Steven Goode, a professor at the University of Texas law school who specializes in trial and appellate law, said in an interview that if what Mr. Bankston said on Wednesday was accurate and that Mr. Jones’s lawyers had failed to take action after they learned what they had done, “I would find that stunning.”
Why should we believe what the parents’ lawyer said?
Mr. Green said Mr. Bankston was almost certainly telling the truth about how he had come into possession of the phone records, for two reasons. First, lawyers for Mr. Jones did not contest his presentation in court, which allowed the records to be admitted as evidence. Second, it would be a disciplinary violation for Mr. Bankston to lie to the judge.
In most states, ethics rules require plaintiffs’ lawyers to notify their defense counterparts of inadvertent disclosure. Texas, however, does not have such a rule. Still, Mr. Bankston said in court on Wednesday that he had informed Mr. Jones’s team of the disclosure, saying, that “when informed,” the lawyers “did not take any steps to identify it as privileged or protect it in any way.”
Professor Goode said that if Mr. Bankston’s description was accurate, he had given a lawyer for Mr. Jones the opportunity to assert privilege over the material in a more generous way than was required.
On Thursday, a lawyer for Mr. Jones, F. Andino Reynal, filed an emergency motion requesting that a judge order Mr. Bankston to return all hard copies of the documents produced from the cellphone records, to seal those already entered into evidence and to give his team a chance to provide replacement copies of relevant evidence.
At a hearing on the motion, Mr. Reynal also called for a mistrial, based on Mr. Bankston’s use of the cellphone records. He said that after the documents had been turned over inadvertently, he had asked Mr. Bankston to disregard the link he had been sent and had expected the request to be honored.