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July 31, 2019 Practice Points

Court Sanctions Lead to Denial of Opportunity to Pursue Motion to Dismiss

The contentious Alex Jones litigation has raised a series of issues of interest that can arise in the pretrial phase.

By Michael Roundy

Courts possess great latitude in crafting sanctions when a party abuses the discovery process or engages in other, worse conduct. The scope of that discretion will be tested in an appeal by Alex Jones to an order entered in the initial phase of a suit against him, in which the court denied Jones the “opportunity” to even bring a special motion to dismiss on free-speech anti-SLAPP (strategic lawsuit against public participation ) grounds.

The complaint (Lafferty, et al. v. Jones, et al., Conn. Super. UWY-CV18-6046436-S) alleges that, following the Sandy Hook school shootings of December 14, 2012, Jones and others engaged in a conspiracy to deny that  the shootings even occurred by claiming that the event was a government-backed hoax. Specifically, the plaintiffs—families of several of the victims—allege that Jones and others have perpetuated the “unspeakable lie that the shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.” The complaint asserts claims of conspiracy resulting in defamation, negligent and intentional infliction of emotional distress, and violation of the Connecticut Uniform Trade Practices Act.

The defendants, including Jones and the company that runs his radio and internet talk show, InfoWars, brought a special motion to dismiss the complaint, on the grounds that discussion of the government-hoax theory on the Infowars program is protected speech and that the Connecticut anti-SLAPP statute shields them from suit. Whether that position has merit or not may never be decided.

An anti-SLAPP motion imposes a mandatory stay on discovery, except where good cause is shown to permit discovery relevant to the motion. The parties were permitted to engage in such limited discovery, though the docket reveals it was quite extensive, and went on for six months. Interrogatories were interposed and objected to. Document requests were served and objected to. Discovery conferences were held and failed to resolve the discovery disputes. Claims of ethical violations by counsel were leveled. Depositions of Jones and several others, including one non-party, were requested by plaintiffs and permitted by the court. A protective order was entered.

When the defendants failed to provide discovery responses, the plaintiffs moved to compel and also for sanctions. The plaintiffs argued that because limited discovery is expressly authorized in the anti-SLAPP statute, and the defendants had willfully disregarded the court-ordered discovery arising from that provision, “the Jones Defendants should not be further permitted to claim [the statute’s] benefits,” and as a result their special Anti-SLAPP motion to dismiss should be denied.

One day before the scheduled motion hearing, plaintiffs’ counsel filed a further motion, asking the court to review portions of an Alex Jones broadcast from just three days prior, in which Jones purportedly threatened plaintiffs’ counsel and claimed that the same counsel “tried to frame Jones by planting child pornography in discovery materials produced by Jones.” The court immediately ordered counsel to be prepared to address this matter at the next day’s hearing.

The transcript of that June 18, 2019, hearing reveals why the court determined it was appropriate to sanction the defendants. The court noted that discovery had been repeatedly marked by obfuscation and delay on the part of the defendants, who, despite several court-ordered deadlines, continued to object and fail to “produce documents which might help plaintiffs make their case.” The court stated that the defendants’ ongoing objections had already been ruled on by the court months earlier, but the defendants had still not complied. The court said that the defendants disregarded deadlines and refused to produce Google Analytics data they had the power to produce, noting that the defendants “miss the mark” when they assert they could not produce the data because they did not have physical possession of it. The court called the defendants’ discovery failures “inexcusable” before turning to the alleged threats by Jones in his recent broadcast.

On that issue, the court noted its authority to address out-of-court bad-faith litigation conduct, particularly where a party has “harassed or threatened or sought to intimidate counsel on the other side” and its “obligation to ensure the integrity of the judicial process and functioning of the Court.” The court found Jones’s broadcast conduct indefensible, unconscionable, despicable, and possibly criminal. The court found that Jones accused plaintiffs’ counsel of planting child pornography in his document production (an allegation that, notably, Jones retracted in a later broadcast), and that in the course of a 20-minute rant, Jones also threatened, harassed, or intimidated plaintiffs’ counsel. The court also rejected Jones’s contention that he was “enraged” during the broadcast, stating that in the court’s view, it was “an intentional calculated act of rage for his viewing audience.”

As sanction for this conduct, the court denied the Alex Jones defendants “the opportunity to pursue their special motion to dismiss” and indicated that it would award attorney fees to plaintiffs’ counsel that relate to the child-pornography allegations. The court also warned that, if there is continued obfuscation, delay, and “tactics like I’ve seen up to this point,” the court would entertain a motion to default the defendants.

Although the court ordered ordinary discovery to be conducted, the Jones defendants applied within a week for certification to appeal the court’s denial of the opportunity to pursue their statutory anti-SLAPP special motion to dismiss. The application for appeal was granted, and on July 10, 2019, the defendants moved to stay all proceedings in the trial court, pending the outcome of the appeal.

Is it within the scope of judicial authority to deny a party the right to even pursue a statutory motion to dismiss as a sanction for discovery violations and/or threats and intimidation of opposing counsel? The Connecticut appellate courts will have to answer that question.

This contentious litigation has raised a series of issues of interest that can arise in the pretrial phase, from routine motions to compel to rare motions for the presiding judge to recuse himself or herself; from motions to transfer venue to motions for a highly unusual form of sanctions. If the case were not odd enough already, a chilling follow-up was posted to the docket by the judge, three days after she imposed the sanctions: “. . . the court was contacted by the Connecticut State Police who were reportedly contacted by the FBI regarding threats against the undersigned [judge] made by individuals on the defendant Infowars website.”

Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts.

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