On May 15, 2013, the US Court of Appeals for the Fifth Circuit issued a decision in Wellogix, Inc. v. Accenture, L.L.P, and held that the district court properly allowed expert testimony to support the plaintiff's claim for improper appropriation of trade secrets.

Wellogix developed software that allowed oil companies to move from paper records to a computerized system for the tracking and payment of "complex services." Improvements in the estimation of costs for these services had the potential to save companies hundreds of millions of dollars.

Wellogix entered into marketing agreements with Accenture, a consulting firm. Wellogix shared source code and access to its technology with Accenture and the oil companies that participated in its pilot programs, subject to confidentiality agreements. Without notifying Wellogix, Accenture joined forces with a software company that had previously worked with Wellogix to develop a similar program for BP, one of the oil companies that had participated in the pilot program.

Wellogix sued BP, the software company and Accenture for stealing and misappropriating trade secrets. The software company was dismissed from the case, and BP entered into arbitration with Wellogix. The claims against Accenture proceeded to trial. The jury found in favor of Wellogix and awarded $26.2 million in compensatory damages and $68.2 million in punitive damages. The punitive damages were reduced by remittitur to $18.2 million. Accenture appealed, arguing that due to the alleged trade secrets' inclusion in patents, they were publicly available and the information was therefore not inappropriately acquired. Accenture also challenged the punitive damages award.

The Fifth Circuit held that Wellogix presented sufficient evidence and testimony to support the jury's finding that Accenture improperly acquired Wellogix's trade secrets, including evidence that Accenture had access to Wellogix trade secrets that were uploaded to a confidential portal. Accenture argued that the only evidence supporting the assertion that the trade secrets were on the portal was the non-probative testimony of Wellogix's software expert, who lacked personal knowledge about the contents of the portal.

The Fifth Circuit held that expert testimony could be probative without firsthand knowledge or observation. It was appropriate for the software expert to testify, based on his experience in the industry, that companies working together on a pilot project would share documents containing trade secrets on an online portal, and it was reasonable for a jury to credit his testimony. Because the expert's testimony was limited to whether Wellogix's source code was a secret and whether Wellogix's code matched the code produced by Accenture and the software company, he did not stray from the subject matter of his expertise.

The Fifth Circuit disagreed with Accenture's argument that the expert's general computer science background did not qualify him to testify about software specific to complex services procurement in the oil and gas industry, noting that FRCP 702 does not mandate that an expert be highly qualified to testify about a particular subject. The court also held that if Accenture believed that the expert failed to investigate the facts underlying his opinions, Accenture had the opportunity to highlight any errors through cross-examination and the presentation of contrary evidence, which Accenture did.

The Fifth Circuit also held that the jury's award of punitive damages was supported by the record and was not grossly excessive.