3-Step Process for Objections to Trade Secrets
There are times a party in a litigation may seek documents from a party or non-party and there is a trade secret objection. The party or non-party does not want to produce trade secret information. What a party or non-party should do is request an in camera inspection or an evidentiary hearing.
This was the situation in Bank of America, N.A. v. The Bank of New York Mellon, 47 Fla. L. Weekly D659a (Fla. 3d DCA 2022) where a non-party appealed a trial court’s ruling that required it to produce alleged trade secret information. The non-party timely moved for a petition for writ of certiorari since the disclosure of trade secret information can constitute irreparable harm to that party.
Before a trial court orders the production of trade secret information, it should employ a three-step process:
(1) determine whether the requested production constitutes a trade secret;
(2) if the requested production constitutes a trade secret, determine whether there is a reasonable necessity for production; and
(3) if production is ordered, the trial court must set forth its findings.
Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804, 807-08 (Fla. 3d DCA 2014).
As to the first step, this is the step where the trial court may conduct the in camera inspection or evidentiary hearing. Id. When dealing with a trade secret objection, the objecting party should object and request an in camera inspection or evidentiary hearing from the onset so the trial court can make appropriate findings and protective safeguards of disclosed information. “[I]n the context of an objection to the production of trade secrets, the onus remains on the proponent of the evidentiary hearing to raise the issue with the court in the first instance, or risk waiving such argument.” Bank of America, supra.
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