By: David Yates
A Texas judge’s refusal to unseal testimony given by renowned plaintiff's attorney Russell Budd on the “Terrell memo” was a “travesty,” says the lawyer who filed the motion to unseal it.
Late last year, Christine Biederman, a Dallas lawyer and freelance journalist working on behalf of a documentary filmmaker, intervened in a 24-year 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.
While the case in question was dismissed a decade ago, and Budd’s deposition on the Terrell memo was offered 10 years prior to that, Biederman and her colleagues suspect the testimony has relevancy to ongoing asbestos litigation and could play a role in their upcoming documentary dubbed "UnSettled," a film developed to cast light on the business of asbestos lawsuits.
The Terrell memo, considered by some to be a “cheat sheet,” purportedly reveals 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.
On Jan. 31, Judge Orlinda Naranjo, 419th District Court, ruled the court did not have jurisdiction over the case, brushing off Biederman’s motion to unseal following a 35-minute hearing.
When asked if the judge made the right call, Biederman answered: “Absolutely not.”
“It’s a travesty whenever court records are not open and available to the public – it’s America 101 that our courts should be open,” Biederman told the Southeast Texas Record. “When you file a case in a publicly funded system, the presumption should always be the public has a right to know.
“Secrecy is the enemy of justice.”
Perhaps ironically, Judge Naranjo sided with Baron & Budd’s counsel and found the filmmaker's request to film the hearing untimely, as the motion to record was made the day of. However, the judge had no issue allowing Baron & Budd’s rather lengthy response, which was filed the day before, despite Biederman’s objections to its timeliness.
“What can I say? I got a little bit hometowned,” Biederman said.
Claiming she was blindsided, Biederman was served with the response only hours before the hearing, a reply several hundred pages long and at least “a couple of inches thick,” she says.
“I was a little surprised,” Biederman said. “Let’s just say they (Baron & Budd) spent a lot of money to try and keep that deposition under wraps.”
The architects of the response were Austin attorneys Charles Herring and Jason Panzer, malpractice lawyers who have counseled some of Texas’ most high-profile attorneys, including Steve Mostyn at a sanctions hearing against him last May.
When Biederman first served Baron & Budd with her motion back in November, she didn’t receive any reaction at all, saying the firm only took notice once she set the matter for hearing.
“They acted like they didn’t care at first,” she said.
Most of the case files in the asbestos suit had been disposed of, a development that forced Biederman to piece events together from a patchwork docket.
Biederman, a former U.S. assistant attorney, says she was “shocked” to find out most of the case records had been destroyed.
“I have never heard of anything like this in any other county in Texas,” she said. “I think that someone clearly screwed up.”
During the hearing, Budd’s counsel cited a Travis County statute that allowed all the case files to be destroyed.
Biederman and her colleagues are currently weighing the option of an appeal.
They believe Budd’s deposition could even be relevant to the 2014 Garlock Sealing Technologies bankruptcy case that exposed attorney “double-dipping” in bankruptcy asbestos trusts.
In January 2014, U.S. Bankruptcy Judge George Hodges ruled in a landmark decision that plaintiffs attorneys had been withholding evidence that could have been submitted to bankruptcy trusts that were established by companies frequently hit with asbestos claims. Claimants withheld that evidence from the bankruptcy system while pursuing lawsuits against solvent companies.
They did so in order to maximize recovery in both systems, he ruled.
Garlock had been permitted full discovery into the claims of 15 individuals and eventually filed racketeering lawsuits against the law firms that represented them.
“It appears certain that more extensive discovery would show more extensive abuse,” Hodges wrote. “But that is not necessary because the startling pattern of misrepresentation that has been shown is sufficiently persuasive.”
Ultimately, Hodges ordered Garlock to put $125 million in its trust – more than $1 billion less than plaintiffs attorneys had requested. Hodges ruled that Garlock’s past record of verdicts and settlements was not an indicator of future liabilities because of the actions of plaintiffs attorneys.
Garlock eventually agreed to put more than $350 million in its trust and settled racketeering cases against several law firms. John Crane Inc. has picked up the racketeering claims against two of those.
The evidence Garlock submitted was unsealed by a Legal Newsline lawsuit.
As of Feb. 6, Judge Naranjo has not responded to a request for comment on the Budd deposition ruling.