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When a party appeals a court order before the conclusion of the case, the appellate court’s decision on the questions of law presented on appeal governs how the trial court decides those questions of law throughout all subsequent stages of the lawsuit. This concept is known as the “law of the case” doctrine. The law of the case can have a substantial impact the ultimate outcome in business litigation, because a party cannot relitigate a legal issue already decided by the appellate court. Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

One example of this circumstance occurred in the case of Specialty Restaurants Corp. v. Elliott, 924 So. 2d 834 (Fla. 2d DCA 2005). The appellate court affirmed a summary judgment in favor of Specialty Restaurants Corporation (“SRC”) as to all claims brought by Mike Elliott and Mike Elliott & Company (collectively the “Elliotts”). SRC filed a motion seeking appellate attorney’s fees and costs based on its proposal for settlement. A proposal for settlement is a tactic used in business litigation that consists of a written settlement offer which if not accepted can make the opposing party responsible for its attorney’s fees if the monetary outcome of the case is within a specific range of the offer. The Elliotts opposed SRC’s motion for appellate attorney’s fees but did not challenge the legal sufficiency of the proposal for settlement. The appellate court granted SRC’s motion for appellate attorney’s fees based on the unchallenged proposal for settlement.  On remand, the trial court initially determined that SRC was entitled to attorney’s fees and costs for both the trial court and on appeal based on the proposal for settlement. Before the trial court could decide the amount of attorney’s fees and costs to be awarded, the Elliotts filed a motion to reconsider, contending for the first time that the proposal for settlement was legally insufficient.  The trial court entered an order vacating the portion of the order that determined entitlement pursuant to the proposal for settlement. SRC immediately appealed.

The appellate court held that its prior order awarding appellate attorney’s fees found that SRC was entitled to attorney’s fees under the proposal for settlement and that this ruling became the law of the case on the issue of the enforceability of that proposal for settlement. In business litigation, the law of the case doctrine includes not only issues explicitly ruled upon by the court, but also those issues which were implicitly addressed or necessarily considered by the appellate court’s decision. The appellate court held that by awarding fees pursuant to the proposal for settlement, the appellate court necessarily determined the legal sufficiency of the proposal for settlement, and that determination of legal sufficiency was binding on the trial court in any subsequent proceedings. “[W]hatever is once established between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case….” Specialty Restaurants Corp. v. Elliott, supra.

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Companies often hire experienced sales and business development professionals to expand their business. A non-solicitation provision in an employment contract is intended to prevent post-termination solicitation of clients with whom the business has substantial relationships. When an employee brings clients to a company, it is important to distinguish whether the employee had a prior business or personal relationship with the client, and whether it is part of the employee’s job to develop and maintain client relationships. Peter Mavrick is a Fort Lauderdale non-compete attorney, and also advocates for clients in Palm Beach, Boca Raton, and Miami, Florida. The Mavrick Law Firm represents clients in breach of contract litigation, trade secret litigation, non-compete agreement litigation,  employment litigationtrademark litigation, and other legal disputes in federal and state courts and in arbitration.

In the case of Hilb Rogal & Hobbs of Florida, Inc. v. Grimmel, 48 So. 3d 957 (Fla. 4th DCA 2010), Hilb Rogal & Hobbs of Florida, Inc. (HRH) was an insurance broker who hired Mark Grimmel (Grimmel) as a producer to service its existing customers and to generate new customers. Grimmel signed an employment agreement with HRH, which included a non-piracy clause that prohibited Grimmel from soliciting HRH’s customers following termination of his employment. Four years after Grimmel resigned to operate his own competing insurance brokerage firm, Egis Insurance Advisors (Egis).

HRH filed a lawsuit for injunctive relief and damages against Grimmel and Egis. HRH alleged that Grimmel violated the non-piracy covenant in his employment agreement with HRH by misappropriating business from HRH to Egis. HRH also filed an emergency motion for a temporary injunction, requesting that the court prohibit Grimmel from soliciting, accepting business from, and continuing to do business with HRH’s customers. Also, HRH sought to enjoin Grimmel from using confidential or trade secret information. HRH obtained an ex-parte order (made without the other party’s awareness) granting a temporary injunction against Grimmel and posted a bond. Grimmel moved to dissolve the injunction and a hearing was held before a magistrate. The magistrate issued a Report and Recommendation proposing that the temporary injunction be dissolved. HRH filed its exceptions to the general magistrate’s report and requested a hearing. The trial court held a hearing and entered an order denying HRH’s exceptions, granting the motion to dissolve the temporary injunction, and ratifying and approving the general magistrate’s Report and Recommendation. HRH immediately appealed.

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Distinguishing between a franchise relationship and an agency relationship can be difficult in a jury trial. A jury deciding may need to understand the difference between them in business litigation. The two relationships are distinguishable. In a franchise relationship, the franchisor and franchisee are separate businesses. The franchisor licenses its business’ trademark(s) and operating system to a franchisee, in exchange for the franchisee’s agreement to run its business according to the franchisor’s standards and control. In an agency relationship, the agent acts as an extension of the principal as though it were the principal. Florida’s standard jury instruction on agency may be too general to account for contract provisions in a franchise agreement which are intended to protect the franchisor from liability for the negligent acts of the franchisee. Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

This dilemma occurred in the recent case of Domino’s Pizza, LLC v. Wiederhold, 5D19-2343, 2020 WL 6219551 (Fla. 5th DCA Oct. 23, 2020), where a motorist filed a lawsuit against restaurant franchisor, franchisee, and franchisee employee for injuries sustained when the motorist swerved to attempt to avoid the employee’s vehicle, and lost control of vehicle and eventually resulting in the motorist’s death. Yvonne Wiederhold (Wiederhold), the motorist’s wife and personal representative of his estate, asserted a wrongful death claim. After a jury trial, trial court denied franchisor’s motion for directed verdict and entered judgment on jury’s verdict for the motorist’s estate, and then denied franchisor’s post-trial motions for judgment notwithstanding the verdict or in alternative for new trial. Franchisor immediately appealed.

The appellate court held that Wiederhold offered substantial evidence that supported her position that franchisor was liable because its control over the franchisee, and its employee, went beyond brand maintenance or franchise support. The evidence showed that the franchisor controlled the day-to-day affairs of the franchise in the making and delivery of pizza. Wiederhold presented the Franchise Agreement and Manager’s Reference Guide, as well as witness testimony that the franchisee acted as an agent of franchisor. Franchisor argued that the Franchise agreement specifically referred to the franchisee as an independent contractor and contained exculpatory clauses to avoid legal liability for store operations, with which the franchisee was obligated to be in full compliance. The Franchise Agreement also required the franchisee to carry liability insurance that listed the franchisor as an additional insured. Deliveries could only be performed as authorized in the strict instructions of the Franchise Agreement.

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Parties who seek the forensic examination of a personal electronic device (like a computer, tablet or mobile phone) during business litigation need to address the other party’s privacy concerns. A forensic image, otherwise known as a “mirror image” will “replicate bit for bit sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive.” Bennett v. Martin, 186 Ohio App.3d 412, 928 N.E.2d 763 (10th District, 2009). A mirror image “contains all the information in the computer, including embedded, residual, and deleted data.” Bennett v. Martin. Courts balance whether the need for forensic examination is proportional to the needs of the case or to the other party’s privacy concerns. Ramos v. Hopele of Ft. Lauderdale, Ltd. Liab. Co., No. 17-cv-62100, 2018 WL 1383188 (S.D. Fla. 2018). Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Electronically stored information (ESI) is discoverable under Rule 34(a) of the Federal Rules of Civil Procedure. Deleted computer files, whether e-mails or otherwise, are likewise discoverable. Bank of Mongolia v. M&P Global Fin. Servs., 258 F.R.D. 514 (S.D. Fla. 2009). “Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought has no possible bearing on the subject matter of the action.” Devries v. Morgan Stanley & Co. LLC, No. 12-cv-81223, 2015 WL 1623928 (S.D. Fla. 2015). Florida courts have “long held that relevance for discovery purposes is much broader than relevance for trial purposes.” Dunkin’ Donuts, Inc. v. Mary’s Donuts, Inc., No. 01-cv-0393, 2001 WL 34079319 (S.D. Fla. 2001). Parties will often resist conducting a search of computer systems for the information requested during business litigation. The party producing documents, however, has an obligation to search available systems for the information demand. Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681 (S.D. Fla. 2012).

In the case of Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., plaintiffs served their response to a request for production of documents nearly three months after they were served. Before the responses were served, plaintiffs sent correspondence to Defendant claiming to be “diligently working on the electronic material” and requested more time. Defendant later learned that no effort was made to retrieve any ESI from plaintiffs’ computers. Plaintiffs’ response objected to every request for electronic discovery as unreasonably duplicative as well as expensive and burdensome “taking into account the needs of the case, the amount in controversy, the Plaintiff’s resources as non-profit condominium associations and the lack of value of the electronic discovery in resolving the issues.” The trial court found that the plaintiffs’ response to defendant’s request for production was untimely. Courts will take into account the fact that a party in business litigation took no action to locate the requested ESI until faced with a motion to compel. The trial court held that plaintiffs did not demonstrate good cause for their late response, so their objections were deemed waived. The trial court found that even if plaintiffs’ objections were timely, their objections that the ESI was duplicative and unduly burdensome in light of the needs of the case was unsupported by the evidence presented. Plaintiffs testified that not all of its ESI would necessarily be found in hard copy format. Plaintiffs had no policy in place for generating hard copies of e-mails between employees, or any e-mail policy whatsoever. Because there was evidence of an unusually large amount of document shredding, some of which may have been unauthorized by plaintiffs’ CFO, there was at least the possibility that hard copy evidence germane to the lawsuit may have been destroyed. The evidence, therefore, would not otherwise be available to the Defendant absent access to ESI stored in Plaintiffs’ computer systems.

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When the wording of a contractual provision is confusing or ambiguous, courts must interpret the contract in a rational manner. Some examples of vague contractual provisions include, “during business hours” and time frames with no clear anchor date, i.e. “within six months of commencement.” The courts generally agree that where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner. American Med. Int’l, Inc. v. Scheller, 462 So.2d 1 (Fla. 4th DCA 1984). Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

In the case of BKD Twenty-One Mgmt. Co. v. Delsordo, the appellate court addressed the interpretation of a lease agreement.  At the center of the business litigation was a dispute over the meaning of the term “Establishment.” The plaintiff contended that the term “Establishment” meant “ruling class” or “controlling group” and therefore referred to “the folks running the retirement community.” The defendants contended that “Establishment” meant “place of business.” The appellate court agree with the defendants’ interpretation. BKD Twenty-One Mgmt. Co. v. Delsordo held that “…where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner.” The appellate court held that in the context of a commercial lease agreement, the term “Establishment” necessarily meant “an institution or place of business.” Even though there are other definitions of the term “establishment,” the appellate court found that none of those alternative definitions would make sense in for a lease agreement concerning a business. Courts must consider the contractual provision within the context of the overall contract.  The appellate court rejected plaintiff’s argument that the capitalization of the term “Establishment” in the lease meant that the term was referring to a “ruling class” or “the folks running the retirement community.” There were many key terms in the lease were capitalized, so the appellate court held that the capitalization of the term Establishment in the contract did not mean that the contract was referring to the “ruling class.”

“A true ambiguity does not exist merely because a contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and absurd interpretations of plain language are always possible.” American Med. Int’l, Inc. v. Scheller. It is the duty of the trial court presiding over business litigation to prevent such interpretations. For example, in the case of Sorota v. Belmat, Inc., 819 So. 2d 975 (Fla. 4th DCA 2002), the contract stated that the tenant was responsible for paying the utilities it uses in connection with the leased premises, but only its pro-rata share of those charges. The appellate court held that though it was not spelled out in the agreement, it was clear that by “pro-rata share” of the bill, the drafters intended that the tenant pay only for those utilities it actually used. The appellate court concluded that no other interpretation would make sense. Sorota v. Belmat, Inc. held that “contracts should be interpreted so as to avoid an absurd result.”

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Court appointment of a provisional director to a corporate entity is a remedy that recently became available in business litigation.  Where corporate deadlock exists, a court has discretion to appoint a provisional director to a corporate entity “if it appears that such action by the court will remedy a situation in which the directors are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock.” Fla. Stat. § 607.0749.  Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, 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 ‘deadlock’ . . . is a standstill—a state of inaction or of neutralization caused by the opposition of persons or of factions.”  Kertesz v. Spa Floral, LLC, 994 So. 2d 473 (Fla. 3d DCA 2008). In other words, a deadlock occurs when a company’s board of directors cannot move forward in its business operations because it does not have the necessary number of directors break a tie vote. Corporate bylaws often have remedies for breaking a deadlock, however, the deadlock remains when those remedies are ineffective.  Even without a vacancy on the company’s board of directors, the court can appoint a provisional director, who will have all the rights and powers of a duly elected director, including the right to notice of and to vote at meetings of directors. The court appointed provisional director “shall be an impartial person who is neither a shareholder nor a creditor of the corporation or of any subsidiary or affiliate of the corporation, and whose further qualifications, if any, may be determined by the court.”  Kertesz v. Spa Floral, LLC. Companies in business litigation often cannot overcome a deadlock because its board members are acting out of self-interest rather than for the best interest of the company.

While the provisional director is appointed to help the company break the deadlock, he or she is an officer of the court and will report to the court from time to time concerning the matter complained of, or the status of the deadlock, if any, and of the status of the corporation’s business, as the court shall direct.  Section 607.0749, Florida Statutes, is relatively new legislation.  Its underlying concept, however, has longstanding ties in courts of equity.  The inherent authority granted to the Court by this new section is, on many levels, similar to a court’s ability to appoint a receiver over a corporate entity in business litigation when certain criteria are satisfied.  A receiver generally takes control of the company that is in distress for purposes of winding up business operations, collecting debts owed to the company, liquidating property and assets, paying creditors, and distributing the remaining proceedings to the shareholders.

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An exculpatory clause is a contract provision that is often raised in business litigation. The purpose of an exculpatory clause is to relieve one party of liability if damages are caused during the execution of the contract. Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away. Fuentes v. Owen, 310 So.2d 458 (Fla. 3d DCA 1975). Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

In the case of Orkin Exterminating Company v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978), Florida’s Fourth District Court of Appeal held that a homeowner was entitled to recover for termite damages from an exterminating company despite the fact that the homeowner had signed a contract containing an exculpatory clause limiting the exterminating company’s damages liability. The appellate court determined that the exculpatory clause was ambiguous on its face because it provided for two different guarantees (a “total protection” guarantee and a guarantee limited to retreatment only) and did not differentiate as to which guarantee was applicable. Florida courts in business litigation have frequently recognized that exculpatory clauses are not favored in the law. Florida courts strictly construe the clauses against the party claiming to be relieved of liability. Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So. 2d 628 (Fla. 1st DCA 1991). Orkin Exterminating Company v. Montagano held that “because we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses.”

The Third District Court of Appeals in the case of Michel v. Merrill Stevens Dry Dock Co., 554 So. 2d 593, 595 (Fla. 3rd DCA 1989), relied on the ruling in Orkin Exterminating Company v. Montagano and found that Merrill Stevens’ exculpatory clause was ambiguous because the wording purported to absolve Merrill Stevens of all liability for its negligence and breach of contract in the first sentence of the clause, and yet, in the second sentence, stated that Merrill Stevens’ potential liability for negligence and/or breach of contract was not to exceed $300,000.  The appellate court held that by limiting negligence and breach of contract claims to $300,000, Merrill Stevens tacitly acknowledged that such liability may have existed in addition to liability for gross negligence. The appellate court held that this provision may have potentially misled ship owners by affording them a false sense of protection in the event of negligence. Courts in business litigation look to the intent of the parties to interpret contract provisions. The inconsistent wording contained in the exculpatory clause which Merrill Stevens drafted did not clearly express exculpatory intent for breach of contract and therefore did not absolve Merrill Stevens from liability under these theories. The appellate court reversed the trial court’s summary judgment in favor of Merrill Stevens on the issue of liability for negligence and breach of contract.

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Company websites often play a vital role in business litigation, both as a source of biographical and background information, as well as intellectual property disputes. Some lawsuits involve content that was displayed on the website at one point in time but is no longer available. A resourceful method of obtaining records of historical website content is the Internet Archive’s Wayback Machine. The Wayback Machine is a webcrawler (search engine) that searches out and records website content. Internet Archive’s webcrawler records have been recognized by several courts as a reliable and accurate source. Several courts have taken judicial notice of Internet Archive’s records to resolve controversies when the parties dispute what a public website stated historically. Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Courts generally treat the Internet Archive’s records differently than records collected from other websites. “[T]he federal courts have recognized that Internet archive services, although representing a relatively new source of information, have sufficient indicia of reliability to support introduction of their contents into evidence, subject to challenge at trial for authenticity.” Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384 (W.D. Mich. Oct. 31, 2011).  A federal court described the Wayback Machine:

The third party donating the material is an automated software program that is designed to capture the information on a website as it appeared on the date the crawler visited it. The crawler does not exercise any “decisionmaking” power as to what will be preserved but simply takes a snapshot of a website at a particular point in time. If the crawler had the discretion to alter the impression it captured of a website, the Wayback Machine would defeat its own purpose of archiving images on the Internet.

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This article is the second of a two-part series concerning the enforcement of noncompete agreements when the former employee claims that his former employer engaged in illegal conduct.  Part I explored the enforceability of contracts which contain illegal terms.  This, Part II, addresses how allegations of illegal conduct can affect noncompete agreements particularly.  As shown below, illegal conduct does not negate the enforcement of a noncompete agreement when unless the “legitimate business interest” supporting the noncompete agreement was illegal or there was a sufficient public policy reason to not enforce the noncompete agreement.  Peter Mavrick is a Fort Lauderdale non-compete attorney, and also advocates for clients in Palm Beach, Boca Raton, and Miami, Florida. The Mavrick Law Firm represents clients in breach of contract litigation, trade secret litigation, non-compete agreement litigation,  employment litigationtrademark litigation, and other legal disputes in federal and state courts and in arbitration.

Noncompete agreements are contracts and are affected by all of the general principles of contract law.  However, noncompete agreements are a unique type of contract which has special provisions governing it.  Generally, noncompete agreements are unlawful unless they comply with the requirements listed in § 542.335, Florida Statutes.  Particularly, a “person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.”  § 542.335(b), Florida Statutes.  The statute specifically describes that “trade secrets,” “valuable confidential business […] information,” “substantial relationships with specific prospective or existing customers,” “customer […] goodwill” associated with the sale of a business or a particular geographical or market area,” and “extraordinary or specialized training.”  § 542.335 (1)-(5), Florida Statutes.  While the vast majority of cases involve these particular categories of “legitimate business interests,” courts will consider other types of legitimate business interests which are not listed.  White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 226 So.3d 774 (Fla. 2017) (holding that referral sources may be legitimate business interests even though they are not listed in § 542.335).

The phrase “legitimate business interest” may sound as if the business seeking to enforce the noncompete agreement must be a “legitimate business.”  This is not the way that the statute is worded nor how cases interpret it.  Instead, the concern is whether there is a legitimate business interest in enforcement of the noncompete, specifically.  § 542.335(c), Florida Statutes (“A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction”).

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There are circumstances when a business, who is not a party to a lawsuit, will be required to disclose its trade secret information to respond to a subpoena. Florida law provides safeguards for that disclosure to be made in a manner that still protects the business’ trade secrets. However, a business may need to vigorously defend those rights when the trial court refuses to do so. Peter Mavrick is a Fort Lauderdale trade secret attorney, and also advocates for clients in Miami, Boca Raton, and Palm Beach, Florida.  Mavrick Law Firm also represents clients in breach of contract litigation, non-compete agreement litigation and injunction proceedings,  business litigation , trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

An example of this occurred in the case of Columbia Hosp. (Palm Beaches) Limited Partnership v. Hasson, 33 So. 3d 148 (Fla. 4th DCA 2010), where the plaintiff filed a motor vehicle negligence lawsuit and claimed to have incurred injuries and expenses for a procedure performed at Columbia Hosp. (Palm Beaches) Limited Partnership (Columbia). Defendants served Columbia, a non-party to the lawsuit, with a subpoena requesting documents relating to the particular medical procedure performed on plaintiff. The documents requested by the subpoena included the amounts Columbia charged patients with and without insurance, those with letters of protection, and differences in billing for litigation patients versus non-litigation patients.

Columbia filed a motion for protective order and contended that the information requested by defendants’ subpoena was confidential and amounted to protected trade secrets under Florida law. Defendants conceded that the information sought was protected as trade secrets, however they explained why the information they sought was relevant to, among other things, to the reasonableness of the hospital’s bills. At the hearing on the motion for protective order, defendants contended that the discovery of a hospital’s charges, discounts to different classes of patients, and its internal cost structure was relevant information. Defendants further contended that the amounts a health care provider accepts as payment from private non-litigation payors was relevant for a jury to determine what amount was a reasonable charge for the procedure.

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