Texas AG joins legal fight to unseal Russell Budd’s testimony on famed asbestos memo

By: David Yates

Attorney General Ken Paxton is asking an appellate court to reverse a lower court that refused to unseal testimony given by renowned plaintiff’s attorney Russell Budd on the “Terrell memo.”

The Terrell memo, considered by some to be a “cheat sheet,” purportedly revealed 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.

In late 2016, Christine Biederman, a Dallas lawyer and freelance journalist working on behalf of a documentary filmmaker, intervened in a two-decade old asbestos suit filed in Travis County, seeking to unearth the deposition of Budd, the current president of Baron & Budd — a Dallas-based law firm specializing in toxic torts.

Biederman and her client, Paul Johnson Films, suspect the testimony has relevancy to ongoing asbestos litigation and believe the deposition is also relevant to Johnson’s 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, Judge Orlinda Naranjo, 419th District Court, ruled the court did not have jurisdiction over the case.

An appeal soon ensued and on Dec. 15 Paxton filed an amicus brief in the case, 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.

“Amicus Ken Paxton, Attorney General of Texas, has an interest in this case because of its potential impact on Texas citizens and governmental bodies,” Paxton’s brief states.

“Consequently, the trial court erred in dismissing this case for lack of jurisdiction without affording Ms. Biederman the opportunity to demonstrate that, even if unfiled, the deposition in this case concerns ‘matters that have a probable adverse effect upon the general public or safety’ and thus is a court record that should be unsealed.”

Although the case in question 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.

On Jan. 3, Baron & Budd filed a reply brief, asserting Biederman’s “failure to meet her burden of proving that the Budd deposition is a court record defeats all of the AG’s arguments.”

In its brief, the firm maintains “there is nothing remarkable” about the filing or its “relationship to Baron & Budd’s current position.”

The issue is currently before the First Court of Appeals in Houston.

Austin attorneys Charles Herring and Jason Panzer, malpractice lawyers who have counseled some of Texas’ most high-profile attorneys, represent Baron & Budd.

Biederman is also working with Paul Walter, Esq., attorney for the Jackson Walker law firm in Dallas.

Case No. 01-17-00263-CV