FLORIDA TRADE SECRET LAW: MISAPPROPRIATION AND BURDEN OF PROOF UNDER FLORIDA’S UNIFORM TRADE SECRETS ACT

To have legal recourse for the misappropriation of a trade secret under Florida law, a plaintiff must: (1) prove the existence of a trade secret; (2) prove that it took reasonable measures to protect the trade secret; and (3) demonstrate that the trade secret was misappropriated. See Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271 (S.D. Fla. 2001). The Florida Uniform Trade Secrets Act (the “Act”) protects a party’s trade secrets from “misappropriations.” Section 688.002 of the Act defines misappropriation as:

(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(b) Disclosure or use of a trade secret of another without express or implied consent by a person who:

1. Used improper means to acquire knowledge of the trade secret; or
2. At the time of disclosure or use, knew or had reason to know that her or his knowledge of the trade secret was:
3. Derived from or through a person who had utilized improper means to acquire it;
4. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
5. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
6. Before a material change of her or his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

However, the Act protects trade secrets from misappropriation only if a plaintiff can prove that the trade secrets are valuable to the owner and that the owner took reasonable steps to maintain the secrecy of the trade secrets. Thus, as long as an owner is taking the appropriate steps to protect its trade secrets, the Act will prohibit the misappropriation of the trade secret and, when necessary, compensate an injured party. See Del Monte Fresh Produce Co., 136 F. Supp. 2d at 1291. If your business is accused of trade secret misappropriation or you believe that your business’ trade secrets were misappropriated, Peter Mavrick is a Fort Lauderdale trade secret litigation lawyer who has substantial experience in this specialized area of practice.

To receive relief from the Act, plaintiffs must prove that the trade secrets exist and that they were accorded the level of protection befitting their status as trade secrets. Accordingly, courts have held that the “determination of trade secret [status is] ‘heavily fact-specific.’” Florida’s Fifth District Court of Appeals in All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So. 2d 363, 368 (Fla. 5th DCA 1999), explained that the plaintiff must be prepared to prove that their “information, formula, pattern, compilation, program, device, method, technique, or process” meets the standard for protection as a trade secret. See section 688.002, Florida Statutes; see generally Sethscot Collection, Inc. v. Drbul, 669 So. 2d 1076 (Fla. 3d DCA 1996) (clothing retailer’s prospective customer list of fraternities and sororities was not trade secret because list was compiled from information readily ascertainable to public). Once a plaintiff proves the existence of a trade secret, the plaintiff also bears the legal burden to prove that it took reasonable steps to protect the information. See M.C. Dean, Inc. v. City of Miami Beach, Florida, 199 F. Supp. 3d 1349 (S.D. Fla. 2016) (plaintiff failed to prove that it took reasonable steps to protect its trade secret). Finally, after proving the existence of a trade secret and proving that it took reasonable steps to protect its trade secret, the plaintiff must prove that actual misappropriation took place. Peter Mavrick is a Fort Lauderdale trade secret attorney who has substantial experience defending against trade secret lawsuits as well as securing relief for parties whose trade secrets were misappropriated in Florida.

The Mavrick Law Firm represents business in Broward, Miami-Dade, Palm Beach, Collier, Lee, and Sarasota Counties in many areas of business litigation, including trade secret, unfair competition, non-compete, contract, and business tort litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.