in Re: Mark Schwarz, Newcastle Capital Management, L.P.

• Court: Court of Appeals of Texas
• Decided: January 22, 2019
• Docket: 05-19-00046-CV
• Status: Published

Opinion

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