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Do you have to produce documents in discovery that you believe constitute trade secrets?

Under Florida’s trade secret privilege, 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 assertion of the privilege will not conceal fraud or otherwise work injustice.

However, parties generally do not agree whether documents requested in discovery contain trade secrets. How does a trial court undertake to determine whether the information requested constitutes or contains trade secrets entitled to Florida’s trade secret privilege when faced with a claim that the discovery request seeks the production of protected trade secret information?

The Second District Court of Appeal in the recent case of Lewis Tree Service, Inc. v. Asplundh Tree Expert, LLC 2020 WL 57939751 (Fla. 2d DCA 2020) recently clarified the issue and identified a three-step process for trial courts to undertake.

  1. The trial court will conduct an in camera review of the documents to determine whether they contain trade secret information.
  1. If the trial court determines that the request seeks information subject to the trade secret privilege in the first step, then the court will determine whether the party seeking production can show reasonable necessity for the requested information. The trial court must determine whether the need for producing the documents outweighs the interest in maintaining their confidentiality.
  1. If the trial court determines in the second step that there is a reasonable necessity for the production of trade secret information, the trial court will determine what safeguards, such as a confidentiality order, should be put in place to properly protect that information.

Rosenthal Law Group is here to assist you in maintaining the confidentiality of your trade secrets, even when requested in discovery, and is available to draft confidentiality agreements providing you with maximin protection when disclosure is court-ordered.