FORT LAUDERDALE BUSINESS LITIGATION: TRADE SECRET LITIGATION PROTECTIONS

Trade secret owners often face a dilemma when debating whether to prosecute a lawsuit against another for trade secret misappropriation. The trade secret owner can bring the lawsuit and risk exposing the trade secret even more in the court proceeding. Conversely, the trade secret owner can refrain from bringing the lawsuit to prevent exposure in the court proceeding but risks complete erosion of the trade secret because it is hands of another. Neither decision is ideal. But a decision must be made. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A trade secret owner usually has to disclose the secret during the course of litigation. Case law generally requires a trade secret plaintiff to identify the secret with reasonable particularity before the court allows the parties to proceed with discovery. AAR Mfg., Inc. v. Matrix Composites, Inc., 98 So. 3d 186 (Fla. 5th DCA 2012) (“In trade secret misappropriation cases, a plaintiff is required to identify with reasonable particularity the trade secrets at issue before proceeding with discovery.”). The law prohibits a trade secret owner from refusing to disclose the secret because the owner made the secret an issue of the lawsuit. Revello Med. Mgmt., Inc. v. Med-Data Infotech USA, Inc., 50 So. 3d 678 (Fla. 2d DCA 2010) (“The plaintiff must, as a threshold matter, establish that the trade secret exists. To do so, it must disclose the information at issue.”); Savino v. Luciano, 92 So. 2d 817 (Fla. 1957) (“And when a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence, we think that he has waived his right to insist, in pretrial discovery proceedings, that the matter is privileged.”). It would generally be unfair to require a defendant to defend against a trade secret without knowing what the trade secret is or why it qualifies as a trade secret.

The requirement to disclose a trade secret during the course of a trade secret lawsuit does not mean the trade secret owner must go without protections. The law usually obligates a court to protect trade secrets to the extent possible. Florida Statute § 688.006 (A “court shall preserve the secrecy of an alleged trade secret by reasonable means.”). Therefore, courts may grant protective orders limiting disclosure to only those individuals necessary to conduct the litigation. For example, a protective order may limit disclosure to the parties, their respective counsel, and the Court. A protective order can also preclude the persons exposed to the secret from disclosing it to anyone else and can limit use of the trade secret to only those needed for the litigation. A court can also hold in camera hearings whereby he or she is the only person capable of reviewing the trade secret. Or a court can require certain court records to be sealed to prevent the public from acquiring the trade secret information through public record searches. These measures are designed to protect the trade secret from further unwanted disclosure while simultaneously facilitating the litigation process. While these protective measures are not infallible, they are frequently used in trade secret litigation and considered to provide adequate protections.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.