Florida law has a statutory privilege concerning disclosure of trade secrets in a lawsuit. Florida Statutes Section 90.506 states in pertinent part: “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. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or the person’s agent or employee.” In American Expres Travel Related Svcs., Inc. v. Cruz, 761 So.2d 1206 (Fla. 4th DCA 2000), Florida’s Fourth District Court of Appeal explained that “[w]hen trade secret privilege is asserted as the basis for resisting production, the trial court must determine whether the requested production constitutes a trade secret; if so, the court must require the party seeking production to show reasonable necessity for the requested materials. The burden is on the party resisting discovery to show “good cause” for protecting or limiting discovery by demonstrating that the information sought is a trade secret or confidential business information and that disclosure may be harmful…If production is then ordered, the court must set forth its findings.” Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. 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 litigation, and other legal disputes in federal and state courts and in arbitration.
This determination will usually require that the trial court conduct an in camera inspection, i.e., the trial Judge reviews the subject documents to determine whether they contain trade secrets, and sometimes an evidentiary hearing. The issue of in camera review is an important procedural safeguard. A great deal of appellate litigation has occurred when trial courts did not review the allegedly “trade secret” documents before allowing the opposing party to review them. For example, in Salick Health Care, Inc. v. Spunberg, 722 So.2d 944 (Fla. 4th DCA 1998), the appellate court determined that the trial court departed from the essential requirements of law when it compelled production of documents alleged to be proprietary and confidential trade secret information, without first conducting an in camera hearing and inspection and making specific findings of fact concerning the trade secret objections. Trade secret litigation often involves highly technical information in the context of head-to-head competitors, making it essential for the trial court to conduct either in camera review or hold an evidentiary. In Beck v. Dumas, 709 So.2d 501 (Fla. 4th DCA 1998), the appellate court addressed whether certiorari review should lie when a lower court, upon a motion to compel production, required production of a source code, design documentation, and other technical information alleged to be computer trade secrets, without first conducting an in camera inspection or evidentiary hearing. The Beck decision explained: “The question before us is whether the court departed from the essential requirements of law by ordering [Petitioner] to disclose its trade secret without first conducting either an in camera inspection or an evidentiary hearing. We think so, given the sophisticated and highly technical nature of the requested materials. The broad judicial discretion which the trial court enjoys in ruling on discovery matters of this type cannot properly be exercised in a vacuum or on a mere whim. The court needs sufficient insight into the relevant factors which must be weighed before deciding the competing interests of the respective parties. Conceivably, on a matter with which the court is familiar and which is not the subject of a genuine factual dispute, argument of counsel might well suffice. But here the matters were of a highly technical nature, and the court candidly acknowledged its lack of familiarity with the requested materials. Under the circumstances, and given the inherent nature of advocacy, the court needed more than the argument of [Respondent’s]’ counsel that he “needed” the materials upon which to base its decision to override [Petitioner’s] statutory privilege against disclosure.”