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ProveMyFloridaCase.com > Articles posted by David Adelstein (Page 14)

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...

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57.105 Motion for Sanctions

In prior postings, I discussed Florida Statute s. 57.105, which provides a statutory basis to serve a motion to seek attorney’s fees against another party (and even their counsel) if they are pursuing frivolous (bad faith) claims, motions, or defenses, or taking action for purposes of unreasonable delay.   While this is not a motion I personally like to file, the recent Third District Court of Appeal’s opinion in Lanson v. Reid, 45 Fla. L. Weekly D2479a (Fla. 3d DCA 2020), discusses two important aspects of what is commonly known as a 57.105 motion for sanctions.  Any party considering this type...

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Loss of Future Earning Capacity Damages Must be Proven with Reasonable Degree of Certainty

Loss of future earning capacity can be a difficult damage to recover because of what is seen as the inherent speculativeness of this damages category.  Economic damages need to be proven with a reasonable degree of certainty and this can become challenging when dealing loss of future earning capacity damages, especially if the person has no earning capacity or no earning capacity in the area they are claiming they lost future earnings.   Importantly, how do you establish with a reasonable degree of certainty the diminished earning capacity and, then, what that figure should be? This difficulty be seen in a recent...

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Declaration Cannot Take Away Common Elements in a Condominium

The recent case of IconBrickell Condominium No. Three Association, Inc. v. New Media Consulting, LLC, 45 Fla. L. Weekly D2272a (Fla. 3d DCA 2020) is an interesting case discussing the common elements of a condominium where the trial court, affirmed by the appellate court, found that the Declaration governing a condominium violates Florida’s Condominium Act (Florida Statutes Chapter 718) because it “impermissibly divested residential unit owners of their undivided share in the common elements of the condominium.”   Because the Declaration took away common elements from residential unit owners, it was determined that doing so was contrary to the law. The...

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Dealing with a Choice of Law Issue?

Do you have a “choice of law” issue?  In other words, does your contract require you to apply Delaware law (or the law of another state) but you will be filing your lawsuit in Florida?  In this case, how do you know when to apply the law of another state versus Florida law? The answer depends on whether dealing with a substantive versus procedural issue: When dealing with choice of law matters, Florida adheres to a distinction between substantive and procedural matters. Siegel v. Novak, 920 So. 2d 89, 93 (Fla. 4th DCA 2006); Aerovias Nacionales De Colombia, S.A. v. Tellez, 596 So....

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Properly Alleging a Trade Secret Misappropriation Claim under Florida Law

Is there a cause of action for trade secret misappropriation?  Why, why, yes there is under Florida’s Uniform Trade Secret Act, known as “FUTSA”,  included in Florida Statute s. 688.001 en seq.  FUTSA defines the terms “trade secret” and “misappropriation” as not everything a person claims to be a trade secret is, indeed, a trade secret.  Understanding the statutory definitions to “trade secret” and “misappropriation” are important if a party is looking to pursue a claim against another under FUTSA. To successfully state a cause of action under FUTSA, a plaintiff must [identify the trade secrets with reasonable particularity and] allege...

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Statutory Construction – What does the Statute Mean?

What does this statute mean?  As an example of a statute saying what it says and meaning what it means, Florida Statute s. 95.11 (5)(b) provides that there is a one-year statute of limitations for “[a]n action to enforce an equitable lien arising from the furnishing of labor, services, or material for the improvement of real property.” In a recent case, Gabriji, LLC v. Hollywood East, LLC, 45 Fla. L. Weekly D2251a (Fla. 4th DCA 2020), an issue was whether the one-year statute of limitations applied to equitable liens outside the context of “furnishing of labor, services, or material for the...

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Admissibility of Text Messages

In today’s world, we text.  We text a lot!  In many instances, we text more than we e-mail or talk on the phone to a specific person. At trial, no different than letters or e-mails, texts need to be authenticated for purposes of admissibility.  If you want to use text messages at trial, you need to authenticate those texts. In Walker v. Harley-Anderson, 45 Fla. L. Weekly D2116a (Fla. 4th DCA 2020), the sole issue in this appeal was the admissibility of text messages.  This case involved an injunction to prevent stalking.  The petitioner moving for the injunction claimed the respondent...

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Personal Jurisdiction and Florida Court’s Two-Prong Analysis

When a defendant is sued, a court needs to have personal jurisdiction over that party.  It is a due process consideration to ensure the court has authority over that party.  A court’s ruling as to personal jurisdiction over a party will give a right to an immediate appeal.  The issue of personal jurisdiction is generally confronted when the defendant is a foreign person or company, i.e., not operating in Florida, being sued in Florida.  Making the decision to sue a foreign person or company in Florida needs to consider personal jurisdiction including the appellate right associated with a court's ruling on...

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Yes, Lawsuits are an Inconvenience, but this does NOT Mean You get Inconvenience Damages

Lawsuits are an inconvenience.  They just are--no doubt about it.  You have to devote time and resources, both of which you would prefer to allocate to another endeavor.  However, while your time is valuable, this does NOT mean you can recover an inconvenience factor associated with your lawsuit.   In a recent case, P&G Trucking of Brandon, Inc. v. Riverland Hedging & Topping, Inc., 45 Fla. L. Weekly D2023a (Fla. 4th DCA 2020), a truck struck and damaged a tractor and citrus topper.  The owner of this damaged machinery sued in negligence for property damage in addition to its lost profits,...

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