SE Texas Record

Tuesday, October 15, 2019

Phipps Deacon Purnell argues disclosure of solicitation of Bastrop County for opioid litigation would expose trade secrets

By David Yates | Sep 19, 2019


Martin Phipps of Phipps Deacon Purnell

BASTROP – Rather than freely fork over the records, Bastrop County and Phipps Deacon Purnell have turned to Texas’ chief attorney in hopes of keeping just how the firm went about soliciting county officials for an opioid lawsuit payday under wraps.

Earlier this month, the county received an open records request seeking all communications from any attorney or law firm seeking employment to bring litigation on its behalf against opioid manufactures, according to documents obtained by The Record.

Bastrop County then forwarded the request to Phipps Deacon Purnell, a San Antonio law firm representing the county in its opioid lawsuit.

On Sept. 16, the Bastrop County District Attorney’s Office submitted a request for an Attorney General Decision on the matter.

The following day, Phipps Deacon Purnell sent a letter to the AG’s Office detailing why exactly the Open Records Division should determine the requested records to be exempt from disclosure.

“Ultimately, communication and records regarding solicitation of the County’s business constitute trade secrets and may be properly withheld under section 552.110 of the Texas Government Code,” the letter states.

Section 552.110 deals with the confidentiality of trade secrets.

Essentially, the firm is arguing that records of its solicitation constitute a trade secret because they show legal theories, litigation strategy and damage models.

“Knowledge of this information by a competitor can be used to gain advantage over Special Counsel (Phipps Deacon Purnell) in the Texas Opioid Litigation,” the letter states. “Such information is an integral part of Special Counsel’s business operations.”

Specifically, the open records request seeks all attorney solicitation communications, which includes e-mails, letters, marketing materials and records of “unsolicited” calls and in-person meetings the firm may have had with the county.  

The request also seeks all records indicating whether any attorney or law firm “initiated” communication with the county to obtain employment in order to sue opioid manufactures.

In the letter, Phipps Deacon Purnell references an “Exhibit C,” which is “a solicitation sent by Special Counsel to Bastrop County” that includes factual analysis, damage models, potential causes of action against potential defendants, and the firm’s analysis of anticipated defenses.

“Special Counsel’s competitors could use this information to their advantage,” the letter states. “For example, defense counsel could use elements of Special Counsel’s trial strategy to craft their opposing trial strategy. Other plaintiffs’ firms would also use the information contained in Exhibit C to craft competing bids in future solicitations.”

The letter is signed by Jason Milne, attorney for Phipps Deacon Purnell.  

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Organizations in this Story

BASTROP COUNTY DISTRICT ATTORNEY BASTROP COUNTY TX PHIPPS ANDERSON DEACON