3-Step Process to Determine Production of Document under Trade Secret Privilege
During the discovery phase of litigation, a party will serve a request for documents on the opposing party. The request for documents will include numerous categories of documents. The responding party will then identify whether it will produce the documents or whether it will not due to a privilege or another legal objection. A hearing will then need to be conducted to determine the merits of the privilege or objection.
One such privilege a party may raise is that the requested documents fall within the trade secret privilege. Such documents would be itemized on a privilege log and would identify trade secret as the basis for withholding the document from production.
A recent case, Lewis Tree Service, Inc. v. Asplundh Tree Service, LLC, 45 Fla. L. Weekly D2228b (Fla. 2d DCA 2020), contains a good discussion as to how a trial court is to resolve a trade secret privilege per a three-step process.
First, an in camera inspection of the documents will need to be conducted by the trial court if the parties dispute that the documents constitute a trade secret privilege. If the parties do not dispute the application of the trade secrete privilege, an in camera inspection will not need to be conducted. From a practical standpoint, it can be assumed the parties will dispute the application of the trade secret privilege.
Second, if the trial court determines the documents do fall within the trade secret privilege, the court will then determine “whether the party seeking production can show reasonable necessity for the requested information [which] requires a trial court to decide whether the need for producing the documents outweighs the interest in maintaining their confidentiality.” Lewis Tree Service, supra (quotations and citations omitted).
Third, if the trial court determines the documents do fall within the trade secret privilege and constitute a reasonable necessity, the court must then determine “what safeguards, such as a confidentiality order, should be put in place to properly protect that information.” Lewis Tree Service, supra.
In Lewis Tree Service, the trial court did not comply with this three-step process and did not conduct an in camera inspection. The trial court ordered the production of documents and the party required to produce the documentation filed an appeal – a petition for a writ of certiorari. “Certiorari is particularly appropriate for ‘cat out of the bag’ discovery orders that would require the disclosure of information that is privileged or otherwise protected from disclosure.” Lewis Tree Service, supra. The appellate court granted the petition for certiorari mandating the trial court follow the three-step process beginning with the in camera inspection.
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