Affirmed and Opinionfiled July 13, 1

In The 

### (Hourt ofAppeals JTiftlf Itstrtrt of ®exas at lallas
No. 05-93-01925-CV
THE UPJOHN COMPANY, Appellant
V. WILLIAM R. FREEMAN, MARTHA FREEMAN, Individually and as next friend and guardian ofSEAN PERRY FREEMAN, a Minor Child, SUZANNE E. FREEMAN, as

next friend and guardian ofLEAH SUZANNE FREEMAN and WILLIAM LANCE FREEMAN, Minor Children, LORI YVONNE FREEMAN, PUBLIC CITIZEN, and THE DALLAS MORNING NEWS, Appellees
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. 89-09648-A
OPINION Before Chief Justice Thomas1, and Justices Maloney and James2 Opinion By Justice James This is an appeal from the trial court's order denying in part and granting in part Upjohn's motion to seal certain documents pursuant to rule 76a of the Texas Rules of Civil

The Honorable Linda Thomas succeeded Chief Justice Charles McGarry, a member of the original panel at the time this
cause was submitted for decision. Chief Justice Thomas has reviewed the record and the briefs in this case. The Honorable Tom James succeeded Justice Joe Burnett, a member of the original panel at the time this cause was submitted for decision. Justice James has reviewed the record and the briefs in this case.Procedure.3 In two points of error, Upjohn complains the trial court abused its discretion in partially denying the sealing order. Appellees, the Freemans, complain in two crosspoints of error that the trial court erred in partially granting the sealing order. The Dallas Morning News and Public Citizen (collectively intervenors) do not appeal the trial court's decision to seal certain documents; they contend the trial court correctly refused to seal the remaining documents. We affirm the trial court's sealing order.
FACTUAL AND PROCEDURAL HISTORY William R. Freeman and his family (collectively the Freemans) sued Upjohn for negligence andproducts liability forinjuries resulting from his use ofHalcion, a commonly prescribed sleeping pill. See Upjohn Co. v. Freeman, 885 S.W.2d 538 (Tex. App.-Dallas 1994, writ denied) (hereinafter the underlying litigation). The Freemans requested 

### discovery ofUpjohn's documents about Halcion. Upjohn asked the court to limit the disclosure of the documents under rule 76a. Upjohn posted the public notices required by 

### rule 76a(3). The Dallas Morning News, Inc. and Public Citizen intervened. The Freemans and intervenors contested Upjohn's attempt to have the documents sealed. 

### OnMarch 30, 1992, the trial court held a hearing as required by rule 76a(4). The 

### trial court denied Upjohn's motion to seal the documents. Upjohn appealed. This Court reversed the trial court's order and remanded for a new rule 76a hearing, holding that the 

### trial court applied the incorrect burden ofproofto Upjohn's motion. See Upjohn Co. v.

3Allfuture references torules are tothe Texas Rules ofCivil Procedure unless otherwise stated.

## Freeman, 847 S.W.2d 589, 592 (Tex. App.-Dallas 1992, no writ) (hereinafter Upjohn I). OnJuly 9, 1993, the trial courtconducted asecondrule 76ahearing. The trial court 

## tookjudicial notice ofall the papers, pleadings, and testimony in the underlying litigation 

## as well as the previous rule 76a hearing. The trial courtgrantedinpart and deniedin part 

## Upjohn's request for asealing order. The trial court sealed the portion ofthe discovery documents containing Upjohn's protocols intesting and analyzing Halcion, based upon the court's finding that the protocols contained trade secrets. The trial court did not seal the 

### remaining documents. Upjohn appealed pursuant to rule 76a(8).
APPLICABLE LAW

Standard ofReview We review the trial court's ruling on the rule 76a motion under the abuse of discretion standard. Upjohn I, 847 S.W.2d at 590. The test for an abuse ofdiscretion is not 

### whether the facts present a proper case for the trial court's action. Rather, the test is 

### whether the trial court acted without reference to any guiding rules or principles, oracted inanarbitrary orunreasonable manner. Downerv.Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert, denied, A16 U.S. 1159 (1986); Upjohn I, 847 S.W.2d at 590. 

### Rule 76a provides the guiding rules and principles for sealing court records. Upjohn I, 847 

### S.W.2d at 590; Dunshie v. General Motors Corp., 822 S.W.2d 345, 347 (Tex. App.-Beaumont 1992, no writ). An abuse ofdiscretion does notexist when the trial court bases itsdecision onconflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Zmotony v. PhUlips, 529 S.W.2d 760,762 (Tex. 1975); Recon Exploration,Inc. v. Hodges, 798

### S.W.2d 848, 851 (Tex. App.-Dallas 1990, no writ). 

## When we review matters committed to the trial court's discretion, we may not substituteourjudgmentforthatofthetrial court. SeeFlaresv. Fourth Courtof Appeals, 111 S.W.2d38, 41-42 (Tex. 1989) (orig. proceeding); Upjohn I, 847 S.W.2d at 590. Even ifwe would decide the issue differently, we may not disturb the trial court's decision unless it is 

## arbitraryandunreasonable. Johnson v.Fourth Courtof Appeals, 700S.W.2d916, 918 (Tex. 1985) (orig. proceeding); Upjohn I, 847 S.W.2d at 590. In anonjury trial or hearing, the trialjudgeis the solejudgeofthewitnesses' credibilityandtheweightgiventheirtestimony. Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 224 (Tex. App.-Dallas 1989, writ denied).
Rule 76a 

### Rule 76a(l) provides that "courtrecords... arepresumedto be open to the general public." Tex. R. Crv. P. 76a(l). "Court records" include "discovery, not filed ofrecord, concerning matters that have a probable adverse effect upon the general public health or safety
. . . except discovery in cases originally initiated to preserve bona fide trade secrets or otherintangible property rights." Tex. R. Crv. P. 76a(2)(c). 

### The trial court may not presume a document orparticular group ofdocuments are court records if a party in a rule 76a motion contests whether the discovery in question constitutes court records as defined in the rule. Eli Lilly &Co. v. Biffle, 868 S.W.2d 806, 808 (Tex. App.-Dallas 1993, no writ); Upjohn I, 847 S.W.2d at 591. When the issue is 

### raised, the trial courtmustdetermine whether aspecific document orcategoryofdocuments

### are court records. Ifthe character ofthe discovery documents is disputed, it is the burden 

## ofthe partyclaimingthe documents are opento the public to provebyapreponderanceof 

## the evidence that the documents are court records as defined by rule 76a. Biffle, 868 S.W.2d at 808. 

### If the trial court finds that the documents are court records, the documents are 

### presumed tobeopento the generalpublic. Thepartymovingforthe sealingorderthenhas 

## the burden to rebut the presumption in orderto seal the records. Tex. R. Crv. P. 76a(l); Biffle, 868 S.W.2d at 809. A party may rebut the presumption ofopenness by proving the following: 

### (a) a specific, serious and substantial interest which clearly outweighs: (1) this presumption ofopenness; 

### (2) any probable adverse effect that sealing will have upon the general public health or safety; (b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted. 

### Tex. R. Crv. P. 76a(l)(a)(b). The party seeking to seal the court records must prove the elements of rule 76a by a preponderance of the evidence. Upjohn /, 847 S.W.2d at 591. A properly proven trade secret interest may constitute a specific, serious, and 

### substantial interest, which wouldjustify restricting access tothe documents in question. See EH Lilly &Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). Atrade secret may consist of any formula, pattern, device, or compilation of information which is used in one's

## business and whichgives one an opportunityto obtain an advantage overcompetitorswho do notknoworuseit. HydeCorp. v.Huffines, 314S.W.2d763, 776 (Tex.), cert,denied, 358 

## U.S. 898 (1958); Rugen v. Interactive Business Sys., Inc., 864 S.W.2d 548, 552 (Tex. App.-Dallas 1993, no writ). 

### The court may conduct an in camera inspection of the records. Tex. R. Crv. P. 

## 76a(4). The courtmaybase its decision on the pleadings, any stipulations ofthe parties, affidavits andattachments filedbytheparties, discoveryrequests, andoraltestimony. Tex. R. Crv. P. 76a(4); see Tex. R. Civ. P. 120a. 

### Amotion relating to sealing or unsealing court records shall be decided by written 

## order, open to the public, which shall state the specific reasons for finding and concluding whether the showing required by rule 76a(l) has been made and the specific portions of court records which are tobe sealed. See Tex. R. Crv. P. 76a(6).
DISCUSSION 

### The discovery in question consists ofalarge number ofhighly technical documents notfiled in the trial court's record.4 Upjohn offered to tender thedocuments for thetrial 

### court's inspection. Itappears from the record that the trial court did not inspect all ofthe documents. Likewise, not all ofthe documents have been presented to this Court for 

### review. However, an in camera inspection ofthe documents is not required. Rule 76a provides that the trial court may inspect records in camera ormay base its decision on the

A small portion of thedocuments was entered into evidence during theunderlying litigation.

## pleadings, any stipulations ofthe parties, affidavits and attachments filed by the parties, discovery requests, and oral testimony. See Tex. R. Civ. P. 76a(4); see alsoDunshie, 822 S.W.2d at 347. We have all the records and evidence that the trial court reviewed. Therefore, we review the trial court's findings based upon the entire record which includes 

## the affidavits of experts and the papers, pleadings, and testimony from the underlying litigation.
Court Records 

### In point oferror one, Upjohn contends that due to an erroneous interpretation of the law, the trial court improperly concluded that the unfiled discovery documents were courtrecords. Specifically, Upjohn makes two arguments: (1) the trial courtfailed to apply the appropriate legal standardindeterminingwhetherthe unfileddiscoverydocuments were court records; and (2) the Freemans and intervenors offered no evidence or insufficient evidence that the documents were court records. Legal Standard 

### Upjohn contends that itwas the Freemans' and intervenors' burden to prove that specific documents have aprobable adverse effect upon the general public health or safety, and the trial courtrequired Freeman andintervenors tomake only a "general showing that the lawsuit might affect public health or safety." After the July 9, 1993 rule 76a hearing, the trial court issued its order stating: The Court finds by a preponderance of the evidence that the documents in question (the "Discovery Documents")are "court records" as defined in Rule 76a(2)(c) of the Texas Rules of

### Civil Procedure. Specifically, the Discovery Documents are discovery, not filed of record, that concern matters that have a probable adverse effect upon the general public health and 

### safety. Additionally, the Courtfinds that some of the Discovery Documents are "court records" as defined in Rule 76a(2)(c) in that they were admitted inevidence during thetrial ofthis case. 

### The trial court may notpresume documents are courtrecords ifaparty in arule 76a motion raises the issue ofwhether the discovery in question constitutes court records as defined in the rule. When the issue is raised, the trial court must determine whether a 

### specific document orcategory ofdocuments constitutes court records. Biffle, 868 S.W.2d 

### at808. The trial court, after considering evidence, entered awritten order finding that the discovery documents in question were court records as defined in rule 76a. The court 

### tracked the language from rule 76a as the guiding rule in finding that the discovery documents were court records. The order expressly limits itself to the documents in question. The record refutes Upjohn's assertion that the trial court required the Freemans and intervenors to make only a "general showing that the lawsuit might affect public health or safety" or that the trial court adopted an incorrect standard to determine whether the
documents were court records. Factual Findings Upjohn's Contentions Upjohn further contends the Freemans and intervenors offered no evidence or insufficient evidence that the documents were court records. Upjohn contends the only evidence that the documents were court records was an affidavit, filed by intervenors, which

### contained numerous, general, unsubstantiated conclusions. Upjohn argues the Freemans and intervenors "tendered none ofthe documents for anin camera review and offered no 

### evidence that any specific documents have aprobable adverse effect on public health or safety."3 Upjohn further argues that any finding by the trial court that the documents have
a probable adverse effect on public health or safety is arbitrary and unreasonable and 

### therefore an abuse ofdiscretion. Upjohn also contends thatby approving the drug for use in the United States, the FDA has already determined that the public health and safety is best served by making Halcion available for use in this country. Accordingly, Upjohn concludes, these documents could not have a probable adverse effect on public health and safety. Application Theparties presented the trial court with a significant amount ofevidence regarding the nature and subject matter of the documents. The trial court considered several affidavits filed by the parties. The parties do not citethis Court to any objections lodged or sustained with respect to the affidavits, nor does our review of the record find any objections lodged

or sustained. Michael Mosher, one of the attorneys ofrecord for the Freemans, reviewed all of the documents in question. He testified that the documents could be placed into four categories: (1) clinical study documents; (2) internal memoranda; (3) adverse reaction

5The Freemans had possession of thedocuments under aconfidentiality agreement.

### reports and analyses ofthe adverse reaction reports; and (4) miscellaneous otherdocuments 

### including correspondence with third parties regarding Halcion and depositions with exhibits from other cases around the country regarding Upjohn and Halcion. He further testified 

### that the overwhelming majority of the documents are made up of portions of the 

### Investigational New Drug Application (IND) and the New Drug Application (NDA) which
arerequired for FDA approval. Based onhis review ofthe documents, Moshertestified the documents concern the safety and effectiveness ofHalcion. 

### Kenneth Starz, M.D., associate clinical research director for Upjohn, is the medical 

### momtor for Halcion. He assisted in the preparation and analysis ofthe clinical study documents contained in Upjohn's NDA for Halcion. He testified that the clinical study documents contain safety and effectiveness data for Halcion and that the documents were submitted to the FDA for consideration in the approval ofHalcion. Sidney Wolfe, M.D., isthedirector ofPublic Citizen Health Research Group. Inhis affidavit opposing the sealing of the documents, he testified thatHalcion is the subject of
a petition, filed by Public Citizen with the FDA, requesting the FDA to require stricter labeling of Halcion. The petition is intended to protect everyone who uses or may use Halcion. He testified that although he had not reviewed the documents, the records likely to be sealed in this case bear directly on the issues raised in the petition to the FDA. Thomas Lee Kurt, M.D., M.P.H., is the actingmedical director for the North Texas Poison Control Center. He formerly served as the regional medical officer for the FDA. He testified that the IND and NDA that were filed with the FDA to obtain investigational

-10-

## permission and then marketing approval would ordinarily consist of (1) clinical study documents, (2) correspondence between the FDA and Upjohn regarding warning labels, instructions, and otherlabelling matters, (3) adverse drug reaction reports, and (4) various reports published in medical literature. The clinical study documents would consist of, among otherthings, (a) case report forms, (b) technical reports, (c) statistical reports, and (d) executive summaries. In Kurt's opinion, the documents described to him concern 

### matters that have aprobable adverse effect upon the general health orsafety. Indeed, he believes "the contents of these documents contain information that concern the hazard to public health from the use of this drug." As notedpreviously, we review thetrial court'sruling on themotion undertheabuse of discretion standard. Upjohn, 847 S.W.2d at 590. The record contains conflicting evidence. The trial court considered the evidence and determined that the documents concern matters that have a probable adverse effect upon the general public health or safety. A trial court does not abuse its discretion when it bases its decision on conflicting evidence. We overrule point of error one. Specific, Serious, and Substantial Interest Legal Interpretation Upjohn's Contentions In point oferror two, Upjohn contends the trial court abused its discretion in holding that Upjohn failed to establish a protectable interest sufficient to justify a sealing order under rule 76a. Upjohn argues the trial court ruled that the only substantial interest that

-11-could justify sealing is a trade secret, and this interpretation ignores other substantial interests Texas courts routinely protect. Upjohn argues rule 76a does not define the types of specific, serious, and substantial interests that will justify a sealing order, and the court must protect substantive rights recognized under existing law. Upjohn contends it established several substantial interests which would justify sealing under rule 76a, but the trial court failed to acknowledge that other common-law, statutory, and constitutionally protected rights are interests that may justify sealing under rule 76a. To support its argument, Upjohn cites this Court to the July 9, 1993 sealing order and to the statement of facts from the rule 76a hearing. Application The sealing order contains findings of fact as required by rule 76a. The trial court found that the portion of the discovery documents containing Upjohn's protocols in testing and analyzing Halcion contained trade secrets and thatUpjohn demonstrated that its trade secret interest justified sealing under rule 76a. The sealing order also contained the following findings: The Court further finds that, to the extent the Discovery Documents contain documents that are not Protocols (the "Remaining Documents"), Upjohn has failed to prove, by a preponderance of the evidence, that its privacy rights, ifany, or right to a fair trial are specific, serious and substantial interests under Rule 76a(l)(a). The Court further finds that the Remaining Documents do not contain trade secrets. The Court further finds that Upjohn has failed to show by a preponderance of the evidence any other specific, serious, and substantial interests under Rule 76a(l)(a). Alternatively, the Court finds that, with respect to the Remaining Documents,

•12-Upjohn has failed to demonstrate, by a preponderance of the evidence: (a) a specific, serious and substantial interest which clearly outweighs (1) the Rule 76a presumption ofopenness, 

### and (2) any probable adverse effect that sealing will have upon the general public health or safety; and (b) no less restrictive means than sealing the Remaining Documents will adequately and effectivelyprotect the specific interest asserted
.... (Emphasis added.) At the rule 76a hearing, the trial court stated: The court finds that the protocols themselves are trade secrets and for that reason would be exempt from discovery and disclosure. The court finds that all of the other documents are court records within the meaning of rule 76a, and that the movant has failed to establish a basis under rule 76a for the court to seal the records and thus overcome the presumption of openness. The court finds that the presumption has not been rebutted. . . . [T]he motion to seal is denied. The record does not support Upjohn's assertion that the trial court considered the only substantial interest that couldjustify sealing is a trade secret. To the contrary, the record indicates that the trial court considered all of the interests that Upjohn asserted. Sealing was denied based upon Upjohn's failure to prove the interests it asserted. The order specifically finds that Upjohn failed to prove by a preponderance ofthe evidence that its privacy rights, right to a fair trial, trade secret interest (with respect to the "Remaining Documents"), or any other interests were specific, serious, and substantial interests under rule 76a(l)(a).

-13-Factual Findings Upjohn's Contentions Upjohn contends that any factual findings on this issue were arbitrary and unreasonable. Upjohn claims it established several substantial interests which would justify sealing under rule 76a, including: (1) the documents contain confidential business informationwhich isprotected under existinglaw; (2) public dissemination of the documents would constitute an unconstitutional invasion of its right to privacy; (3) public dissemination of the documents would prejudice Upjohn's due process right to a fair trial; and (4) the documents contain trade secrets. Further, Upjohn contends that its interests clearly outweigh the presumption of openness and that Upjohn established that its interests cannot be protected by less restrictive means. Upjohn contends the affidavits of Drs. Robert Straw, Judith Jones, and Kenneth Starz established: (1) the documents contain confidential business information; (2) public dissemination ofthe documents would constitute an unconstitutional invasion ofits right to 

### privacy, anunconstitutional taking ofproperty, and prejudice Upjohn's due process right to a fair trial, and (3) the documents contain trade secrets. 

### Upjohn points to the FDAapproval of Halcionto establishthatcontinuedprotection 

### of Upjohn's right of confidentiality would not have a probable adverse effect upon the 

### general public health and safety. Upjohn relies onJacobs v. Dista Prods. Co., 693 F. Supp. 1029, 1035 (D. Wyo. 1988) (by allowing prescription drug to be marketed and sold, FDA has determined thatlegitimate publicinterestinits availabilityoutweighs any adversities that

-14-might arise in course of its usage).
The Evidence in the Record 

### Straw is the director ofproject management for Upjohn. He testified that Upjohn would suffer competitive and commercial harm if the case report forms, technical and statistical reports, and executive summaries were released to the general public. He explained in detail how competitors could use the information contained in the documents to develop and market drugs. Starz is an associate clinical research director for Upjohn. Using almost identical language as Straw, Starz testified about the competitive and commercial harm from release of the documents to the public. Jones was the director for the division ofdrug and biological experience for the FDA. She testified that NDA case report forms, statistical reports, technical reports, and executive summaries are protected from public dissemination to maintain the proprietary and confidential nature of the material in order to uphold the protection of the patent. She stated that such data, when separated from the application as a whole, might be misleading

or misinterpreted. Dr. Elmer Gardner, the former director of the division of neuropharmacological products for the FDA, testified that the FDA thoroughly reviewed and evaluated the documents in question and properly concluded that Halcion is safe and effective. He concluded the continued protection of the documents would not have a probable adverse effect upon the generalpublic health and safety.

•15-On the other hand, Mosher, counsel of record for the Freemans, testified in his affidavit that the results of some of the clinical trials have been published in medical literature. Once the patent expires onHalcion, some documents which hadpreviouslybeen protected would no longer be protected.6 Adverse reaction reports are available from the FDA through a Freedom of Information Act request. Some of the documents include letters written by third parties to Upjohn complaining about Halcion or notifying Upjohn about experiences with Halcion. He also testified that Halcion has had significantly more adverse reaction reports than other drugs in its class and that doses of Halcion greater than 0.25 mg have been banned in other countries. Kurt, medical toxicologist and acting medical director for the North Texas Poison Control Center, testified that the serious side effects caused by Halcion make it unsafe for general use. In his opinion, Halcion poses an unreasonable risk of dangerous, even fatal, side effects and should be banned in the United States as it has been in the United Kingdom and other countries. In his opinion, no interest that could be asserted by Upjohn could outweigh the general public's need to become fully informed about Halcion before it is taken, as well as the medical community's decision to continue to prescribe it. Application The trialcourt determined that Upjohn failed to establish a basis (other than trade 

### secrets with respect to the "protocols") under rule 76a for the court to seal the records.

6Halcion went offpatent in October 1993.

•16-Alternatively, the trial court found that Upjohn failed to demonstrate by a preponderance of the evidence an interest which, in balance against the public's interest, justified sealing all of the documents. The trial court determined that based on the evidence presented to it, the presumption of openness had not been rebutted. Having reviewed the entire record, including part of the subject documents, we conclude the record supports the trial court's findings. The record contains evidence of compelling reasons supporting the presumption of openness. The trial court based its decision on conflicting evidence. Consequently, there can be no abuse ofdiscretion. Davis, 571 S.W.2d at 862; Recon, 798 S.W.2d at 851. We overrule point of error two. The "Protocol Documents" 

### Incross-pointoferrorone, the Freemans contendthetrial court erred infinding that 

### any Upjohn documents were confidential orcontained trade secrets. The Freemans argue 

### that: (1) the clinical trial documents were not confidential because they are available tothe 

### public from the FDA and (2) Upjohn is collaterally estopped from arguing that any ofits documents were trade secrets or otherwise confidential because Upjohn was a party in 

### Grundberg v. Upjohn, 137 F.R.D. 372 (D. Utah 1991) (hereinafter Grundberg I).
FDA Release ofInformation 

### The Freemans rely upon aletter, dated March 10, 1993, from the FDA to Upjohn 

### to support their claim that the documents in question have been released to the public. 

## Upjohn responds with an affidavit from one ofits attorneys who routinely monitors the release ofinformation from the FDA. Neither document was before the trial court atthe

-17-

### hearing on the sealing order, nor are the documents properly before this Court. The Freemans do not cite this Court to anything in the record to support their contention. An appellant has the burden to present a sufficient record to show reversible error. SeeTex. 

### R. App. P. 50(d). We require an appellant to identify the places in the record that support its complaint. See Keene Corp. v. Gardner, 837 S.W.2d 224, 229 (Tex. App.-Dallas 1992, writ denied). We are not required to search the record to determine if appellant's contentions are valid. See Keene, 837 S.W.2d at 229. 

### Nevertheless, we searched the entire record for some evidence ofwholesale public release ofthe documents by the FDA. We were unable to find evidence supporting the Freemans' contentions. The record does, however, contain evidence supporting the trial court's finding that the portion of the discovery documents that contain Upjohn's protocols in testing and analyzing Halcion contain trade secrets. A trade secret may consist of any formula, pattern, device, or compilation of information which is used in one's business and which gives one an opportunity to obtain an advantage over competitors who do not know

or use it. Hyde, 314 S.W.2d at 776; Rugen, 864 S.W.2d at 552. Drs. Straw, Jones, and Starz all testified at length regarding the competitive and commercial harm to Upjohn if the
information contained in the documents were released. Collateral Estoppel The trial court has broad discretion in determining whether or not to apply the doctrine ofcollateral estoppel. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 328 (1979); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986). Collateral estoppel precludes

•18-relitigation of any ultimate issue of fact actually litigated and essential to thejudgment in a prior suit. Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926, 927 (Tex. 1988); Bonniwell v. BeechAircraft Corp., 663 S.W.2d 816, 820-21 (Tex. 1984).7 A party seeking to invoke the doctrine must establish: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Bonniwell, 663 S.W.2d at 820-21. We give the prior adjudication of an issue estoppel effect only if it was adequately deliberated and firm. Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 115 (Tex. App.-Dallas 1991, no writ). The Freemans contend that Upjohn was a party in Grundberg I, where the precise issues before the trial court were litigated and that "Upjohn litigated; Upjohn lost." 

### Grundberg I considered whether discovery documents produced in the underlying products 

### liability case involving Halcion should continue to be regarded as confidential orotherwise restricted. Following atwo-day evidentiaryhearing, the districtcourtenteredfindings of fact and conclusions of law. The district court stated, "Upjohn cannot claim trade secrets or 

### confidentiality as to information set forth in the case report forms,.. . [and the] technical and statistical reports not authoredby Upjohn cannot properly be classified as confidential 

### to Upjohn." However, the court recognized problems of possible prejudice to the jury

7

The Fieem?nsassertcollateralestoppelagainst Upjohn in a stateproceedingbasedona priorholdingina federal court. We neednotdecide whethertousefederalorstatecollateralestoppellaw, becausethere islittledifferencebetweenthefederalcourts' formulation ofthe doctrineandourown. SeeSyscoFoodServs., Inc. v. Trapnell, 890S.W.2d796,801 n. 7(Tex. 1994); Eagle Properties, Ltd.v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990).

-19-because ofpretrial publicity if documents and materials were released before trial. It also noted that certain documents might contain trade secrets and confidential information requiring rulings on admissibility and public access which could best be determined at trial. Grundberg I, 137 F.R.D. at 391, 394-95. The protective order remained in force until those documents were admitted into evidence at trial or otherwise used at trial. Grundberg I, 137 F.R.D. at 396. Based upon a voluntary and unconditional stipulation for dismissal by the parties, the district court dismissed the case. The preexisting protective order was left in place. Freeman and Public Citizen filed motions to intervene to gain access to the documents, and the parties asked to modify the protective order. The district court denied the motions to intervene and modified the protective order. Grundberg v. Upjohn, 140 F.R.D. 459, 461-63 (D. Utah 1991) (hereinafter Grundberg II).' The districtcourt's prioradjudicationofwhetherthedocuments inquestion contained trade secrets and confidentialinformation was not final. The Grundberg I court specifically 

### noted thatits preliminary determinations might change attrial. Grundberg/, 137 F.R.D. at 391. In Grundberg I and Grundberg II there was no final adversarial adjudication ofthe 

### claims ofprivilege and the propriety of sealing documents because ofthe settlement and 

### voluntary dismissal ofthe case. The district court denied Public Citizen's and Freeman's right to intervene. Therefore, they could not fully litigate the remaining issues.
8

We note thatthedistrictcourtstated "thatsubstantialharmcouldoccurbythe wholesalerendition of immediatepublicaccess tothe documents inthis case, and courts which require production may well determine toimpose the same restrictions as were imposedbythiscourt, pendingofcoursepublichearings. Thiscourt, ofcourse, doesnotdirectanyothercourtorbodyastosuch matters, sincethose determinationsmustbe madeunderthe discovery rulesandotherconsiderationsapplicable in thejurisdiction in question." Grundberg II, 140 F.R.D. at473.

-20-The claims of privilege in Grundberg I and Grundberg II were not adequately deliberated and firm. We give the prior adjudication of an issue preclusive effect only if it
was adequately deliberated and firm. See Cockrell, 817 S.W.2d at 115; see also Morgan v. Deere Credit, Inc., 889 S.W.2d 360, 367 (Tex. App.-Houston [14th Dist.] 1994, no writ). The trial court did not abuse its discretion in refusing to apply the doctrine of collateral estoppel to preclude Upjohn from litigatingwhether the documents contained trade secrets
or confidential information. We overrule cross-point of error one.
Mootness In cross-point of error two, the Freemans contend that Upjohn's appeal is moot because Halcion is now off patent. The mootness doctrine limits courts to deciding cases inwhich an actual controversy exists. FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994). The controversy in this case involves whether the documents in question are court 

### records and whether Upjohn met the requisite burden under rule 76a tojustify sealing. If 

### Upjohn ceased to have an adequate interest in the documents once the patent on Halcion expired, any controversy between the parties would end. However, the record does not 

### support the Freemans' contention that any commercialinterestUpjohn might have claimed 

### expiredin October 1993 when Halcion went offpatent. The record is not clear aboutwhat documents the FDA releases once a drug goes off patent. Certainly itis not clear ifthe 

### documents containing trade secrets would be released. An appellant has the burden to 

### presentasufficientrecordto showreversible error. SeeTex. R. App. P. 50(d). We require 

### an appellantto identify the places in the record that supportits complaint. SeeKeene, 837

•21-

### S.W.2d at229. Because the Freemans fail to support their contention, we overrule crosspoint of error two. We affirm the trial court'sjudgment.

Publish Tex. R. App. P. 90 931925F.P05

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### (Court ofAppeals 

### STxftff Itstrtr/t ofOkxas at lailas JUDGMENT THE UPJOHN COMPANY, Appellant No. 05-93-01925-CV V. WILLIAM R. FREEMAN, MARTHA FREEMAN, Individually and as next friend and guardian of SEAN PERRY FREEMAN, a Minor Child, SUZANNE E. FREEMAN, as next friend and guardian of LEAH SUZANNE FREEMAN and WILLIAM LANCE FREEMAN, Minor Children, and LORI YVONNE FREEMAN, PUBLIC CITIZEN, THE DALLAS MORNING NEWS, Appellees Appeal from the 14th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 89-09648-A). Opinion delivered byJustice James, Chief Justice Thomas and Justice Maloney participating.



### In accordance with this Court's opinion ofthis date, thejudgment ofthe trial court is AFFIRMED. It is ORDERED that appellees William R. Freeman, Martha Freeman, 

### Individually and as next friend and guardian of Sean Perry Freeman, a Minor Child, Suzanne E. Freeman, as next friend and guardian ofLeah Suzanne Freeman and William 

### Lance Freeman, Minor Children, Lori Yvonne Freeman, Public Citizen, and The Dallas 

## Morning News recovertheircosts ofthis appealfrom appellantThe Upjohn Company and from the cash deposit in lieu ofcostbond. After all costs have been paid, the clerk ofthe district court is directed to release the balance, ifany, ofthe cash deposit to Baker &Botts, as counsel for appellant TheUpjohn Company. Judgment entered July 13, 1995.