How do you unseal a court record that doesn't exist?

By The Record | May 1, 2018

If a court record that doesn't exist can be kept sealed, surely it can be unsealed, too. If it doesn't exist, what's the point of keeping it sealed? 

Courts could seal and unseal imaginary documents all day long and it wouldn't matter to anyone, but the unsealing of one particular, allegedly nonexistent document does seem to matter – to a prominent attorney and two appellate judges.

Given that county courthouses sometimes trash older records from disposed cases, First Court of Appeals Justice Evelyn Keyes doubts that attorney Russell Budd's 20-year-old deposition regarding the infamous “Terrell memo” still exists.

“A trial court can’t have jurisdiction over a court record that may not exist,” comments fellow Justice Terry Jennings, who shares Keyes' skepticism. 

Allegedly authored by Baron & Budd paralegal Lynnell Terrell, the Terrell memo is a multi-page “guideline” for clients claiming to be victims of asbestos exposure. After it was mistakenly turned over to defense attorneys during an asbestos trial two decades ago and questions arose as to whether or not its contents constituted subornation of perjury, Budd was deposed and his deposition sealed.

Last December, Attorney General Ken Paxton filed an amicus brief with the appellate court in support of documentary filmmaker Christine Biederman's request to have the trial court unseal Budd's deposition.

The comments of Justices Keyes and Jennings are curious. If they suspect that Budd's deposition no longer exists, why not find out, then make a decision?

Budd's deposition clearly did exist twenty years ago when it was sealed. If it doesn't exist now, why are Baron & Budd fighting to keep it from being unsealed?

Could it be because Biederman told the trial court that she turned up several people who have copies of the deposition that they would share with her, were it not sealed?

Here's the thing: If it doesn't exist, why all the effort to keep it sealed? If it doesn't exist, why not unseal it? If it turns out that it does exist, it can always be resealed.

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