Florida Business Litigation: “Keeping Trade Secrets Secret”—Part 2: Protecting Your Trade Secrets

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Florida Business Litigation: “Keeping Trade Secrets Secret”—Part 2: Protecting Your Trade Secrets

March 5, 2018

By: The Carlin Law Firm, PLLC

In my last article, “Keeping Trade Secrets Secret”—Part 1: Identifying Your Trade Secrets, I shared how important it is for a business, regardless of its size, to identify (and protect) those trade secrets that make the business special and unique.  However, identifying your business’s trade secrets is only the first step in protecting your business from becoming a victim of trade secret theft. 

Tip 2: Develop a Pro-Active Plan to Keep Your Business’s Trade Secrets Secret

Florida’s Uniform Trade Secrets Act, and the Florida appellate court decisions construing the Act, clarify that a business’s mere identification of a purported trade secret is not enough to afford the information protection under Florida law as a trade secret.  Specifically, the information must be “the subject of efforts that are reasonable under the circumstances.”  See § 688.002(4)(b), Fla. Stat. (2017).  So, what exactly constitutes “efforts that are reasonable under the circumstances”?

Information will more likely be given protection as a trade secret if the information is: (1) not known outside of the business; (2) known only by employees and others necessarily involved in the business; and (3) is difficult for others outside of the business to acquire or duplicate independently.  See M.C. Dean, Inc. v. City of Miami Beach, Florida, 199 F.Supp.3d 1349 (S.D. Fla. 2016) (“Disclosing the information to others who are under no obligation to protect the confidentiality of the information defeats any claim that the information is a trade secret.”) (internal citations omitted).

For trade secrets identified on or in physical documents, those documents should be stored in a locked file cabinet, with limited access, and all disbursed copies of any of these documents should be marked as “confidential” and, when necessary, redacted.  See Sepro Corp. v. Florida Dept. of Environmental Protection, 839 So.2d 781 (Fla. 1st DCA 2003) (“[F]ailure to identify information furnished to a state agency as [confidential] effectively destroys any confidential character it might otherwise have enjoyed as a trade secret.”).

The same goes with trade secrets stored electronically: Limit the accessibility to those files to only the necessary executives and employees.  See Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 237 F.Supp.3d 1230 (M.D. Fla. 2017) (denying protection to a boat manufacturer after a disgruntled employee downloaded hundreds of files on his last day because the employer allowed the employee to keep the information on his personal laptop, and never requested he delete it).

Finally, proper employee training is vital when seeking to protect your business’s trade secrets.  Employees, with no perceived stake in your business’s success (or failure), may never fully understand how important your trade secrets are to your business.  Thus, it is incumbent on the employer to identify exactly what is confidential.  Additionally, when hiring a new employee, the business should require the employee to sign a non-disclosure agreement barring him or her from sharing any of the business’s confidential information while employed, and thereafter.

As shown above, there are several ways to protect your business’s trade secrets.  Whether you’re seeking to proactively secure your trade secrets or to recover damages for (or the return of) trade secrets that have already been stolen, contact a Fort Lauderdale business litigation lawyer at (954) 440-0901 to assist you with protecting your trade secrets and proprietary information.  The Fort Lauderdale business lawyers at The Carlin Law Firm, PLLC regularly represents employers and businesses with prosecuting and defending theft of trade secret claims in both state and federal courts.

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