Document Info

DocketNumber: 05-19-00046-CV

Filed Date: 1/22/2019

Status: Precedential

Modified Date: 1/24/2019

  • Order entered January 22, 2019
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-19-00046-CV
    IN RE MARK SCHWARZ, NEWCASTLE CAPITAL MANAGEMENT, L.P.,
    NEWCASTLE CAPITAL GROUP L.L.C.,
    AND GEOWORKS CORPORATION, Relators
    Original Proceeding from the 298th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-08-00144-M
    ORDER
    Before Justices Brown, Schenck, and Reichek
    Before the Court are relators’ petition for writ of mandamus, relators’ motion to seal
    portion of mandamus record, relators’ motion to stay trial, the real party in interest’s response to
    the motion to stay trial, and relators’ reply in support of the motion to stay trial.
    We GRANT the motion to stay in part and STAY the trial court’s September 25, 2018
    order. This stay shall remain in effect until further order of the Court.
    We request that the real party in interest and respondent file their responses, if any, to the
    petition for writ of mandamus by 5:00 p.m., January 24, 2019.
    The trial court has not entered a Rule 76a sealing order in the underlying proceeding for
    the records in Volume 2 of the mandamus record. No rules directly provide for an appellate
    court to seal documents of this type absent a party meeting the requirements of Rule 76a. See
    TEX. R. CIV. P. 76a. Rule of Appellate Procedure 29.3, however, authorizes an appellate court,
    in relation to an interlocutory appeal, to “make any temporary orders necessary to preserve the
    parties’ rights until disposition of the appeal.” TEX. R. APP. P. 29.3; see also TEX. GOV’T. CODE.
    ANN. § 21.001(a) (“A court has all powers necessary for the exercise of its jurisdiction and the
    enforcement of its lawful orders, including authority to issue the writs and orders necessary or
    proper in aid of its jurisdiction.”). Similarly, rule 52.10 authorizes the appellate court to “grant
    any just relief pending the court’s action on the petition” in an original proceeding. TEX. R. APP.
    P. 52.10. Under this authority, we grant relators’ request to seal Volume 2 of the mandamus
    record.
    The central issue in this proceeding is whether the trial court abused its discretion by
    lifting a protective order as to three recordings that relators maintain include privileged
    information and trade secrets. Transcripts of those recordings have been submitted to this Court
    in camera and are part of Volume 2 of the mandamus record, as are other trial court filings
    related to and/or addressing the recordings. If relators prevail, the fact that the transcripts of the
    recordings effectively remained open to public inspection during the pendency of this original
    proceeding would significantly undermine the effectiveness of any relief to which relators may
    show themselves entitled. See Monsanto Co. v. Davis, 
    110 S.W.3d 28
    , 29–30 (Tex. App.—Waco
    2002, order) (granting motion to seal documents during pendency of appeal where the issue on
    appeal was whether the documents were privileged, inadvertently disclosed, and required to be
    snapped back due to privilege);
    Accordingly, we GRANT relators’ motion to seal and ORDER the Clerk of this Court to
    seal the original and all copies of Volume 2 of the mandamus record. These documents shall
    remain under seal until further order of this Court.
    /s/   ADA BROWN
    JUSTICE