As most commercial litigators know, Texas law does not make it easy to seal court records with trade secrets. A bill to change that was filed last month.

House Bill 5299 proposes amendments to the Texas Uniform Trade Secret Act (TUTSA). Under the proposed legislation, a party seeking to seal a document containing an alleged trade secret could file an affidavit generally describing the trade secret, and the document will be temporarily and then permanently filed under seal. (The procedure varies depending on whether the document contains the party’s own trade secret or another party’s trade secret.) Then, any party “before or after judgment” may move to unseal the record, and the bill sets out a procedure for doing so. According to the bill, any order granting or denying a motion to unseal would be deemed severed and a final judgment, so that it may be immediately appealed.

A companion bill mandates that the Texas Supreme Court establish rules allowing documents alleged to contain trade secrets be filed under seal.

Such a process would override Texas Rule of Civil Procedure 76a, which creates a presumption that all court records are open to the public and requires that the party wanting to seal such records prove that it has a “substantial interest that outweighs the presumption of openness, that the benefit of sealing the record will outweigh any adverse effects on public health or safety, and that there are no less restrictive means that will protect the party’s specific interests.”