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Sometimes litigants are asked to disclose trade secret information during the course of a lawsuit. These litigants usually object claiming the privilege of trade secret. See, e.g., Fla. Stat. § 90.506 (“A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice.”). However, the trade secret privilege is not absolute. Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199 (M.D. Fla. 1990) (“The trade secret privilege is, however, not absolute under Florida law and the court may order production if the balance tips in favor of promoting the interests of facilitating the trial and doing justice as opposed to the interests of the claimant in maintaining secrecy.”). A court can compel the disclosure of trade secret information to another litigant; even if that litigant is a party opponent or competitor. Peter Mavrick is a Fort Lauderdale business litigation attorney.  The Mavrick Law Firm represents 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 law, and other legal disputes in federal and state courts and in arbitration.

The trade secret privilege was designed to prevent a party from obtaining valuable information that could be used to advantage itself or disadvantage the disclosing party. Freedom Newspapers, Inc. v. Egly, 507 So. 2d 1180 (Fla. 2d DCA 1987) (“The purpose underlying the trade secrets privilege established by section 90.506 is to prohibit a party to a suit from obtaining valuable information that could be used to its own advantage….”). To assert the privilege, the party resisting disclosure must prove the information qualifies as a trade secret and that harm will result if the information is disclosed. Am. Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206 (Fla. 4th DCA 2000). The court usually inspects the information in a private in-camera setting to ensure trade secret information is not unnecessarily divulged. GCTC Holdings, LLC v. Tag QSR, LLC, 346 So. 3d 700 (Fla. 2d DCA 2022). If the resisting party satisfies his initial burden, the requesting party must show reasonable need for the information. Id. The court weighs the requesting party’s need against the resisting party’s interest in maintaining the information’s confidentiality. Lewis Tree Serv., Inc. v. Asplundh Tree Expert, LLC, 311 So. 3d 206 (Fla. 2d DCA 2020). The court will also determine whether safeguards can be implemented to prevent the requesting party from disclosing or using the information. GCTC Holdings, LLC, 346 So. 3d 700. Safeguards usually come in the form of a confidentiality order. Id.

Asserting a trade secret privilege is more difficult when the lawsuit pertains to the defendant’s trade secret misappropriation. Pursuing a trade secret misappropriation claim generally waives the right to claim a trade secret privilege because an ultimate issue in the case is whether the information qualifies as a trade secret. Del Monte Fresh Produce Co. v. Dole Food Co. Inc., 148 F. Supp. 2d 1322 (S.D. Fla. 2001) (“By bringing a claim under the Uniform Trade Secrets Act, and thereby placing the trade secrets at issue, Del Monte essentially has waived its right to assert the trade secret privilege.”). “In order to ascertain whether trade secrets exist, the information at issue must be disclosed.” Lovell Farms, Inc. v. Levy, 641 So. 2d 103 (Fla. 3d DCA 1994). However, the disclosure requirement does not necessarily mean a trade secret plaintiff has no protection. Courts can still require information to be exchanged under a confidentiality order or limit disclosure to only the information that is relevant to the dispute. See Ecometry Corp. v. Profit Ctr. Software, Inc., 2007 WL 9706934, at *5 (S.D. Fla. Mar. 15, 2007) (To “the extent that Interrogatory number 9 calls for the divulgence of trade secrets or confidential information, this Court ORDERS that PCS maintain the confidential nature of such information.”); Owners Ins. Co. v. Armour, 303 So. 3d 263 (Fla. 2d DCA 2020) (“Even though the disclosure of various types of information can result in irreparable harm, including material protected by privilege, trade secrets, or work product, the baseline test for discovery is always relevance to the disputed issues of the underlying action.”).

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Businesses that conduct online commerce with Florida residents should be prepared to litigate disputes arising out of their transactions in Florida. The Fourth District Court of Appeal has described the interplay of the internet and assessments of specific and general jurisdiction as “a confusing area of the law that is mainly scattered across the federal courts…” Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 248 (Fla. 4th DCA 2011). As several transactions are done online, many defendants may be unsure if they can be haled into the Florida courts if they live in another state. There is a two-step process for determining if an out of state defendant can be forced to litigate in Florida. Florida’s Long Arm Statute, § 48.193, Fla. Stat., gives clear guidelines as to how jurisdiction can be acquired.

There are two types of jurisdiction that Florida has over out of state defendants: specific or general. “As the first step in a two-step process, it must initially be determined if sufficient facts exist to confer either specific jurisdiction or general jurisdiction pursuant to Florida’s long-arm statute.” Caiazzo 73 So. 3d at 250. A showing of either type of jurisdiction will establish the minimum contacts needed for the out of state defendant to be haled into a Florida court.  After an assessment of minimum contacts, the court then does an assessment of due process. See Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945).

Fla. Stat. 48.193(1) provides specific jurisdiction over defendants where the cause of action arises out of their isolated conduct within Florida. 48.193(1) Fla. Stat. provides a non-exhaustive list of activities that can subject a defendant to specific jurisdiction, some activities that are pertinent to business defendants include, but are not limited to:

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Sellers who want to protect themselves from being sued by disgruntled customers should carefully design their websites to validly incorporate the terms and conditions that they would like to impose in the transaction. The validity of an online seller’s “terms and conditions” is critical to determine the rights and obligations of the seller and buyer in the event of litigation arising out of the parties’ transaction. Sellers who successfully incorporate their terms and conditions into their online transaction can, among other things, force buyers to arbitrate, have claims litigated in certain forums, and limit their exposure. Thus, Florida businesses that engage in e-commerce should look at the Fourth District Court of Appeal’s recent decision in, Inc. v. McCants, 210 So. 3d 761 (Fla. 4th DCA 2017), for guidance.

In McCants, the appellate court examined the validity of an arbitration clause that was purportedly incorporated into an online purchase agreement. The court began its assessment by noting that there are generally two types of agreements online purchase agreements: “browsewrap” agreements and “clickwrap” agreements. See id. at 762. Clickwrap agreements are generally enforceable because they require buyers to click a box to acknowledge that they read the seller’s terms and conditions. See id.  Whereas, “browsewrap” agreements simply provide a link to the terms and conditions and does not require the buyer to click an acknowledgement of the seller’s terms and conditions during the checkout process. See id. “Browsewrap” agreements have been enforced when the purchaser has actual knowledge of the terms and conditions or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice. Id. (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014).

“Uniformly, courts have declined to enforce “browsewrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them. Id. at 765. In McCants, an online retailer argued that an arbitration clause was incorporated into the purchase agreement because a browsewrap agreement that contained the terms and conditions of the sale was displayed during the transaction. See id. However, in this case, the browsewrap agreement was found not to be “conspicuous enough to put a reasonably prudent person on inquiry notice.” Id. The court reminded potential litigants that to incorporate a collateral document into an agreement, Florida contract law mandates that the agreement must: “(i) specifically provide that the collateral document is being incorporated; and (ii) sufficiently describe the collateral document being incorporated.” Id.

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Under Florida law, government records are often admissible both as business records and public records, but it is generally easier to obtain admission as a public record. An evidentiary proponent may easily authenticate public records by requesting the state supply the record under seal.   It also is not necessary to show the state created the public records at or near the time of the memorialized matter, and therefore it is much easier to admit into evidence than business records.  By contrast, authenticating a business record requires either: (1) a record custodian to testify under oath, (2) stipulation of the parties that the document is a business record, or (3) through a declaration by a person with knowledge that the record (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; (b) was kept in the course of the regularly conduct activity; and (c) was made as a regular practice in the course of the regular conducted activity.

In Florida, admission of public records is governed by Florida Statutes § 90.803(8), which references two types of public records. The first type includes records setting forth the “activities of the office,” while the second type includes records setting forth matters observed pursuant to a duty imposed by law as to matters which there was a duty to report.

Regarding the first type of public records, the Supreme Court of Florida in Yisreal v. State of Florida, 993 So.3d 952 (Fla. 2008), explained that the purpose of the “activities of the office” exception is to allow public records prepared for purposes independent of specific litigation and does not need to be based on personal knowledge.  Yisreal held that the letter at issue was not an “activities of the office” based public record because the letter was drafted as a gratuitous hearsay letter for the purpose of litigation, rather than a document creating and maintaining Crime and Time Reports, which was the relevant activity of the office.

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