The Business Court has denied lawyers with an India-based law firm access to a defendant’s highly confidential information because of the risk of inadvertent disclosure.
Unimacts Global, LLC, Zetwerk Manufacturing US Inc., and Zetwerk Manufacturing Business Private Limited v. Ayr Energy, Inc. 2026 Tex. Bus. 60; August 17, 2026) arose from a discovery dispute. Both parties alleged misappropriation of trade secrets. In March 2026 the court signed a protective order creating two categories of protected discovery, confidential information and attorney’s eyes only information. During discovery, however, a disagreement popped up over whether the order permitted Plaintiffs’ attorneys of record to disseminate Defendants’ protected discovery materials to attorneys at BTG Advaya, an India-based law firm that represents Plaintiffs in ligitation matters but were not counsel of record in the present suit. Defendants objected.
In an opinion by Judge Barnard, the court ruled that Plaintiffs’ attorneys could not share protected discovery with BTG Advaya’s lawyers. The court first observed that “when deciding to issue a protective order limiting access to trade secret, proprietary, financial, sensitive, or other highly confidential discovery materials, courts weigh the risks of inadvertent disclosure or misuse against the potential that barring access will impair a party’s ability to prosecute or defend its claims.” Striking this balance involves consideration of “the factual circumstances surrounding each individual attorney’s activities, association, and relationship with a party” (citations omitted). Relevant factors include “(1) whether the individual attorney receiving confidential information is involved in the company’s competitive decision-making; (2) the level of risk of inadvertent disclosure; and (3) the hardship imposed by restricting disclosure.”
The court’s protective order in this case granted access to confidential information to “Attorneys working on this Lawsuit on a Party’s behalf and those attorneys employees, agents, and signing contractors who provide assistance in this lawsuit.” As for attorney’s eyes only information, it could be shared with “Outside Counsel Working on this Lawsuit on a Party’s behalf and those attorneys’ employees and agents assisting Outside Counsel in this Lawsuit.” Plaintiffs argued that BTG Advaya was in the circle of trust because they met the “outside counsel” criteria, even though they weren’t counsel of record. The court didn’t go along with that argument. It pointed out that the protective order “is not entirely devoid of any reference to counsel of record in this lawuit,” observing that access to confidential information is limited to attorneys of record and those making an appearance in the lawsuit. The court, however, acknowledged that the order was “not definitive,” so it turned to the balancing test.
Based on the Business Court’s analysis in two prior cases, Westlake and Ecolab (both on our website and involving disclosure of protected discovery to in-house counsel), the court weighed “the risk that the protected discovery information in this case will be inadvertently disclosed or misused against the need for BTG Advaya’s attorneys to access to this information.” Here the evidence contained four declarations signed by BTG Advaya attorneys to the effect that Plaintiff Zetwork Manufacturing was their client and that they provide Zetwork “legal advice on litigtion, including on this matter against Ayr Energy, Inc.” One of the declarations additionally described “an instance in which she mistakenly received AEO-designated information in this case and discussed it with a corporate decision-maker ….” She promised she wouldn’t do it again. Big oops. Acknowledging that improper disclosure had already been made, the risk of further disclsoure “is not theoretical.” The fact that one of BTG Advaya’s attorneys had already breached the wall “demonstrates the inability . . . to compartmentalize protected information received in this case and shield it from a corporate decision maker.”
In addition to that, BTG Advaya lawyers were involved in a separate lawsuit against one of Defendant’s principals and in other litigation matters “further increases the likelihood of future inadvertent disclosure and misuse of protected information from this lawsuit.” With these concerns in mind, the court noted that the lawyers were in India and outside the subpoena power and control of the court, “reduc[ing] the remedies the court could implement in the event of future disclosures or misuse of protected information.” The court thus declined to permit access.
Plaintiffs argued that denying access to the BTG Advaya lawyers would deprive them of legal assistance they needed to mount a proper case. But in order to show that, Plaintiffs needed to adduce specific and concrete evidence that denial of access would actually prejudice their presentation of the case. They didn’t do that. The court observed that this case has plenty of lawyers already, lawyers who “are well-versed in Texas law and highly competent.” It determined, consequently, that “Plaintiffs have not established a significant need for BTG Avaya’s attorneys to have access” to the protected discovery.
