                                                                      ACCEPTED
                                                                   01-14-00860-cv
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                             5/15/2015 2:39:28 PM
                                                            CHRISTOPHER PRINE
                                                                           CLERK

             NO. 01-14-00860-CV

                                                 FILED IN
         IN THE COURT OF APPEALS          1st COURT OF APPEALS
      FOR THE FIRST DISTRICT OF TEXAS         HOUSTON, TEXAS
             HOUSTON, TEXAS               5/15/2015 2:39:28 PM
                                          CHRISTOPHER A. PRINE
                                                  Clerk

             JOSEPH W. PEINE,

                            Appellant,
                     v.

        ELITE AIRFREIGHT, INC. and
    ADVANCED LOGISTICS SERVICES, INC.,

                            Appellees.

AGREED MOTION TO SEAL BRIEF OF APPELLANT


                           Yvonne Y. Ho
                           State Bar No. 24055673
                           yvonne.ho@bgllp.com
                           Sean Gorman
                           State Bar No. 08218100
                           BRACEWELL & GIULIANI LLP
                           711 Louisiana Street, Suite 2300
                           Houston, Texas 77002-2770
                           Telephone: (713) 223-2300
                           Facsimile:     (800) 404-3970

                           ATTORNEYS FOR ELITE
                           AIRFREIGHT, INC. AND
                           ADVANCED LOGISTICS
                           SERVICES, INC.
      Pursuant to Texas Rule of Appellate Procedure 10, Appellee Elite Airfreight,

Inc. files this Agreed Motion to Seal the Brief of Appellant.

      Appellee Elite Airfreight requests this Court seal the Brief of Appellant,

filed on April 22, 2015. The Brief of Appellant contains extensive references to

portions of the reporter’s record that the trial court ordered to be sealed pursuant to

Texas Rule of Civil Procedure 76a(1)(a). As a result, the Brief of Appellant should

be sealed.

      On October 17, 2014, the trial court in this case signed an Order, attached as

Appendix A, granting Defendants Elite Airfreight, Inc.’s and Advanced Logistics

Services, Inc.’s (“Defendants”) motion to seal certain testimony and exhibits, on

the basis that they contained privileged communications between Defendants and

Edward Peine, an attorney who had represented Defendants during the relevant

time period. (CR.232-37; Supp.CR.3-4). By its terms, the Order directs that the

following be sealed:

             the transcript of the bill of exceptions made by Plaintiff
             of the testimony that would have been offered by Edward
             Peine; the exhibits to that bill of exception, including the
             deposition transcript of Edward Peine, whether attached
             to the transcript as an exhibit or contained in the court’s
             files in any manner; the exhibits to Plaintiff’s Responses
             to Defendants’ No-Evidence Motion for Summary
             Judgment filed on November 6, 2009; and the exhibits to
             the Plaintiff’s Responses to Defendants’ Traditional
             Motion for Summary Judgment filed on November 13,
             2009.


                                         -1-
(Supp.CR.3-4, attached as Appendix A). These items, which are contained in

Volume 3 of the reporter’s record, remain sealed pursuant to the trial court’s order.

Because the Brief of Appellant contains references to Edward Peine’s sealed

testimony, the Brief also should be sealed.

      This Court has the authority to order that a brief previously filed in public

form be sealed when, as here, the brief contains references to portions of the record

that were sealed by the trial court. See, e.g., R.V.K. v. L.L.K., 103 S.W.3d 612, 614

(Tex. App.—San Antonio 2003, no pet.) (en banc) (ordering the appellate clerk to

retroactively seal the parties’ briefs and motions containing references to sealed

portions of the record); Tindall v. Nationsbank of Tex., N.A., 1998 WL 324731, at

*1 (Tex. App.—Dallas June 22, 1998, no pet.) (per curiam) (“Our records reflect

that on May 21, 1998, pursuant to appellee’s May 7, 1998 agreed motion to seal all

documents contained in the appellate record, supplemented by a copy of the trial

court’s order sealing court records, we ordered the appellate record and all

pleadings and papers on file herein . . . be placed under seal.”). The parties agree

that sealing the Brief of Appellant is appropriate.

                                      PRAYER
      For these reasons, Appellee Elite Airfreight, Inc. requests that this Court

grant the agreed motion and seal the Brief of Appellant filed on April 22, 2015.



                                         -2-
 Respectfully submitted,

   /s/ Yvonne Y. Ho
 Yvonne Y. Ho
 State Bar No. 24055673
 yvonne.ho@bgllp.com
 Sean Gorman
 State Bar No. 08218100
 sean.gorman@bgllp.com
 BRACEWELL & GIULIANI LLP
 711 Louisiana Street, Suite 2300
 Houston, Texas 77002-2770
 Telephone: (713) 223-2300
 Facsimile: (800) 404-3970

 ATTORNEYS FOR APPELLEES,
 ELITE AIRFREIGHT, INC.
 AND ADVANCED LOGISTICS
 SERVICES, INC.




-3-
                      CERTIFICATE OF CONFERENCE

       Pursuant to TEX. R. APP. P. 10.1(a)(5), counsel for Appellee Elite Airfreight,
Inc. conferred with counsel for Appellant Joseph W. Peine, and the parties agreed
to the relief sought in this motion to seal the Brief of Appellant.



                                           /s/ Yvonne Y. Ho
                                          Yvonne Y. Ho


                         CERTIFICATE OF SERVICE
      I certify that a true and correct copy of this motion was served on the
following via the manner indicated on the 15th day of May, 2015:

  Mr. Thomas W. McQuage                                       Via eFile.txcourts.gov
  mcquage@swbell.net
  P.O. Box 16894
  Galveston, Texas 77552-6894
  Telephone: (409)762-1104
  Facsimile: (409)762-4005

  ATTORNEY FOR APPELLANT,
  JOSEPH W. PEINE




                                           /s/ Yvonne Y. Ho
                                          Yvonne Y. Ho




                                         -4-
                                           APPENDIX

Order Granting Motion to Seal Court Records ......................................................... A




                                                 -5-
#4893861.4
Tab A
                                                                                5ELP)S
                                          NO. 2008-61097

JOSEPH W. PEINE,                                  §         IN THE DISTRICT COURT OF
                       Plaintiff,                 §
                                                  §
VS.                                               §         HARRIS COUNTY, TEXAS
                                                  §
ELITE AIRFREIGHT, INC.,                           §
AND ADVANCED LOGISTICS                            §
SERVICES, INC.,                                   §
                Defendants.                       §         189™ JUDICIAL DISTRICT
                     ORDER GRANTING MOTION TO SEAL COURT RECORDS

       On this day the Court considered the Motion to Seal Court Records filed by Elite

Airfreight, Inc. and Advanced Logistics Services, Inc. (“ALSI”) (collectively, “Defendants”)

(the “Motion”).

       After careful consideration, the Court is of the opinion that the Motion should be

GRANTED. The Court finds that the documents sought to be sealed contain communications

that are protected by the attorney-client privilege and that there is therefore a specific, serious

and substantial interest which clearly outweighs the presumption of openness or any probable

adverse effect that sealing will have upon the general public health or safety. Moreover this
                                                                                        y
court finds that no less restrictive means than sealing records will adequately ana effectively

protect the specific interest asserted.

        It is therefore ORDERED that Defendants’ Motion is GRANTED, and pursuant to                          o-

Texas Rule of Civil Procedure 76a(l)(a), the following items are                        sealed: the               JcJ
                                                                                                  A


transcript of the bill of exception made by Plaintiff of the testimony that would have been offered
                                                                                                             yjhx
                                                                                                                   Me
by Edward Peine; the exhibits to that bill of exception, including the deposition transcript of

Edward Peine, whether attached to the transcript as an exhibit or contained in the court’s files in

any manner; the exhibits to Plaintiffs Responses to Defendants’ No-ÿvi                          •til   for
                                                                              Chris Daniel
                                                                              District Clerk
                                                                               OCT 17
                                                 7
                                                                      •ne:    'WsifftSewnyi   r»ViT
                                                                                                       3
Summary Judgment filed on November 6, 2009; and the exhibits to the Plaintiffs Responses to

Defendants’ Traditional Motion for Summary Judgment filed on November 13, 2009.

       The District Clerk is ordered to seal the records.



SIGNED this the
                      11        day of     Lt               , 2014.



                                                       HON. WILLIAM R. BURKE, JR.,
                                                       JUDGE PRESIDING




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