Russell Budd of Baron Budd. HANDOUT.

A Texas appeals court has rejected a journalist’s attempt to unseal a 20-year-old deposition related to an infamous memo produced by Dallas-based Baron & Budd, in which the plaintiffs firm appeared to coach its clients to identify products they may have never been exposed to during asbestos litigation.

According to the recent decision by Houston’s First Court of Appeals, journalist and documentary filmmaker Christine Cole Biederman is seeking to obtain the 1997 deposition testimony Baron & Budd founder Russell Budd gave about the discoverability of the controversial memo.

In the fall of 1997, an associate for Baron & Budd mistakenly turned over the memo to a defense lawyer.

The 20-page memo appeared to suggest answers Baron & Budd clients should provide to opposing counsel independent of the facts, including: “You will be asked if you ever saw any WARNING labels on containers of the asbestos products that said WARNING or DANGER. It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER.”

The defendants later distributed the memo, which led to extended discovery disputes in multiple asbestos cases filed by Baron & Budd.

Defense counsel in an asbestos case filed in Travis County sought to compel Baron & Budd to produce the memo through discovery, but the plaintiffs firm resisted by arguing that the memo was privileged attorney-client communication. To determine whether the document was privileged, then-Travis County Judge John Dietz ordered an in-camera inspection of the document, including a deposition of Russell Budd about the creation of the document. Budd’s deposition occurred in Dietz’ chambers.

The record reflected that Budd’s deposition was filed in the trial court in 1997, but nothing in the record indicates that the deposition transcript itself was ever filed with the trial court. While Dietz ultimately ruled that the memo was not privileged, Austin’s Third Court of Appeals vacated the trial court’s order in 1998, determining that it was privileged.

Biederman, a former reporter with the Dallas Observer who wrote about the memo in 1998, filed a motion in 2016 to intervene in the long-dismissed Travis County asbestos case, seeking to unseal Budd’s deposition pursuant to Texas Rule of Civil Procedure 76a, which governs court record sealing.

While Biederman acknowledged in her pleading that many of the records of the Travis County case went lost or missing after the case was closed in 2006, she attempted to unseal Budd’s deposition for use in a documentary film project.

Biederman argued the deposition was a “court record” within the meaning of Rule 76a, contending that the document was filed with the court, but possibly without a file stamp or any other indication of its recording.

Biederman also argued that the Budd deposition is a court record under Rule 76a because it concerns matters that have a probable adverse effect upon the general public health or safety.

Baron & Budd filed a plea to the jurisdiction opposing Biederman’s motion to unseal the deposition, arguing that the document was not a filed court record under Rule 76a. The firm argued that Budd’s deposition was taken and submitted in camera on issues of privilege and discovery, and did not concern a matter than had a probable adverse effect on the general public health or safety.

The trial court dismissed Biederman’s action, holding that the court lacked jurisdiction since the document sought didn’t fit the definition of a court record.

Her appeal was later assigned to Houston’s First Court by the Texas Supreme Court for docket equalization reasons.

Texas Attorney General Ken Paxton later filed an amicus brief in support of Biederman’s position, arguing that the trial court’s decision that Rule 76a does not mandate the unsealing for Budd’s deposition is inconsistent with the presumption of openness of court records as mandated by Texas law.

In its Aug. 14 decision, the First Court ruled that Biederman had failed to demonstrate that Budd’s deposition was a court record as defined by Rule 76a, and thus failed to invoke the jurisdiction of the trial court to consider her motion.

“Considering the pleadings and the jurisdictional evidence, we conclude that Biederman failed to meet her burden to allege facts that affirmatively establish the trial court’s subject matter jurisdiction over her motion to intervene and unseal the Budd deposition,” wrote Justice Evelyn Keyes. “She failed to provide any evidence that the Budd deposition was a ‘court record’ as required to invoke the procedures set out in Rule 76a, and the trial court’s implied ruling that the Budd deposition was not a ‘court record’ as defined in Rule 76a was correct.”

Paul Watler, a partner in Dallas’ Jackson Walker who represents Biederman, said his client has not yet decided whether to appeal the First Court’s decision.

“The trial court put the cart before the horse in ruling they didn’t have jurisdiction when it’s pretty clear there is continuing jurisdiction in this circumstance,” Watler said. “Our contention on appeal is, the trial court should have exercised that jurisdiction and provided Ms. Biederman a Rule 76a hearing. It was an error for the trial court to conclude that it lacked jurisdiction to conduct such a hearing.’’

Watler explained that Biederman is helping produce a documentary film about the course of the asbestos litigation in the United States. “A lot of that litigation has been characterized by unnecessary secrecy,” Watler said. “Christine and her colleagues were concerned by this example of it and thought it was timely to seek disclosure of this particular deposition, which would shed some light on this important part of American jurisprudence.”

Kevin Dubose, a Houston attorney and partner in Alexander Dubose Jefferson & Townsend who represents Baron & Budd on appeal, said the First Court made the right call.

“The interesting thing is, the memo is widely available” Dubose said, noting that the Baron & Budd memo became the subject of numerous media articles and was once read into the Congressional record.

“But what she wanted here was the deposition of Russell Budd about the creation of that memo. There were multiple problems, and a lot of them were not her fault because the district court records have been destroyed and the appellate court records were destroyed,” Dubose said. “But she could never prove that it was filed. And it has to be filed in order to be a court record.’’

In a 2006 interview with Texas Lawyer, Baron & Budd’s other founder, the late Fred Baron, contended the memo was drafted by an unsupervised paralegal who had shown it to fewer than 20 people out of the 15,000 that his firm represented.

“I think there were folks out there that believed that we must be doing something wrong to be that successful,” Baron said at the time of Baron & Budd, one of the largest plaintiffs firms in the U.S. “But we were successful, because we did things the right way.”