The Week In Torts – Cases from September 16, 2022
It’s a secret, I swear!
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 37
CASES FROM THE WEEK SEPTEMBER 16, 2022
TRIAL COURTS MUST ENGAGE IN THREE-STEP PROCESS BEFORE ORDERING DOCUMENTS WHERE THE PARTY ASSERTS TRADE SECRET PRIVILEGE
GCTC Holdings, LLC v. T Tag QSR, LLC, 47 Fla. L. Weekly D1873 (Fla. 2nd DCA Sep. 9, 2022):
In this landlord/tenant case, the landlord objected to producing the leases involved in a commercial shopping center. The basis for the objection was that the leases constituted privileged and confidential trade secret information.
The court explained that trade secrets are privileged pursuant to §90.506. To ensure that the privilege is properly protected, courts have set forth a three-step analysis for trial judges to undertake when faced with a claim that a discovery request seeks the production of protected trade secret information.
In the first step, the trial judge must determine whether the information requested constitutes or contains trade secret information. That step will usually, but not always, require the court to conduct an in-camera review of the documents to determine whether they contain trade secret information.
If the trial court determines that the information is a trade secret, then it must determine whether the party seeking production can show reasonable necessity for requesting the information. This prong includes consideration of whether the requesting party’s need for the information outweighs the other party’s interest in maintaining the confidentiality of the documents, and is a fact specific inquiry.
Finally, if the trial court determines there is a reasonable necessity for production of trade secret information, the third step requires the court to determine what safeguards, such as confidentiality, should be put in place to protect the information.
If a trial judge orders such disclosure, it must make findings to support its determination. A trial court departs from the essential requirements of law when it requires production of documents – without explanation – despite objections that statutory protections apply.
The appellate court reminded us that courts repeatedly grant petitions for writs of certiorari where a trial court skips the first step – conducting the in-camera review – and fails to make findings regarding whether the requested information constitutes a trade secret, or whether the requesting party has demonstrated a necessity to overcome the claim of privilege.
STATUTE OF LIMITATIONS BARRED LEGAL MALPRACTICE CLAIM FILED MORE THAN TWO YEARS AFTER THE PLAINTIFF’S ECONOMIC LOSS IN THIS TRANSACTIONAL SETTING
Mikhaylov v. Bilzin Sumberg Baena Price & Axelrod, LLP, 47 Fla. L. Weekly D1836 (Fla. 3rd DCA Sep. 7, 2022):
The question in the case hinged on when the losses accrued to start the clock on the statute of limitations running. The parties disagreed as to whether the question should have been determined by applying the “finality accrual rule” or the “first-injury rule.”
The finality accrual rule means that a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been completed (including appellate review), because until that time one cannot determine whether there was any actionable error by the attorney.
However, when alleged malpractice occurs and there are damages undeniably suffered as a proximate cause of the malpractice, the first injury rule applies.
This case involved a bankruptcy, and while it could have “at best” mitigated the loss that already occurred, damages undeniably had been established that began to toll the statute of limitations.
TRIAL COURT MAY NOT RELY ON A JUDGMENT FROM SEPARATE CASE TO GRANT A MOTION TO DISMISS, WHERE THE PLAINTIFF HAD NOT ATTACHED THE JUDGMENT TO THE COMPLAINT OR INCORPORATED IT BY REFERENCE
Cleveland Wellness Medical v. Direct General Insurance Co., 47 Fla. L. Weekly D1863 (Fla. 5th DCA Sep. 9, 2022):
When considering a motion to dismiss a complaint, trial courts are confined to the allegations contained within its four corners, and must accept all well-pled allegations as true.
Here the trial court relied on a judgment from a separate case that was not attached to the complaint or incorporated by reference to dismiss the case which was error.