Arko Plumbing Corp. v. Rudd
230 So. 3d 520
| Fla. Dist. Ct. App. | 2017Background
- Absolute Florida litigation privilege immunizes acts in judicial proceedings with some relation to the case; non-communicative acts may fall outside the privilege.
- Rudd and his firm accessed Arko’s MotoMon GPS account using Collucci’s password in the Bascuas case to obtain location data.
- Rudd and firm also questioned Arko customers during an examination under oath in the Calejo case.
- Trial court granted summary judgment for Rudd based on the privilege and non-trade-secret status of MotoMon data; the court denied rehearing.
- This appeal raises (a) whether MotoMon access is covered by the privilege, (b) whether oath questions are covered by absolute or qualified privilege, and (c) whether MotoMon data is a trade secret.
- Court reverses and remands; extent of privilege and trade secret determinations are reconsidered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the litigation privilege extend to accessing MotoMon data? | Arko argues the access is noncommunicative and outside the privilege. | Rudd argues any act during litigation related to the case should be privileged. | No; access was noncommunicative and outside the privilege. |
| Do Rudd’s examination questions fall under absolute or qualified privilege? | Arko contends the examination is not formal discovery; absolute privilege does not apply. | Rudd contends the questions are within formal discovery and thus absolutely privileged. | Questions are communications; absolute privilege does not apply; qualified privilege applies with malice issue for jury. |
| Is the MotoMon information a trade secret? | Arko argues the data is a trade secret under Fla. Stat. § 688.002(4). | Rudd argues the data is not a protected trade secret. | There is a genuine issue on trade-secret status; information may be a trade secret. |
Key Cases Cited
- Myers v. Hodges, 44 So. 357 (Fla. 1907) (basis of privilege—communications in litigation)
- Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) (privilege applied to statements to law enforcement in alleged misconduct)
- Levin v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994) (privilege for attorney certifications within litigation)
- Echevarria v. Cole, 950 So.2d 380 (Fla.2007) (communications by law firm to defendants during proceedings)
- DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013) (qualified privilege for informal investigation during pending litigation)
- McCurdy v. Collis, 508 So.2d 380 (Fla.1st DCA 1987) (malice shown by surrounding circumstances; jury resolves qualified privilege)
- Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804 (Fla.3d DCA 2014) (customer information can be trade secret under Florida law)