Landfills Toss Legal Trash

Last week, locally owned Texas Disposal Systems and international garbage giant Waste Management Inc. met in state district court to dispute whether documents relevant to TDS's six-year-old defamation suit against WMI should be kept open to the public (as TDS wants) or sealed (as WMI wants). After a three-hour hearing, the two landfill operators agreed that all documents should remain open except one -- a response to an internal environmental audit WMI conducted on its Austin Community Landfill in the 1990s.

TDS decided to leave it up to other intervenors in the case whether they wanted to pursue that WMI document, which might contain critical information addressing environmental, health, and safety concerns at the Northeast Travis Co. facility. On Monday, one group of intervenors -- including WMI neighbors, Clean Water Action, and Texas Campaign for the Environment -- declined to pursue the doc. WMI was "going to make it expensive for us to have that fight," said attorney Diane Presti. "One document isn't going to make that big of a difference." But another intervenor in the case, Williams Ltd. -- which owns property adjoining the WMI facility -- plans to pursue the sealed document after the TDS/WMI case is resolved.

The TDS defamation suit is scheduled for trial Feb. 10. Representing WMI at this week's hearing was Houston attorney Charles Babcock, who successfully defended Oprah Winfrey when cattlemen tried to pin plunging sales on anti-beef comments she made on-camera. Counsel for TDS includes David Donaldson and James Hemphill of the local firm George & Donaldson LLP. "This is a big case," says Hemphill. "A lot of issues are involved" -- particularly those related to the Texas Rules of Civil Procedure's Rule 76(a), a relatively new provision that presumes civil court records are public documents that can only be sealed upon a heightened showing of necessity. The rule adopted a particular procedure for sealing documents; in many states, the process is still done ad hoc.

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