Texas justices keep Russell Budd’s testimony on asbestos memo sealed
By: David Yates
HOUSTON – A Texas appellate court has opted to keep a deposition offered by one of the state’s most renowned asbestos attorneys on the infamous “Terrell memo” sealed away from the public.
Two decades ago, 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 nearly two years.
In late 2016, Christine 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.
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 then ensued.
On Aug. 14, the First Court of Appeals affirmed the trial court’s order dismissing Biederman’s motion for want of jurisdiction.
Biederman had argued on appeal that the trial court erred by granting the Baron & Budd’s plea to the jurisdiction and dismissing the case without deciding the motion to unseal on the merits because Rule 76a of the Texas Rules of Civil Procedure expressly grants continuing jurisdiction in the circumstances of the case.
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.
Baron & Budd argued that the trial court lacked jurisdiction to hear Biederman’s motion because the court’s plenary power expired Aug. 6, 2006, and because the trial court did not have continuing jurisdiction under Rule 76a(7), which deals with continuing jurisdiction.
Rule 76a(7) states any person may intervene as a matter of right at any time before or after judgment to seal or unseal court records. A court that issues a sealing order retains continuing jurisdiction to enforce, alter, or vacate that order.
The battle to unseal even caught the attention of Attorney General Ken Paxton.
The state’s chief lawyer 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.
During oral arguments, justices expressed their doubts that the testimony still existed, as county courthouses routinely trash older records from disposed cases.
When Biederman first made her argument to the trial court, she told the judge that several people have told her they still have copies of the deposition, but they couldn’t give it to her because of the sealing order.
Most of the controversy surrounding the case centers on whether the deposition is an actual court record, as the testimony may have not been filed as a court record.
“Because Biederman failed to establish that the Budd Deposition was a court record, she failed to demonstrate that the provisions of Rule 76a, including the jurisdictional provision Rule 76(7) applied to her motion,” the First Court’s opinion states.
“And because the plenary power of the trial court had long expired, the trial court correctly determined that it lacked jurisdiction to consider Biederman’s request.”
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.
Austin attorneys Charles Herring and Jason Panzer, malpractice lawyers who have counseled some of Texas’ most high-profile attorneys, represent Baron & Budd.