Author: David Yates, Jan 31, 6:21 PM
AUSTIN – A documentary filmmaker seeking to obtain the deposition of one of Texas’ most well-known plaintiff’s attorneys was shut down by a district judge Tuesday, as the court refused to unseal testimony linked to an asbestos memo that has been the subject of much controversy for the past two decades.
While the Baron & Budd case has been cleared off the court’s docket for more than a decade, Biederman believes Budd’s deposition, which is presumably centered on the “Terrell memo,” has relevancy to current asbestos litigation and would eventually play a role in the documentary she is helping to produce.
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.
Those seeking to produce the asbestos litigation documentary sought to videotape the hearing to unseal. However, Budd’s counsel objected and the judge refused to allow media to use any digital recording methods.
Much of the hearing centered on whether the deposition was an actual court record and 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 the hearing, Biederman argued that Budd’s deposition on the memo is important to the general public and the Texas Supreme Court has made it clear that court documents be open.
Conversely, Budd’s counsel contended that since the case was so old most of the files had been destroyed, and the deposition was an in camera proceeding that may never have been filed as a court record.
Judge Orlinda Naranjo, 419th District Court, ruled the court did not have jurisdiction over the case and the deposition was exempted from Rule 76a.
Biederman could not say if she plans to appeal the ruling.
Budd was represented by attorneys Chuck Herring and Jason Panzer at the hearing.
In her motion to unseal, Biederman says the Baron & Budd asbestos case of Beverly Brown v. Keene Corp. et al began just as routine as the “thousands of other asbestos lawsuits filed over the past forty-plus years in the district courts of Travis County.”
“And then, in the fall of 1997, something extraordinary occurred.”
During a deposition in an unrelated asbestos lawsuit, a Baron & Budd associate accidentally produced a memo entitled ‘Preparing for Your Deposition,’ which appeared to coach the firm’s clients.
The memo, which Baron & Budd alleged had been written by a paralegal named Lynell Terrell, was widely distributed by defense counsel, who began to conduct discovery into whether and how the memo had been used in hundreds of the firm’s asbestos cases, including Brown v. Keene, the motion states.
Biederman asserts the remaining existing court records in the Brown asbestos litigation show that at some point Baron & Budd was apparently ordered to produce a list of cases in which witnesses had been prepared using the Terrell memo.
Presumably in response, the firm filed a motion to seal court records on Sept. 29, 1997. Without a hearing, a protective order was entered that same day, which, among other provisions, commanded Budd to appear for a deposition in October of 1997.
“Finally, on information and belief, the Order restricted dissemination of Mr. Budd’s deposition to attorneys of record in this case,” the motion to unseal states.
“In so doing, the Court apparently declared Mr. Budd’s deposition ‘sealed,’ although whether the term was used in the Court’s September 29, 1997 Order, on the record during the deposition, or in both places is unclear.”
Biederman believes Budd’s deposition is relevant to issues in ongoing asbestos litigation – a topic she’s reported extensively on in the past and the current subject of the documentary film project.
“In this case, the deposition of Russell Budd contains information on how and under what circumstances the law firm of Baron & Budd used the Terrell memo and others like it, as well as how the memo was created and the source(s) of the information contained therein,” the motion states.
“As previously discussed, this information touches upon, among other topics, a ‘cheat sheet’ used by Baron & Budd’s lawyers and paralegals that appeared, and still appears, to help clients identify products and exposures that they might not actually remember and, in fact, might never have been exposed to.”
Cause No. D-1-93-GN-010952