By: Vasut H.B. No. 5299
A BILL TO BE ENTITLED
AN ACT
relating to the sealing of certain documents alleged to contain
trade secrets in cases under the Texas Uniform Trade Secrets Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 134A.006, Civil Practice and Remedies
Code, is amended by amending Subsection (a) and adding Subsections
(a-1), (a-2), (a-3), (a-4), (a-5), (a-6), (a-7), (a-8), and (a-9)
to read as follows:
Sec. 134A.006. PRESERVATION OF SECRECY. (a) In an action
under this chapter, a court shall preserve the secrecy of an alleged
trade secret by reasonable means. There is a presumption in favor
of granting protective orders to preserve the secrecy of trade
secrets. Protective orders may include provisions limiting access
to confidential information to only the attorneys and their
experts, holding in camera hearings, sealing the records of the
action pursuant to this section, and ordering any person involved
in the litigation not to disclose an alleged trade secret without
prior court approval.
(a-1) This section controls over any rule adopted by the
supreme court pursuant to Section 22.010, Government Code.
(a-2) In an action under this chapter, any party seeking to
file a document the party knows another party, or third party,
alleges contains the other party's, or a third party's, trade
secrets shall file the document under seal pursuant to the
procedure set forth in Subsection (a-2)(2).
(a-3) In an action under this chapter, a party seeking to
seal a document alleged to contain a trade secret shall comply with
this subsection.
(1) A party seeking to seal a document containing its
own alleged trade secret shall:
(A) file with the trial court and the supreme
court a notice of sealing and an affidavit generally describing the
type of information contained in the document, providing contact
information for subsequent notice of any motion to unseal the
document, and setting forth the factual basis for the party's
contention that the information constitutes a trade secret;
(B) serve a copy of the notice, affidavit, and
document to be sealed on all other parties to the case; and,
(C) deliver a copy of the document to be sealed to
the trial court in a sealed envelope labeled to identify the notice
of sealing to which the document corresponds.
(2) A party filing a document it knows another party,
or third party, alleges to contain its trade secrets shall:
(A) file with the trial court and the supreme
court a notice of sealing and a statement generally describing the
type of information contained in the document and identifying the
person or entity who contends the document contains its trade
secret;
(B) serve a copy of the notice, affidavit, and
document to be sealed on all other parties to the case, together
with any third party who contends the document contains its trade
secrets, as applicable; and,
(C) deliver a copy of the document to be sealed to
the trial court in a sealed envelope labeled to identify the notice
of sealing to which the document corresponds.
(3) Within fourteen (14) days of receiving notice
under Subsection (a-3)(2), the party or third party who contends a
document contains its trade secret must file with the trial court
and supreme court in the same numbered-cause an affidavit generally
describing the type of information contained in the document,
providing contact information for subsequent notice of any motion
to unseal the document, and setting forth the factual basis for the
party's or third party's contention that the information
constitutes a trade secret. If no such affidavit is timely filed,
the document shall be deemed filed publicly until such time as an
affidavit is filed.
(a-4) A document shall be deemed temporarily filed under
seal for fourteen (14) days once the trial court receives the
notice, statement, and sealed document pursuant to Subsection
(a-3)(2).
(a-5) A document shall be deemed permanently filed under
seal once the trial court receives the notice, affidavit, and
sealed document pursuant to either:
(1) Subsection (a-3)(1); or
(2) Subsections (a-3)(2) and (a-3)(3).
(a-6) Any person may intervene as a matter of right at any
time before or after judgment in a case under this chapter to seal
or unseal court records. If a person contends its trade secrets
were filed of public record, it may seal such records by complying
with Subsection (a-3)(1) as if the person was a party to the action.
(a-7) The trial court retains continuing jurisdiction to
seal or unseal a document filed in a case under this chapter.
(a-8) Any person may move to unseal any document filed under
seal pursuant to this section. Such motion, and notice of hearing,
shall be served on the parties to the case in which the document was
filed, and the party or third-party who submitted any affidavit
under Subsection (a-3)(3) or Subsection (a-6), by certified mail,
return receipt requested at least fourteen (14) days prior to any
hearing on the motion in the trial court. The trial court shall
grant the motion and unseal the document in whole, or in part, if
the party, third party, or person contending the document contains
trade secrets fails to demonstrate by a preponderance of the
evidence that the document, or a part thereof, contains a trade
secret. If the trial court determines that only a part of a
document should be unsealed, the trial court shall redact all
information which contains a trade secret before providing the
document to the movant.
(a-9) An order granting or denying a motion to unseal a
record under Subsection (a-6) shall be deemed to be severed from the
case and a final judgment which may be appealed by any party or
intervenor who participated in the hearing preceding issuance of
such order.
SECTION 2. This Act applies to the sealing of any court
record after the effective date of this Act. Any document filed
under seal prior to the date of this Act shall be governed by the law
in effect at the time of sealing.
SECTION 3. This Act takes effect September 1, 2023.