MIAMI BUSINESS LITIGATION: PUBLICLY FILING TRADE SECRETS

Trade secrets must remain a secret first, and foremost. The definition of trade secret usually contains a statement to the effect of information that is “not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use” and is “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Fla. Stat. § 688.002. At first blush, it appears the lawful disclosure of a trade secret would nullify the information’s trade secret status. But this is not necessarily the case. Some disclosure is permitted while other disclosure is not permitted. Hurry Fam. Revocable Tr. v. Frankel, 2023 WL 23805 (M.D. Fla. Jan. 3, 2023) (“[A]bsolute secrecy of trade secrets is not required to prevail on a trade secrets claim; instead, the secrecy requirement is generally treated as a relative concept and requires a fact-intensive analysis.”). This article explores a litigant’s ability to retain trade secret status over information he or she files in the court record in pursuit of a trade secret misappropriation claim against another. The Miami 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.

“Intentional publication of material will destroy [the material’s] trade secret status.” Precision Automation, Inc. v. Tech. Svcs., Inc., 2009 WL 116135 (D. Or. April 28, 2009). However, “[p]ublication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people [like] potential competitors or other persons to whom the information would have some economic value.” DVD Copy Control Ass’n, Inc. v. Bunner, 116 Cal. App. 4th 241 (Cal. Ct. App. 2004). Accordingly, courts have determined publication of a trade secret to a court’s electronic public docketing system during a lawsuit is not automatically fatal to the information’s trade secret status. The Equal Rights Center v. Lion Gables Residential Trust, 2010 WL 2483613 (D. Md. June 15, 2010). Gaining access to those public systems is not as simple as searching for the information on Google. HMS Holdings Corp. v. Arendt, 18 N.Y.S. 3d 579 (N.Y. Sup. Ct. Albany Cnty. 2015) (“[I]t does not follow that the inadvertent e-filing of an unredacted document on [the electronic filing system] necessarily constitutes a posting to the Internet that renders the information generally known.”). Therefore, an unsealed filing containing trade secret information is a single, non-dispositive, factor to consider in determining whether the document’s contents remain a trade secret. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999). Courts will construe other factors such as whether the filing was intentional, whether the filer took subsequent actions to protect the information from further disclosure, and whether the information was actually viewed or otherwise disseminated to third-parties. Hurry Fam. Revocable Tr., 2023 WL 23805.

Litigants should not be callous about disclosing trade secret information in the court record because court’s will not always be sympathetic to a litigant who intentionally or unintentionally files trade secret information in the court record. Florida has a strong public policy requiring all state, county, and municipal records to be open for personal inspection by any person. Fla. Stat. § 119.01. Therefore, “a failure to identify trade secret information furnished to a state agency [like the judiciary] as putatively exempt from public disclosure effectively destroys any confidential character it might otherwise have enjoyed as a trade secret.” Sepro Corp. v. Fla. Dep’t of Env’t Prot., 839 So. 2d 781 (Fla. 1st DCA 2003).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.