Nexpera LLC v. Sage Enviro Tech Ltd. et al.

1 / 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
NEXPERA LLC,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:25-CV-00047
SAGE ENVIRO TECH LTD., et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION ON THE PARTIES’
CROSS-MOTIONS FOR TEMPORARY RESTRAINING ORDERS
On April 21, 2026, after this case had become particularly contentious and to assist
in managing the Court’s docket, United States District Judge Nelva Gonzales Ramos
referred the case to the undersigned Magistrate Judge for case management. (D.E. 124).
Pending are the parties’ cross motions for preliminary injunctive relief. (D.E. 118, D.E.
123). For the reasons set forth below, the undersigned RECOMMENDS the Motions be
DENIED without prejudice.
I. BACKGROUND
Nexpera LLC (“Nexpera”) and Sage Enviro Tech Ltd. and Sage Water Ltd.
(“Sage”) are companies that provide technical and chemical engineering services to a
variety of chemical manufacturers, refineries, and other organizations. Stated simply,
Nexpera and Sage are competitors.
United States District Court
Southern District of Texas
ENTERED
April 30, 2026
Nathan Ochsner, Clerk
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 1 of 11

2 / 11
This action involves chemical engineering processes which use potassium
hydroxide (“KOH”). KOH has many industrial uses. Historically, the industrial use of
KOH has resulted in the creation of extensive waste byproducts. However, technology,
processes, and chemical engineering techniques now exist to convert these waste
byproducts back into KOH or other useful products. This process is sometimes called
regeneration. These developments have resulted in reduced costs, reduced environmental
impacts and increased profits. Nexpera and Sage are both involved in providing their
customers with KOH regeneration services. At the risk of oversimplification and
acknowledging there are a variety of claims and counterclaims in this action, this case is
basically about whether Sage and Nexpera are lawfully using their own KOH processes
and processes generally known in the industry or whether they have stolen or
misappropriated the technology or processes from each other.
This action was originally filed by Nexpera against Sage on February 12, 2025. On
December 16, 2025, Nexpera filed an amended complaint adding Daniel Prokop as a
defendant. (D.E. 67). Mr. Prokop is an engineer who worked for a predecessor company
of Nexpera. Mr. Prokop worked in developing KOH regeneration processes. He is alleged
to have later taken employment with Sage and continued his work in KOH regeneration.
Nexpera alleges Prokop disclosed Nexpera’s trade secrets to Sage.
The course of this litigation has been active and at times contentious, including the
parties not timely conferring on routine motions or not responding to opposing counsel
(D.E. 21, D.E. 25, D.E. 34, D.E. 94, D.E. 95), contested case management matters (D.E.
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 2 of 11

3 / 11
36, D.E. 42, D.E 80), litigating motions to dismiss (D.E. 14, D.E. 29, D.E. 30, D.E. 43,
D.E. 77, ), contested motions to amend (D.E. 34), motions for summary judgment (D.E.
44), motions to compel (D.E. 57, D.E. 74), four premotion conferences regarding discovery
disputes (docket entries 12/10/2025, 12/17/2025, 02/04/2026, 04/15/2026), amended
scheduling orders (D.E. 72, D.E. 117), opposed motions regarding the protective order
(D.E. 93), amended pleadings (D.E. 67, D.E. 101, D.E. 112), opposed motions to file reply
(D.E. 104), opposed motions for extensions (D.E. 114, D.E. 116), a variety of motions to
seal some being uncontested, and most recently, the parties’ cross motions for preliminary
injunctive relief. (D.E. 118, D.E. 123).
The case recently took another turn after the attorneys for Sage and Prokop took a
recorded statement from Eli McIntosh while he was under oath. (D.E. 120). Mr. McIntosh
is a former employee of Nexpera who was directly involved in the development of KOH
processes and his statement is extremely favorable to Sage and Prokop and damaging to
Nexpera. For example, Mr. Prokop testified some of the technology at issue in this case
was commonly known and used in the industry, Sage did not steal the technology at issue
in this case from Nexpera, Nexpera wrongfully appropriated some of the KOH processes
from Sage, and Sage was not using the same process as Nexpera. (D.E. 120, pp. 4, 6-8).
The statement was not a formal deposition because Nexpera was not notified and did not
participate in the taking of the statement.
Mr. McIntosh’s statement resulted in both parties filing emergency motions on April
20, 2026, for protective orders (D.E. 118, D.E. 123). Nexpera also filed a motion to file an
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 3 of 11

4 / 11
amended complaint seeking to add Mr. McIntosh as a defendant for breaching his
confidentiality agreement with Nexpera and other claims. (D.E. 121). On April 21, 2026,
Judge Ramos referred this case to the undersigned. A hearing was held before the
undersigned on April 28, 2026, at which counsel appeared in person. Mr. McIntosh had
not yet appeared in the case, but his attorney was present, and the undersigned allowed him
to make a limited appearance. During the hearing the undersigned granted Nexpera’s
motion to amend and ordered that Mr. McIntosh is now subject to the Court’s protective
order. (D.E. 134).
II. THE PARTIES’ MOTIONS FOR TEMPORARY RESTRAINING ORDERS
Nexpera’s motion for a protective order arises from the Defendant’s interview of
McIntosh. Nexpera’s position is that it was a secret and underhanded interview which
resulted in the further disclosure of Nexpera’s trade secrets. Nexpera presented evidence
that McIntosh had deleted text messages from his Nexpera-issued cellular telephone upon
leaving his position at Nexpera. There is further evidence that McIntosh, while an
employee of Nexpera, sent proprietary process information to his wife Mary McIntosh’s
personal email account. Mrs. McIntosh later took a job with Sage. Nexpera maintains these
circumstances warrant immediate injunctive relief to: “(1) enjoin further destruction of
evidence by Defendants or their agents; (2) identify all Nexpera confidential information
and trade secrets disclosed to unauthorized recipients through the events discussed herein;
(3) prohibit further disclosure of Nexpera’s confidential information and trade secrets to
unauthorized recipients; and (4) produce for forensic inspection all personal devices and
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 4 of 11

5 / 11
electronic accounts that were used by Defendants or their agents as part of the events
discussed herein, to ensure that a full factual record is available to the Court.” (D.E. 123,
p. 6).
Sage and Prokop respond there was nothing untoward about their interview of
McIntosh. They counter that McIntosh was a known witness, and they had been trying to
schedule his deposition while McIntosh was an employee of Nexpera, but Nexpera had
been stonewalling. McIntosh, at the time he was interviewed, was not an employee of
Nexpera and the Defendants argue they do not need Nexpera’s permission to interview
witnesses. The Defendants believe McIntosh’s testimony supports their concerns that
Nexpera has not fully complied with its discovery obligations and may be withholding
other relevant and important information. Further, Mr. McIntosh’s testimony, according
to Sage and Prokop, presents substantial evidence that not only are the Defendants not
liable, but rather Nexpera is liable for stealing trade secrets. They further present evidence
Nexpera is using this litigation to interrupt or interfere with Sage’s efforts to obtain
contracts in the KOH regeneration services industry for at least five of Sage’s clients. (D.E.
118-2).
Prokop and Sage ask the Court to issue an order: “1. Enjoining Nexpera, its officers,
agents, employees, and all persons acting in concert with it from further developing,
constructing, deploying, marketing, or using any KOH regeneration technology, process,
or equipment derived from or modeled upon the Prokop/Sage Trade Secrets, including but
not limited to the direct lime injection onsite unit design; 2. Enjoining Nexpera from further
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 5 of 11

6 / 11
disseminating, disclosing, or utilizing any information obtained through surveillance,
unauthorized photography or videography, or other improper means regarding Prokop’s
and Sage’s proprietary processes and technology; [and] 3. Requiring Nexpera to identify
and return or destroy all materials, data, photographs, videos, designs, engineering
documents, and other materials derived from its improper acquisition of the Prokop/Sage
Trade Secrets.” (D.E. 118, p. 12).
III. APPLICABLE STANDARD
The parties agree with the applicable legal standard. To obtain a preliminary
injunction under Federal Rule of Civil Procedure 65, the movant must demonstrate: (1) a
likelihood of success on the merits; (2) a likelihood to suffer irreparable harm in the
absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that
an injunction is in the public interest. Ramirez v. Collier, 595 U.S. 411, 142 S. Ct. 1264,
1269 (2022). The moving party must carry the burden as to all four elements before a
preliminary injunction may be considered. Voting for America, Inc. v. Steen, 732 F.3d 382,
386 (5th Cir. 2013) (internal quotations and citations omitted).
Preliminary injunctive relief is “an extraordinary and drastic remedy.” Direct
Biologic, L.L.C. v. McQueen, 63 F.4th 1015, 1020 (5th Cir. 2023). Mississippi Power &
Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (“The decision
to grant a preliminary injunction is to be treated as the exception rather than the rule.”). To
issue such relief, the Court must “balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the requested relief.” Id. (internal
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 6 of 11

7 / 11
quotations and citations omitted). And only when the movant has “clearly carried the
burden of persuasion should a court grant preliminary injunctive relief.” Id. (internal
quotations and citations omitted).
IV. ANALYSIS
As an initial matter, the undersigned notes this litigation has likely been so
contentious because of the stakes involved for the parties. The result of this litigation may
very well have serious financial and operational consequences for the party or parties that
do not prevail. The parties believe the other side is hiding or destroying evidence. Nexpera
also is concerned that Mr. McIntosh, who has not appeared in this case, has destroyed
evidence or may do so in the future. The undersigned is always concerned about the
preservation of evidence and presiding over cases in a manner that fosters the appropriate
free exchange of discovery to allow all parties to present their best case. In connection with
that, the undersigned entered a separate preservation of evidence order, to encourage fair
play and provide proverbial teeth to discourage unethical litigation tactics. (D.E. 134).
In entering the preservation of evidence order, the undersigned specifically declined
to make a finding that any party has acted unethically. However, that door remains open
and may be revisited if appropriate. The undersigned ordered that:
1. Eli McIntosh is subject to this Court’s Protective Order;
2. Attorney Andrew Greenwell will transmit the Court’s Protective Order to Mr.
McIntosh without unnecessary delay and will explain it to him;
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 7 of 11

8 / 11
3. If the parties would like the entry of a protective order that specifically names
Mr. McIntosh, they are directed to file an appropriate motion with a proposed
order; and
4. No party or witness to this action, or person subject to any party’s control or
direction, including Eli McIntosh and his wife, shall destroy, hide, or alter with
the purpose of changing its evidentiary nature, any item that may be relevant or
lead to relevant information in this action. This Order includes, but is not limited
to, email messages, voice messages, voice memos, text messages, social media
posts, direct messaging communication applications, photographs, videos,
diagrams, data, charts, graphs, computer or electronic data, memoranda, letters,
notes, draft documents, physical papers, internet searches, artificial intelligence
queries or creations, and data stored remotely or in “the cloud.” Failure to
comply with this order will result in sanctions. The attorney in charge, for each
party in this action, including counsel for Mr. McIntosh, will: (1) discuss this
order with their respective clients and (2) transmit this order to their respective
clients for appropriate distribution.
Thus, while the instant M&R recommends the Court deny the parties’ motions for
the specific injunctive relief requested, the undersigned’s April 28, 2026 Order (D.E. 134)
is designed to assist all parties in preparing their respective cases. Regarding the parties’
motions for preliminary injunctive relief, the undersigned does not find that either motion
presents the type of an extraordinary situation to warrant the relief requested. Ours is an
adversarial judicial system. When you are in a fight, a real fight, it is not uncommon to feel
that the other side is fighting dirty especially when the outcome is uncertain as in this case.
With regard to the first factor, the likelihood of success on the merits, the outcome
of this case is unclear. Cases that involve technical and scientific evidence are difficult to
decide and are also difficult to predict the outcome. This case is no exception. As the
undersigned explained at the hearing, important contested questions of fact abound in this
case. Neither side has presented sufficient evidence in connection with their respective
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 8 of 11

9 / 11
motions, at this stage, for the Court to find any movant has met its burden of establishing
a likelihood of success on the merits or that temporary or emergency injunctive relief is
necessary.
With regard to the second factor, irreparable harm in the absence of preliminary
relief, neither side has met its burden. In connection with Nexpera’s motion, Nexpera is
concerned, among other things, about Mr. McIntosh revealing trade secrets. The
undersigned has read Mr. McIntosh’s testimony (D.E. 120) and leaves the door open as to
whether Mr. McIntosh violated his confidentiality agreement or disclosed confidential
information. However, Mr. McIntosh’s testimony is really pretty general and does not
contain the type of technical information to cause the Court to have a grave concern over
Mr. McIntosh sitting for an interview with the defense lawyers. Additionally, the Federal
Rules of Civil Procedure and this Court’s authority provide sufficient protection of
Nexpera’s interests. In connection with Sage and Prokop’s motion, the undersigned is
concerned about whether Nexpera is interfering with Sage’s business opportunities.
Nexpera would respond that it has a right to protect its trade secrets and is merely stating
facts when conversing with clients or potential clients. The harm to the prevailing party or
parties in this action will most likely be addressed with an award of damages and injunctive
relief. In that regard, because of the uncertainty of this litigation, both parties would be
well advised to exercise caution in their communication with clients about the instant
litigation. The undersigned finds, however, the defendants have not shown irreparable
harm in the absence of preliminary relief.
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 9 of 11

10 / 11
The final factors are the balance of equities and the public interest. These factors
weigh in favor of not granting either motion. In connection with Nexpera’s motion, it is
not equitable or in the public interest to order a blanket forensic examination of unspecified
electronic devices. In connection with the Defendants’ motion, it is not in the public interest
to judicially interfere with ongoing commerce before this contested litigation is resolved.
(D.E. 134).
V. CONCLUSION
For the reasons set forth above, the undersigned respectfully RECOMMENDS
Defendant’s Opposed Joint Request for Injunctive Relief (D.E. 118) and Plaintiff’s Sealed
Emergency Motion for Temporary Restraining Order and Motion for Preliminary
Injunction, (D.E. 123) be DENIED without prejudice.
Respectfully submitted on April 30, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 10 of 11

11 / 11
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
Case 2:25-cv-00047 Document 139 Filed 04/30/26 in TXSD Page 11 of 11