General Tire, Inc. v. Kepple

• Decision Date: 05 June 1998
• Docket Number: No. 96-0425,96-0425
• Parties: 41 Tex. Sup. Ct. J. 895 GENERAL TIRE, INC., Petitioner, v. Kenneth KEPPLE, a/n/f of Kyle E. Kepple, et al., Respondents.
• Court: Texas Supreme Court

Page 520

970 S.W.2d 520

41 Tex. Sup. Ct. J. 895

GENERAL TIRE, INC., Petitioner, v. Kenneth KEPPLE, a/n/f of Kyle E. Kepple, et al., Respondents.

No. 96-0425.

Supreme Court of Texas.

Argued Jan. 15, 1997.

Decided June 5, 1998.

Douglas T. Gosda, Ann Moore, Lynne Liberato, Alene Ross Levy, Houston, Ann Whitley, Dallas, Jeffrey Casto, Akron, for Petitioner

Bill D. Fountain, Austin, Russell L. Cook, Jr., Lynn Bradshaw Burford, David W. Holman, Houston, Donald D. Colburn, Phoenix, AZ, for Respondents.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, ENOCH, OWEN, BAKER and ABBOTT, Justices, join.

After settling and dismissing Kenneth Kepple's suit against General Tire, Inc., Kepple's attorneys moved on their own behalf to vacate a protective order issued pursuant to Rule 166b(5)(c) of the Texas Rules of Civil Procedure, ¹ which restricted their disclosure of documents General produced during discovery and designated as confidential. The district court granted the motion, holding that disclosure of the documents could not be restricted unless General complied with the procedures for sealing "court records" under Rule 76a. General then moved for protection under Rule 76a, and after an evidentiary hearing, the court denied the motion, holding that General's documents were "court records" within the meaning of Rule 76a(2)(c) and could not be sealed. The court of appeals affirmed the district court's rulings. ² We hold that the district court erred in invoking Rule 76a's procedures before determining whether General's documents were "court records", and that the court abused its discretion in determining that the documents were "court records". Accordingly, we reverse the court of appeals' judgment and reinstate the district court's protective order.

I

Kyle Kepple suffered severe injuries when the Ford Bronco II in which he was riding rolled over. His father Kenneth brought suit on Kyle's behalf against Ford Motor Company and General Tire, Inc., the manufacturer of the Bronco's tires. Kepple claimed that a defect in one of the tires caused the tread to separate, precipitating the rollover.

On General's motion, the district court issued an interim protective order, pursuant to Rule 166b(5)(c), that permitted General to designate information produced during discovery as confidential after making "a bona fide determination that the material is, in fact, a trade secret or other confidential information, the dissemination of which would significantly damage [General's] competitive position." The order required Kepple to notify General if he disagreed with General's designation of any documents. Confidential information could be disclosed only to Kepple's counsel, the witnesses, the court, and the jury in this case, and to any plaintiffs' counsel, witnesses, court, or jury in any other suit against General alleging a tire defect. Confidential information could not be disclosed to any expert witness employed by one of General's competitors. General produced numerous documents under this order, including those containing design specifications, testing data, and "adjustment" reports detailing the frequency of returns under General's warranty program.

Three months after issuing the protective order, the district court stated at a pretrial conference, on its own initiative, that any order limiting dissemination of the documents must comply with Rule 76a, which governs the sealing of court records. The court indicated that the protective order would be vacated and directed General, if it desired protection, to file a motion to seal the documents under Rule 76a. Although not conceding that Rule 76a applied, General filed a "motion for protective order or, in the alternative, temporary sealing order." General asked the court to continue the terms of the interim protective order under either Rule 166b(5)(c) or Rule 76a. (General has never sought, either in the district court or on appeal, to restrict dissemination of the documents beyond the terms of the original protective order.) Before any further action was taken concerning the documents, however, the parties settled the lawsuit. The trial court signed an order dismissing the suit with prejudice, without vacating the interim protective order.

Two months later, Kepple's attorneys and their employees sought relief from the interim protective order, contending that General's documents "affect the public safety under Rule 76a" and therefore "should be made public." Over General's opposition, the court vacated the interim protective order, but two days later issued a temporary sealing order under Rule 76a. General then filed a motion to reinstate the protections of the interim protective order under either Rule 166b(5)(c) or Rule 76a. The court scheduled a hearing on General's motion, giving public notice as required by Rule 76a. ³ Three parties intervened in the Rule 76a proceeding: Public Citizen Center for Auto Safety, Inc., Lawyers for Public Justice, and Jill Neviel, an individual. ⁴

At the Rule 76a hearing, the court first considered evidence on whether the documents were "court records" subject to Rule 76a. After determining that the documents were court records, the court heard evidence about whether they should be sealed under the standard set forth in Rule 76a(1). Based on this evidence and an in camera review of the documents, the court determined that General had not met its burden for sealing the documents and ordered that they "be opened to the general public" with only customer names and addresses redacted.

General appealed. ⁵ Only Kepple filed a brief as appellee. The court of appeals affirmed, holding that the trial court did not abuse its discretion in concluding that the documents were court records that should not be restricted from the public. ⁶ We granted General's application for writ of error. ⁷

II

Rule 166b(5)(c) authorizes a court to order "that for good cause shown results of discovery be sealed or otherwise adequately protected, that its distribution be limited, or that its disclosure be restricted." Rule 76a provides the standard and procedures for sealing court records. General first argues that Rule 76a does not apply to Rule 166b(5)(c) protective orders.

This Court promulgated Rule 76a in 1990 pursuant to legislative directive. ⁸ The rule creates a presumption that all court records are open to the public and allows trial courts to seal court records

only upon a showing of all of the following:

(a) a specific, serious and substantial interest which clearly outweighs:

(1) this presumption of openness;

(2) any probable adverse effect that sealing will have upon the general public health or safety;

(b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted. ⁹

The court must hold an oral hearing, open to the public. ¹⁰ The party seeking a sealing order must post public notice of the hearing at least fourteen days in advance "at the place where notices for meetings of county governmental bodies are required to be posted". ¹¹ The notice must state the time and place of the hearing and must contain a specific description of the nature of the case and the records sought to be sealed. ¹² Any person has a right to intervene and be heard on the sealing question. ¹³

Subject to certain limited exceptions, "court records" include "all documents of any nature filed in connection with any matter before any civil court". ¹⁴ Although the term generally does not include unfiled discovery, it does extend to "discovery, not filed of record, concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government...." ¹⁵ This application to unfiled discovery is one of the rule's most controversial aspects. ¹⁶

Rule 166b(5) authorizes trial courts, among other things, to issue protective orders to protect trade secrets contained in discovery. The rule provides that "the court may make any order in the interest of justice necessary to protect the movant from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights." ¹⁷ General argues that courts may exercise this authority independent of Rule 76a when the protection sought is less than a complete ban on disclosure of the documents. In support of its argument, General points to language in both Rule 166b(5)(c) and Rule 76a that recognizes a distinction between sealing documents and merely limiting their distribution. Rule 166b(5)(c) provides that a trial court may order that "discovery be sealed or otherwise adequately protected " (emphasis added), such as by limiting distribution and restricting disclosure. Also, Rule 76a(1)(b) provides that a trial court, before ordering that court records be sealed, must determine that "no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted." The distinction in both rules between sealing and lesser limits on disclosure shows, General argues, that Rule 76a should not govern protective orders allowing significant disclosure of information, like the order in this case.

While General's argument has logical appeal, it is undercut by the plain provision of Rule 166b(5)(c) that "[a]ny order under this subparagraph 5(c) shall be made in accordance with the provisions of Rule 76a with respect to all court records subject to that rule." ¹⁸ This language leaves no leeway for interpretation. To the extent that discovery, whether filed or unfiled, is a "court record" under Rule 76a, the court must follow the stricter standards of that rule to limit its dissemination. ¹⁹

However, the rules do not specifically set forth the standards governing a trial court's threshold determination of whether particular unfiled discovery is or is not a "court record....