A litigant cannot make its own trade secret the centerpiece of its case and then refuse to let the other side examine it. That principle is old, but the Third District Court of Appeal gave it fresh and useful expression on July 29, 2026, in Wall Street Business Academy, Inc. v. SDSol Technologies, LLC, largely denying a certiorari petition that sought to quash an order compelling production of an application's entire source code repository. The case happens to involve software, but its lesson is not confined to code. It reaches any trade secret, a customer list, a pricing methodology, a formula, a compiled dataset, that a party puts in play to prove a claim or resist a counterclaim. The decision usefully consolidates a body of Florida law that every commercial litigator handling proprietary information should have at hand.
The privilege itself is real but qualified. Florida recognizes a statutory trade secret privilege under section 90.506, Florida Statutes, protecting qualifying information defined in the Uniform Trade Secrets Act, section 688.002(4). The privilege is not absolute; it yields, in the statute's own terms, where enforcing it would conceal fraud or otherwise work injustice. The privilege is meant to prevent needless dissemination of genuinely secret material, not to immunize a party from proving the very thing it has asked a court to decide.
The governing framework, which the opinion applies and which merits committing to memory, is the three-step inquiry Florida courts undertake whenever a discovery request draws a trade secret objection. The court first determines whether the material is in fact a trade secret, a step that usually, though not always, calls for in-camera review. If the material qualifies, the court asks whether the requesting party has shown reasonable necessity for production, weighing the need for the material against the interest in confidentiality. If production is ordered, the court must fashion safeguards, ordinarily a confidentiality order, adequate to protect the information. The three steps are sequential, and Florida courts have not hesitated to grant certiorari where a trial court omits the first and compels disclosure without determining trade secret status.
The posture in Wall Street Business Academy is a cautionary study in how a party can defeat its own privilege. The plaintiff sued its developer, contending the developer failed to deliver a suitable source code, which forced the plaintiff to hire in-house developers whose work produced the application now in use. The developer counterclaimed for unpaid work and sought the application's repository to test whether its own pre-termination work product was in fact used to build the code. The plaintiff's own expert then testified that he could not determine whether the developer's work was used without reviewing the underlying code, describing that review as essentially the only way to answer the question. Having conceded that the code was the only path to the dispositive fact, the plaintiff could not credibly withhold it.
That concession is the through-line of the necessity analysis, and it illustrates the broader waiver principle that animates this area. When a party places a trade secret at issue, by suing on it, by grounding its damages in it, or by making it the answer to a contested question, Florida law treats the privilege as substantially compromised. The point has been made pointedly in the misappropriation context, where a plaintiff that sues under the Uniform Trade Secrets Act and thereby places its trade secrets at issue is generally held to have waived the privilege as to the information the litigation exists to resolve. The same logic governs here. The plaintiff offered affidavits swearing the developer's product was not used, but the court held those affidavits could not serve as an impenetrable shield, because treating self-serving, non-adversarial declarations as conclusive would deny the opposing party any means of testing them. A litigant may use its secret as a sword or guard it as a shield, but it cannot do both at once.
The plaintiff's principal appellate argument was procedural, that the trial court skipped step one, proceeding to necessity without conducting an in-camera review or making a trade secret finding. The Third District's answer is the opinion's most transferable holding. It acknowledged the settled line of authority granting certiorari where a court omits the in-camera review, but declined to apply that rule on this record, because neither party had requested such review and both the court and the parties had proceeded on the shared assumption that the code was a trade secret if developed exclusively in-house. On that footing, moving directly to reasonable necessity was within the trial court's discretion. The practical instruction is unambiguous: the in-camera step exists to resolve trade secret status when it is contested, and a party that assumes or concedes that status cannot later resurrect the omitted review as a ground for relief. Counsel who want the protection of step one must affirmatively invoke it.
Where the plaintiff prevailed is the part most worth carrying into your own protective-order practice, and it applies with equal force to any sensitive material, not merely software. The trial court had permitted production of the repository to the developer as an entity, subject to a use restriction. The Third District quashed that aspect, reasoning that the developer is arguably the plaintiff's competitor and that releasing the material to the adversary itself, rather than to its designated expert, creates a palpable and irreparable risk of misappropriation that a bare use restriction cannot cure. The confidentiality step is not satisfied by boilerplate. When the requesting party is a competitor, and the material is live proprietary information, the safeguard must be calibrated to the risk, which ordinarily means an expert-and-counsel-only structure under enforceable undertakings rather than delivery of the secret into the hands of the rival enterprise. The court cited persuasive authority for the proposition that access may be confined to the party's attorneys and experts, who agree to no further disclosure, absent leave of court, with additional protections available at trial.
For litigators, the decision assembles a usable checklist. If you intend to resist production on trade secret grounds, engage the three-step framework affirmatively and request the in-camera determination rather than assuming the court will supply it. Understand that reasonable necessity is difficult to defeat once your own witness has conceded the material must be examined, and think hard before anchoring a claim or a damages theory to information you are unwilling to disclose, because doing so may itself work a waiver. And when production becomes unavoidable, concentrate on the third step, where the durable protection lies, by insisting on expert-and-counsel-only access whenever the requesting party is a competitor.
For clients across industries, not only technology companies, the best advice may be to build secrecy protection before litigation rather than assert it afterward. Contemporaneous documentation of independent development or acquisition, disciplined records that establish provenance, and agreements that anticipate exactly these disputes are worth more than a privilege objection raised mid-discovery. A business that can prove, through its own records, that its proprietary information was developed independently is far better positioned than one compelled to surrender the material itself to an adversary in order to make the same point. And a company contemplating a claim that rests on a trade secret should weigh, at the outset, that pursuing the claim may require exposing the secret to the very party it most wishes to keep it from.
About the Author
Alex P. Rosenthal and Rosenthal Law Group represent clients in commercial litigation and appellate matters throughout Florida. He is also available as a neutral for mediation and arbitration. This article is offered for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship, and it should not be relied upon as a substitute for the advice of qualified counsel regarding the specific facts and circumstances of any particular matter. You may contact our office at 954-384-9200 or www.rosenthalcounsel.com to discuss your matter.