Justices question whether Russell Budd’s testimony on asbestos memo still exists
If a 20-year old court record, which may or may not be an actual court record, no longer exists, how can jurisdiction exist – is the question justices raised in an asbestos case that’s even caught the attention of Texas’ chief lawyer.
Two decades ago, renowned plaintiff’s attorney Russell Budd testified on the “Terrell memo,” a purported “cheat sheet” revealing how Baron & Budd attorneys coached up clients on how to identify asbestos products and exposures that they might not actually remember and might never have been exposed to in the first place.
The legal battle to unseal Budd’s deposition has been waged for more than a year and is currently up on appeal.
Evidently, even Attorney General Ken Paxton is curious what Budd, the current president of Baron & Budd — a Dallas-based law firm specializing in toxic torts, had to say about the infamous memo, as he filed a brief in the case back in December arguing the testimony was improperly sealed.
On April 18, oral arguments were unleashed before a panel of three justices seated on the First Court of Appeals.
During the proceeding, Justice Evelyn Keyes was very vocal in her doubts that Budd’s testimony still exists, as county courthouses routinely trash older records from disposed cases.
She questioned the lack of proof presented by the side seeking to unseal the testimony, calling counsel’s arguments “completely hypothetical” and going so far as to say that in her “book jurisdiction does not exist.”
Justice Terry Jennings shared similar concerns, telling attorneys the case can’t be remanded back to the lower court if there is no jurisdiction.
“A trial court can’t have jurisdiction over a court record that may not exist,” Jennings said.
What does exist, however, is a lingering controversy as to whether the deposition is an actual court record, as the testimony may have not been filed as a court record.
As to whether the testimony still exists, Christine Biederman, the individual fighting to unseal the record, says when she first made her argument to the trial court, she told the court that several people have told her they still have copies of the deposition. But they can’t give it to her because of the sealing order.
In late 2016, Biederman, a Dallas lawyer and freelance journalist whose investigation is being followed by a documentary filmmaker, intervened in a two-decade old asbestos suit filed in Travis County, seeking to unearth Budd’s deposition.
Biederman and Confocal Productions suspect the testimony has relevancy to ongoing asbestos litigation. The deposition could also be relevant to the documentary “UnSettled,” a film seeking to cast light on the business of asbestos lawsuits.
Baron & Budd fought back against Biederman’s efforts to unseal and on Jan. 31, 2017, the trial court ruled the court did not have jurisdiction over the case.
An appeal soon ensued and caught the attention of Paxton.
Paxton filed an amicus brief in the case on Dec. 15, arguing that the trial court erred and did in fact have jurisdiction to determine that Budd’s deposition was not properly sealed under Rule 76a of the Texas Rules of Civil Procedure.
The rule states that a document may be sealed if the substantial interest clearly outweighs presumption of openness and any probable adverse effect that sealing will have upon the general public health or safety.
During oral arguments, Paul Watler, a Jackson Walker attorney working with Biederman, contended fraudulent claimants depleting asbestos trust funds affects public safety.
Although the case is decades old, there’s a possibility Budd’s deposition could be relevant to the 2014 Garlock Sealing Technologies case, which exposed attorney “double-dipping” in bankruptcy asbestos trusts.
Conversely, Kevin Dubose, a Alexander Dubose Jefferson & Townsend attorney arguing on behalf of Baron & Budd and the asbestos plaintiffs, told justices he did not “see how (the deposition) would ever affect public safety.”
Austin attorneys Charles Herring and Jason Panzer, malpractice lawyers who have counseled some of Texas’ most high-profile attorneys, also represent Baron & Budd.