QUICK NOTE: STEPS TO PROTECT AND AVOID THE “MISAPPROPRIATION” OF A “TRADE SECRET”

Florida’s Uniform Trade Secret Act (included in Florida Statute s. 688.001 en seq.) defines the terms “trade secret” and “misappropriation.”  These definitions (found here) are important in that just because 1) we deem something a trade secret does not, in of itself, make it so, and 2) we deem someone to have misappropriated a trade secret does not, in of itself, make it so.

If a party deems something to be a trade secret they should identify the document or paper as “confidential trade secret” as the first-step in preserving the confidentiality of that information.  The party should also consider entering into an agreement with the party that may receive that information to maximize the protection of such confidential trade secret information during the parties’ agreement.

For instance, as it pertains to construction, perhaps there is estimating information, general conditions information (calculations or rate), insurance or bond mark-up information, or constructability, design or systems recommendations that a party, at least during a material portion of a joint venture or teaming-type of arrangement, or solicitation, wants to protect from disclosure as the disclosure would impact that party’s competitiveness in price or scope.  In such case, a party may want to identify such material documents as “confidential trade secret” and, as feasible, enter into an agreement to maximize the confidentiality.  Just keep in mind, and although repeated, it is important to consider that just because a document is labeled as a trade secret does not make it so.  Notwithstanding, this does not mean steps should be avoided to best protect information that a party believes derives economic value to them because it is information that makes them competitive in the market.  A party should absolutely take steps to protect such information and, as necessary, preserve a trade secret misappropriation claim (as a just-in-case).

For more information regarding asserting a cause of action for misappropriation of a trade secret, check out this article.  This article discusses what a party must due to properly assert a misappropriation of trade secret claim to survive a motion to dismiss.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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