A reporter covering the issue put it like this: “If a 20-year-old court record, which may or may not be an actual court record, no longer exists, how can jurisdiction exist – is the question justices raised in an asbestos case that’s even caught the attention of Texas’ chief lawyer.” By “chief lawyer,” the The Southeast Texas Record, https://setexasrecord.com/stories/511394376-justices-question-whether-russell-budd-s-testimony-on-asbestos-memo-still-exists a legal newspaper that’s a leader in covering such things, means Texas Attorney General Ken Paxton, who submitted a detailed “friend of the court” brief supporting unsealing the document – or should we now say “alleged document?” The Record’s David Yates also reported that “…. during the proceeding, Justice Evelyn Keyes was very vocal in her doubts that Budd’s testimony still exists, as county courthouses routinely trash older records from disposed cases…” He also noted that “… Justice Terry Jennings shared similar concerns, telling attorneys ‘… a trial court can’t have jurisdiction over a court record that may not exist.’” In his story, Yates does not address questions of jaws dropping to the chamber floor. At issue is a deposition by a Texas attorney named Russell Budd, part of the politically connected Dallas-based firm Barron & Budd that rose to prominence, in large part, due to successfully representing asbestos victims. The Russell Budd deposition from 20 years ago reportedly addresses a “witness coaching memo” that was as controversial then as it is now.
There's even a graphic, shared in the industry, that illustrates how many other firms got their start with B&B.A reporter who helped break the story, with the headline "Toxic Justice," http://www.dallasobserver.com/news/toxic-justice-6406744 for the Dallas Observer newspaper, Christine Cole Biederman, has sought to unearth that deposition. As a former federal prosecutor and investigative reporter, Biederman has been on point trying to expose the potentially fraudulent activities of some asbestos lawyers.
Last year, an Austin judge ruled the case lacked jurisdiction in the matter, in effect keeping the document secret without addressing the virtues of Biederman’s argument. In the event that a court that ordered a document sealed now claims it has no jurisdiction over said document is not Kafka-esque enough, how about the judges hearing the appeal literally questioning reality? To understand just how surreal that must have been, let me say that I’m not involved in asbestos litigation, but I’ve reported from trade conferences and have been assured that several attorneys have that exact deposition.
They just cannot share the document because of concerns about the old court order. Dallas attorney Paul Watler, a well-known Texas First Amendment lawyer representing Biederman in her appeal, reportedly responded with the point that attorneys who might have the deposition feel constrained about sharing it. “Constrained” may become more important. A batch of civil racketeering lawsuits against asbestos litigation firms no doubt build on that “coaching memo” and links to Baron & Budd do not stop there. The famous firm has been a de facto incubator for other top firms and an illustration that “all roads lead to Baron & Budd” has been in circulation for at least one year, a clear connect-the-dots effort to link other firms to the witness-coaching controversy. Granted, the appeals court's “existence” argument grabbed headlines, but it may be even more curious that judges took it upon themselves to question the relevance of the Budd deposition, presumably because of how much time has passed.
The relevancy question becomes important because part of Texas law, according to Attorney General Paxton’s argument, which asserts that “… court records may include unfiled discovery that have a probable adverse effect upon the general public health or safety. Tex. R. Civ. P. 76a(2)(c); see Kepple, 970 S.W.2d 520. Necessarily, without access to the deposition, Biederman cannot conclusively demonstrate to the Court that Rule 76a(2)(c) applies. This Court should remand this case to the trial court for consideration and entry of a finding as to whether the trial court has determined conclusively that Rule 76a(2)(c) does not apply to authorize the unsealing of the deposition in this case, even if that discovery was unfiled.”
In other words, a legal Catch 22: Biederman can hardly prove the deposition illustrates an “adverse effect” if she can’t see the deposition. More to the point, perhaps, is that Texas and other states have recently passed laws forcing transparency on nearly 100 bankruptcy trusts set up to pay asbestos victims for their injuries.
Many of those victims are our military veterans, especially those in the Navy, who served surrounded by asbestos products required by their government. A past National Commander of the American Legion, probably the largest vets group to take a stand on the trust transparency issue, even attended the Biederman appeal hearing in support of unsealing the deposition.
It seems that with a high-profile state AG involved, along with the nation’s largest veteran’s organization and many experts focused on that so-called “coaching memo” –– and, by extension, testimony related to the historic or current use of such tactics – the issue could hardly be more real. The unsealing of this deposition could have real impact on alleged civil racketeering leveled against the plaintiffs bar.In a few months, we’re told, the Texas state appeals court will let us know its reality.