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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

WELLCOMEMAT, LLC,

 Plaintiff,

v.

AYLO HOLDINGS S.à r.l., AYLO

FREESITES LTD, AYLO PREMIUM,

LTD, 9219-1568 QUEBEC, INC., and

JARROD BELTRAN,

 Defendants.

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CIVIL ACTION NO. 2:23-CV-00483-JRG-RSP

MEMORANDUM ORDER

Before the Court is the Motion for a Protective Order filed by Defendants Aylo Holdings 

S.à.r.l., Aylo Freesites Ltd, Aylo Premium Ltd, and 9219-1568 Quebec, Inc. Dkt. No. 74; Dkt. 

No. 93 (reply in support). Defendants request “a protective order to prevent [Plaintiff] from reusing consultants, who previously reviewed Defendants’ highly confidential technical documents 

and source code in another case.” Dkt. No. 74 at 1. Plaintiff WellcomeMat, LLC opposed the 

Motion with a response and supporting sur-reply brief. Dkt. Nos. 88, 98. For the reasons discussed 

below, the Motion is DENIED.

I. LEGAL STANDARD

The Court has the inherent power to disqualify an expert. Koch Ref. Co. v. Jennifer L. 

Boudreaux MV, 85 F.3d 1178, 1181 (5th Cir.1996). However, the Fifth Circuit has noted that 

disqualifying an expert is rare. Id. To resolve typical issues of disqualification, the Fifth Circuit 

has provided a two-part test. Id. The first question is whether it was “objectively reasonable for 

the first party who claims to have retained the expert to conclude that a confidential relationship 

existed.” Id. (citing Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C. 1991)). The second question is whether 

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“any confidential or privileged information [was] disclosed by the first party to the expert.” Id. 

(citing Mayer, 139 F.R.D. at 3). Witnesses should be disqualified only if the answer to both 

questions is yes. Id. (citing Mayer, 139 F.R.D. at 3). Additionally, the Koch court noted that courts 

frequently consider the public interest in allowing or not allowing an expert to testify. Id. The Fifth 

Circuit also makes clear that “the party seeking disqualification bears the burden of proving these 

elements.” Id. (citing Cordy v. Sherwin–Williams Co., 156 F.R.D. 575, 580 (D.N.J. 1994)).

II. ANALYSIS

A. Messrs. Bhatia and Shinde

Defendants request that Plaintiff’s source code reviewers who were used previously in a 

separate case1 against Defendants be disqualified from reviewing source code in this case. Dkt. 

No. 74 at 9. Specifically, Defendants assert that Plaintiff’s counsel used Messrs. Bhatia and Shinde 

to review source code in the previous litigation. Id. Defendants assert that despite these 

circumstances not being the “typical ‘switching sides’ case” disqualification is still warranted. Id.

at 9. Defendants contend that the experts were in an “indirect confidential relationship with 

Defendants” due to signing an “acknowledgement” of the protective order entered in the previous 

litigation. Id. at 10. Further, Defendants assert that “Aylo produced and disclosed highly 

confidential material for these experts to review” satisfying the final prong of the Koch test. Id.

Defendants have failed to meet their burden of proving a previous confidential relationship 

with the experts. The Court does not find that agreeing to a protective order as an adverse party’s 

expert in a previous litigation creates the kind of confidential relationship contemplated by Koch. 

See Koch, 85 F.3d at 1182. Here, Messrs. Bhatia and Shinde were adverse to Defendants and 

remain adverse to Defendants in this action. See Intertrust Technologies Corp. v. Cinemark 

1 Preservation Technologies LLC v. MindGeek USA Inc., No. 2:17-cv-08906-DOC-JPR (C.D. Cal.)

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Holdings, Inc., 2020 WL 2306600, at *5 (E.D. Tex. 2020) (Gilstrap, J.); Luminati Networks Ltd. 

v. UAB Tesonet, 2019 WL 8331448, at *3 (E.D. Tex. 2019) (Gilstrap, J.). 

Further the Court is unpersuaded by Defendants arguments regarding risks of what the 

experts might rely on from the previous litigation. Defendants have not asserted that the experts 

have violated the previous litigation’s protective order, nor shown a substantial risk that protected 

information may be detrimentally used. Rather Defendants’ concerns stem from “information that 

directly overlaps with this case” that was disclosed in the previous litigation. The Court finds that 

if the information from the past case is relevant, it must be disclosed in this case per the Discovery 

Order. If it is not relevant to this case, the Protective Order from the previous case provides 

sufficient protection. Regardless, the Court does not find a dispute related to this topic upon which 

relief should be granted. 

B. Mr. Kootsookos

Defendants attempt to impute Messrs. Bhatia and Shinde’s purported disqualification to 

Mr. Kootsookos, who was not involved in the previous litigation. Dkt. No. 74 at 12. Defendants 

assert that this imputation is proper due to “[counsel for Plaintiff’s] refusal to have him execute a 

declaration that he did not discuss PT Case confidential materials with Messrs. Bhatia and Shinde.” 

Id. Defendants generally assert that the “refusal to have WellcomeMat’s proposed source code 

reviewers attest to basic assurances” is circumstantial evidence of the perceived risks supporting 

Defendant’s request for disqualification. Dkt. No. 74 at 12–15. 

The denial of relief as to Messrs. Bhatia and Shinde applies to Mr. Kootsookos as well.

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