Order entered November 5, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00970-CV
IN RE SUSAN HARRIMAN, Relator
Original Proceeding from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-11994
ORDER
Before Justices Bridges, Brown, and Boatright
Before the Court is relator’s motion to seal Volume 3 of the mandamus record. In this
original proceeding, relator complains of orders denying relator’s request to snap back an e-mail
that relator contends is subject to the attorney-client privilege and complains of the trial court’s
finding that the e-mail at issue is subject to the crime-fraud exception. The e-mail is included
and/or referenced in the documents contained in Volume 3 of the mandamus record. Relator
asks this Court to enter a sealing order in order to protect relator’s claim of privilege.
The trial court has not entered a Rule 76a sealing order in the underlying proceeding for
the records in Volume 3 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 relator’s request.
The central issue in this proceeding is whether an e-mail that is purportedly privileged
and was inadvertently and unintentionally disclosed should remain part of the trial court’s file or
should be removed and returned to relator. If relator prevails, the fact that the e-mail has
effectively remained open to public inspection during the pendency of this original proceeding
would significantly undermine the effectiveness of any relief to which relator may show herself
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 relator’s motion and ORDER the Clerk of this Court to seal
the original and all copies of Volume 3 of the mandamus record. These documents shall remain
under seal until further order of this Court.
/s/ ADA BROWN
JUSTICE