Florida Business Litigation: “Keeping Trade Secrets Secret”—Part 3: Enforcement of Trade Secret Rights

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Florida Business Litigation: “Keeping Trade Secrets Secret”—Part 3: Enforcement of Trade Secret Rights

April 19, 2018

By: The Carlin Law Firm, PLLC

In my recent articles, I provided a general overview of the laws of Florida that govern the protection of trade secrets.  Part I of this series began by discussing what a trade secret is, and how to identify it, while Part II discussed strategies for keeping those trade secrets secret.  Nevertheless, the question must be asked: What happens when, despite your best efforts, your trade secrets are stolen?  Accordingly, Part III of this series will discuss enforcement of trade secret ownership rights, i.e., what to do when your trade secrets have been stolen.

Tip 3: Take Immediate Action by Seeking Judicial Relief

When your trade secrets are stolen, it is of the utmost importance that you take immediate action.  If you have to seek relief through the court system, even the slightest delay may suggest to the court that the trade secret you seek to protect is, in fact, not that important (or, for that matter, secretive) and, thus, undeserving of protection under Florida’s Uniform Trade Secrets ActSee Levenger Co. v. Feldman, 516 F.Supp.2d 1272 (S.D. Fla. 2007) and American Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407 (Fla. 1998), requiring that a plaintiff not only describe with “reasonable particularity” the trade secret that it seeks to protect, but also the reasonable steps taken to protect the secrecy of the trade secret.  Additionally, it is important that you seek counsel from an experienced Fort Lauderdale trade secrets lawyer because, as Florida appellate courts have recently concluded, a lack of reasonable efforts by an attorney in protecting your trade secret during judicial discovery may result in a court denying the secret protection under Florida law.  See Keller v. Florida Software Sys., Inc., 42 Fla. L. Weekly D2523 (Fla. 2d DCA Nov. 29, 2017) (observing that, following an appropriate objection claiming protection of a trade secret, a trial court must decide if the information is in fact a trade secret; if so, the burden then shifts to the requesting party to assert why disclosure of the information is “reasonably necessary”); accord Niagara Indus., Inc. v. Giaquinto Elec., LLC, 42 Fla. L. Weekly D2576 (Fla. 4th DCA Dec. 6, 2017).

As an initial action, a mere (yet convincing) cease and desist demand letter may quickly rectify the issue.  At the very least, a demand letter would be evidence to use in any future judicial proceedings, showing that you took immediate action to protect the information that you now seek for the court to protect.  And, if you do find yourself seeking injunctive relief through the court system, do not forget to ask for the return of your attorney’s fees and, in some instances involving “willful and malicious” actions, exemplary (or punitive) damages, in addition to the monetary damages you have suffered (i.e., the profits derived from your trade secret).  See § 688.004(1), Fla. Stat. (allowing compensatory damages); § 688.005, Fla. Stat. (allowing attorney’s fees); § 688.004(2), Fla. Stat. (allowing exemplary damages where there has been “willful and malicious misappropriation” of trade secrets).

In sum, there are several options available if your trade secrets have been stolen.  Above all else, however, remember that time is of the essence in enforcing your rights if your trade secrets are stolen.  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 trade secret lawyer at (954) 440-0901 to assist you with protecting your trade secrets and proprietary information.  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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