FORT LAUDERDALE BUSINESS LITIGATION: WAIVING THE TRADE SECRET PRIVILEGE

Litigants should carefully consider the type of evidence they will need to establish their claims at trial because litigants can unwittingly waive their right to claim certain privileges that would otherwise protect the information from disclosure. Some privileges like the well-known attorney client privilege, protects litigants against disclosure of information shared with their counsel during the course of the lawyer’s representation of that client about a legal matter. Fla. Stat. § 90.502 (“A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.”). However, there are many other lesser-known privileges. For example, the work product privilege is a companion to the attorney client privilege preventing the disclosure of attorney work product made in anticipation of litigation. Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970) (holding that work product privilege applies to an attorney’s “[p]ersonal views… as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience.”). 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 privilege can be waived if a litigant injects the privileged issue into the litigation under the “at issue” doctrine. Coats v. Akerman Senterfitt & Edison, P.A., 940 So. 2d 504 (Fla. 2d DCA 2006) (“[A]ll personal privileges may be waived by the client.”). A privileged matter will be waived under the “at issue” doctrine “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.” Savino v. Luciano, 92 So. 2d 817 (Fla.1957). Merely bringing a lawsuit or defending against a lawsuit does not trigger the at issue doctrine. Instead, the doctrine is triggered when a party “raises a claim that will necessarilyrequire proof” of the privileged material. Jenney v. Airdata Wiman, Inc., 846 So. 2d 664 (Fla. 2d DCA 2003). The at issue doctrine has sweeping effect and can even nullify the sacrosanct attorney client privilege. Coats, 940 So. 2d 504 (analyzing application of the at issue doctrine to a claim of attorney client privilege).

The “at issue” doctrine has been used to force litigants bringing trade secret claims to disclose their trade secrets early in the lawsuit. US Thrillrides, LLC v. Intamin Amusement Rides Int. Corp. Est., 2023 WL 11693750 (M.D. Fla. Dec. 12, 2023) (“Florida courts adjudicating FUTSA cases have said that the ‘plaintiff is required to identify with reasonable particularity the trade secrets at issue before proceeding with discovery.’”). As a result, litigants must describe their trade secrets with reasonable particularity when he or she places those trade secrets at issue in the lawsuit to establish the trade secrets actually exist. Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1322 (S.D. Fla. 2001); Revello Medical Management, Inc. v. Med-Data InfoTech USA, Inc., 50 So. 3d 678 (Fla. 2d DCA 2010). This means, litigants should be prepared to describe their trades secrets in some detail at the beginning of the case and disclose additional details throughout the proceeding.

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.