Dallas Court of Appeals, No. 05-22-00292-CV (March 1, 2023)Justice Molberg (Order, linked here) In the most recent episode in this long-running saga, Orca Assets appealed from the trial court’s $2.4 million award of fees and costs against it. Because this particular aspect of the dispute had been severed years ago, Orca asked that two volumes of the sealed 12-volume clerk’s record from a 2013 substantive appeal in the main case be imported into this current fees and costs appeal. In January, Dallas Court of Appeals Justice Ken Molberg issued an order (linked here) granting that request, but noting that “the clerk’s record in [the earlier appeal] appears to have been filed under seal in accordance with an agreed protective order rather than a sealing order under Texas Rule of Civil Procedure 76a.” So, he further ordered that the imported volumes would “remain under seal only temporarily to allow the parties an opportunity to obtain a sealing order in compliance with rule 76a.” The order warned the parties that the Court would unseal those volumes unless they obtained that sealing order. They didn’t. So, Justice Molberg kept his promise and issued an order striking the sealed volumes of the record and ordering the district clerk to refile them “without seal.” Not long ago, Justice Craig Smith filed a concurrence to an en banc decision (in a different case) for the express purpose of addressing documents sealed on appeal and the application of Rule 76a. Surveying the relevant authorities, he concluded:Rule 76a governs the sealing of records or documents filed in the court of appeals, so the appellate record should not be sealed unless and until the trial court has entered a sealing order after following the procedures of Rule 76a.If the trial court has not entered a Rule 76a se

In cases involving TUTSA issues, courts must preserve the secrecy of an alleged trade secret by reasonable means and freely grant protective orders, including orders sealing records. Prior to the passage of TUTSA, the sealing of court records in misappropriation cases was governed entirely by Texas Rule of Civil Procedure 76A, which triggered a detailed sealing process, including a public posting, notice to the Texas Supreme Court, and a public hearing.However, despite its good intentions, after enactment, the scope of TUTSA’s directive to “preserve the secrecy of trade secrets” remained unclear. Did TUTSA provide an independent basis for sealing records, displacing the extensive sealing mechanisms under Civil Procedure Rule 76A?

The morning of the hearing, the lawyer filed a motion to compel answers to questions the judge had refused to answer at the deposition and also asked for discovery sanctions, attaching to the motion a transcript of the deposition. At the hearing, the court granted the nonsuit and asked for briefing on the motion for protection.On the Run This rapid turn of events was followed closely by the media, and The Dallas Morning News and The Texas Lawyer intervened in the lawsuit as provided in Texas Rule of Civil Procedure 76a to obtain release of the transcripts of the judge’s deposition and the witness statements. In addition to papers on file with the court, Texas Rule 76a also defines, as court records, discovery “not filed of record having a probable adverse effect on the public health and safety, the administration of the office and the operation of government.”

ovenant buy out fee” it routinely included in contracts with physicians and hospital client to ensure compensation for their recruitment efforts, and that this fee was a reasonable royalty for Harvey/James’s trade secret misappropriation that the jury should consider.The court rejected this evidence as mere conclusory statements unsubstantiated by facts, noting “…Rupe’s affidavit, offers little more than a fee range basis with neither objective evidence of injury associated with any cause of action, nor an amount established with reasonable certainty.”The trial’s court of summary judgment as to all of ESS’s claims was therefore upheld.As an important aside, the court further commented on the parties incorrect assumption that certain summary judgment evidence was filed under seal where pursuant to confidentiality and protective orders designating it as confidential.In dismissing the reference to the evidence purportedly under seal, the court bluntly noted, “Without full compliance with Rule 76a of the Texas Rules of Civil Procedure, no document may be filed under seal. Confidentiality and protective orders are purely agreements between parties to identify and facilitate the exchange of confidential information subject to discovery but has no bearing on, or authority to, seal records, either in the trial court or on appeal. No clerk record was submitted under seal and therefore no action is required by this Court.”TakeawaysWhen responding to a no-evidence summary judgment with a client affidavit, the prudent practitioner must ensure its summary judgment evidence is not merely conclusory but instead is premised upon underlying facts that are tied to the elements of its claims.In terms of damages, this case appears to require the focus to be on objective evidence of the alleged injury and which establishes amounts sought with reasonable certainty.Moreover, this case is a reminder that a prudent practitioner must comply with Texas Rule of Civil Procedure 76a in order to appropriately file evidence under seal; pointi