: how much should he pay?
And then there's the lawyers:
I'm reaching back to my days of civil litigation, ended over 30 years ago now (damn! Getting old is not for the faint of heart!), and reflecting on what this is asking for.
First, this motion only seems to cover the medical records of Sandy Hook plaintiffs from an action in Connecticut (no, there is no HIPPA violation here. Pace "legal" (as in ignorant) Twitter. Civil discovery is very wide ranging, and medical records would go toward proving damages, anyway.).
Second, the communications between counsel don't say what defense counsel wants them to say. Plaintiff's counsel is saying "I think you sent the wrong thing." He doesn't say "So we'll just pretend this never happened and send it all back and scrub it from our system."
I handled a lot of document production (term of art) in civil suits when I worked as a paralegal (before law school). It was one of my major jobs. Had I ever released anything I wasn't supposed to produce, I'd have lost my job instanter. But the partners also impressed on the lawyers that the lawyers were the ones responsible for the actions of staff, like me. And if we ever received something we weren't supposed to have, we weren't obligated to return it under some "gentlemen's agreement" rule of procedure. You screwed up, we took advantage.
Which still overstates the case. The text messages were requested, I understand, and Jones testified in court yesterday he didn't have them. That's when plaintiffs lawyer said they had the texts Jones said were lost. He should have produced them, and when the plaintiffs got them from Jones' lawyers, they were perfectly entitled to use them.
But, as I say, this motion seems to be aimed at the medical records. Sensible, since there is a greater protection of medical records than text messages. That's why the fourth page goes into the language of the protective order. Except the motion is trying to use those records to "claw back" the text messages, without ever mentioning the text messages. And what's the basis for that?
Jones' lawyers asked plaintiffs lawyers to pretty please "disregard the link." A true gentleman would have done so, donchaknow?
They also thought the text messages included in the link were ones already produced in Connecticut. Which is not what their client thought, or apparently testified to (by swearing under oath the documents previously produced were all held in his possession responsive to the request).
Here's the rest of the motion (excluding page 7, which you can read at Turkewitz twitter feed, if you like):
There remains the problem of conflating medical records confidentiality with text messages which were covered by a production request and never revealed; indeed, their existence was denied. Defense counsel would prefer to just gloss over that little fact and move on to clawing back what the jury has already heard, probably trying to set up a mistrial.
Bottom line: there's no provision in any court order requiring those text messages remain confidential, or finding that plaintiffs lawyers cheated by not disregarding the link, as any gentleman would (harumph!). The judge has already implicitly ruled on this by not bringing up the matter in open court (nor did defense attorneys, so far as I know. The time to object was during Jones' testimony. This motion amounts to little more than ass-covering so the malpractice carrier won't find a loophole to deny coverage for being such obtuse idiots.). The horses are out, and the barn has burned down; and now Jones' lawyers want permission to close the barn door. I'd go so far as to say they've failed to preserve their error, and point out the biggest error was lying to opposing counsel in the first place.
Kind of hard to harumph that the plaintiffs counsel were not gentlemanly when defense counsel did not act as gentlemen in the first place.
Funny how often the client is as incompetent as the legal counsel. It's a Trumpian model.
Having written that, I find the judge has already heard this motion. Again, full details at this Twitter feed, but let's cut to the chase:
As I was saying: text messages are not "confidential," and should have been produced anyway. And the judge will gladly rule on privilege, if defense counsel wants it that way. And yes, Jones' lawyers were going for a mistrial. This preserves the issue for appeal, but my guess is the appellate court will agree: the text messages should have been produced in the first place.
Fin.
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