A Conspiracy Theorist's Phone, Disclosure, And The Challenges Posed By BIM Files

• Published date: 05 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: HKA
• Author: Chris Hughes

Whilst they might not seem immediately related, the Alex Jones defamation case on the Sandy Hook school shooting raises interesting issues regarding the disclosure of BIM files.

An essential principle of the client/lawyer relationship is the privileged status of information shared between them. This information might be contained in traditional media, such as hard copies of letters or more sophisticated digital drawing files. Two recent and strikingly different cases highlight the potential for the inadvertent disclosure of privileged information and the importance of correctly understanding what might be contained in a hard or digital file.

In the recent case of Pickett v Balkind,¹ the claimant's lawyer disclosed an unredacted letter to the defendant in support of a request for an adjournment. This letter was disclosed in relation to two paragraphs to support the reasons for the adjournment. However, the letter indicated that the claimant's legal advisor had been involved in drafting the experts' joint statement. Such involvement was a breach of the TCC Guide.

In addition, the claimant's expert report included an opinion that relied upon a previously undisclosed report prepared by a third party. Having relied upon the contents of this third-party report, the defendants sought the disclosure of the report. The claimants attempted to reassert privilege in respect of both the letter and the earlier report. This was refused by HHJ Paul Matthews, who determined that the claimant's actions had disclosed both the third-party report and the full content of the letter.

The case is strikingly similar to the precedent set by Great Atlantic Insurance Co v Home Insurance Co.² In this case Counsel relied upon two paragraphs of a document which also included discussions about the plaintiff's legal strategy.

In both these cases, the accidental disclosure is related to written material which could have been identified before issuing. Whilst the content of a letter or report might be quite transparent, the information contained within a digital file may not be obvious.

In the Alex Jones case, the disclosure of privileged information occurred when his attorney released a file containing a full copy of Alex Jones's phone data. It is unclear how this file came to be released. It could, for instance, have been as simple as someone failing to understand what the file was and what it contained.

Whilst the content of a file titled "Alex_Jones_Phone_Backup" might be quite...