LEWIS TREE SERVICE, INC. v. ASPLUNDH TREE EXPERT, LLC

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LEWIS TREE SERVICE, INC., )
)
Petitioner, )
)
v. ) Case No. 2D20-493
)
ASPLUNDH TREE EXPERT, LLC, )
f/k/a ASPLUNDH TREE EXPERT CO., )
)
Respondent. )
)
Opinion filed September 25, 2020.
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Steven Scott
Stephens, Judge.
Joseph H. Lang, Jr., and Kevin P. McCoy of
Carlton Fields, P.A., Tampa, for Petitioner.
Jamie Billotte Moses, Kristin N. Royal, and
David E. Cannella of Holland & Knight, LLP,
Orlando, for Respondent.
VILLANTI, Judge.
Lewis Tree Service, Inc., petitions for a writ of certiorari to quash the trial
court's order that granted the motion to compel production of documents filed by
Asplundh Tree Expert, LLC, in this dispute between two competitors. Because the trial
court failed to conduct an in camera review of the documents before ordering their
production despite Lewis Tree's assertion that the documents contained protected trade
secret information, we grant the petition, quash the order compelling production, and
remand for further proceedings.
Background
Lewis Tree and Asplundh are competitors in the field of vegetation
management, which generally includes tree pruning and removal, right-of-way clearing
and maintenance, and emergency storm removals for cities, counties, and utility
companies. Both Lewis Tree and Asplundh had contracts with Duke Energy in the north
central region of Florida, with each covering different portions of the larger region.
These contracts were set to expire at the end of 2017, and both Lewis Tree and
Asplundh intended to bid for new contracts.
In late 2017, Asplundh fired one of its supervisors, Juan Angel Garza, for
reasons unrelated to the current dispute. While employed with Asplundh, Garza had a
signed noncompete agreement. Nevertheless, shortly after he was fired, Garza
allegedly started working with Lewis Tree as a "consultant" in violation of the terms of
this noncompete agreement, and he allegedly began recruiting Asplundh's foremen and
skilled workers on behalf of Lewis Tree. Allegedly as a result of Garza's efforts and
those of the foremen he recruited, more than sixty Asplundh employees—primarily the
higher-skilled climbers—abruptly quit in late September and early October 2017, with
the majority of them going to work for Lewis Tree, leaving Asplundh's north central
region severely understaffed.1
1The allegations in this paragraph are taken from Asplundh's complaint
and some very limited background comments provided by counsel for both parties at
the hearings that underlie this dispute. Our summary of these allegations should not be
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In response to this mass exodus, Asplundh sued Garza for breach of his
noncompete agreement. It also sued several of the former Asplundh foremen for
breach of their duty of loyalty to Asplundh based on their alleged recruitment of the
skilled workers. In count four of its amended complaint, Asplundh sued Lewis Tree for
tortious interference with Garza's noncompete agreement. And in count five, Asplundh
alleged that Lewis Tree, Garza, and the foremen conspired to convince the skilled
workers to breach their duty of loyalty to Asplundh. By the time of the events giving rise
to this petition, the trial court had granted summary judgment in favor of Lewis Tree on
the tortious interference claim, leaving the only claim against Lewis Tree as it having
conspired with Garza and the foremen to "steal" Asplundh's skilled workers.
At that point in the litigation, with only this one claim remaining against
Lewis Tree, Asplundh served Lewis Tree with a request for production of the complete
set of bid documents that Lewis Tree had submitted for the Duke Energy contract in late
2017. The alleged relevance of these bid documents requires a somewhat complicated
explanation. In the "short" version, Asplundh contended that its draft bid for the new
Duke Energy contract had been prepared as of October 3, 2017. When the foremen
and skilled workers abruptly quit to work for Lewis Tree, Asplundh had to increase its
bid to cover the unanticipated new labor costs that arose from this loss of management
and skilled labor. Thus, the final bid Asplundh submitted to Duke Energy on October 4,
2017, was higher than its October 3 draft bid. Duke Energy representatives had
testified at deposition that the only reason Lewis Tree was awarded the contract over
viewed as an indication of our opinion concerning their truth or falsity. They are
provided solely to frame the issue presented in this certiorari petition.
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Asplundh was because Lewis Tree's bid was lower. Asplundh contended that if its
October 3 draft bid was lower than Lewis Tree's final bid, then Asplundh could prove
that it lost the Duke Energy contract as a result of Lewis Tree's conspiracy to "steal" its
skilled workers. Thus, Asplundh contended that Lewis Tree's bid documents were
relevant and necessary to prove both causation and Asplundh's damages and so they
should be discoverable. When Lewis Tree balked at disclosing the requested
documents, Asplundh filed a motion to compel.
The trial court held two hearings on Asplundh's motion. At the hearings,
Lewis Tree argued that bids for vegetation management contracts are not bottom-line
bids. Instead, as best can be gleaned from the arguments made by counsel,2 bidders
prepare a matrix of prices per unit for various units of work, with the prices including
specified components for labor and equipment costs. Each unit represents a different
type of vegetation management need. The number of the different types of units to be
provided are not specified in the contract; instead, they are determined during the term
of the contract based on the needs that arise during the contract period. Hence, based
on the arguments of counsel at the hearing, it appears that the bids submitted are
similar to a guaranteed price list per unit, and the bid includes granular details of the
labor and equipment cost components that comprise the different unit prices.
Therefore, according to Lewis Tree, its bid documents—including all of those granular
details—could be examined by Asplundh and reverse-engineered to identify Lewis
Tree's proprietary bid development process, which it contended was a trade secret.
2Neither parties' bid documents are in the record provided to this court.
Therefore, we are limited to the description of the documents provided by the parties'
counsel at the hearings.
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Based on these assertions, Lewis Tree asked the trial court to review its
bid documents in camera and to provide it with an opportunity to explain how those
documents could be used by a competitor to discover trade secret information and thus
gain a competitive advantage in future bids. Lewis Tree also argued that producing the
entirety of the bid documents was not reasonably necessary to Asplundh's case. In
turn, Asplundh argued that no such in camera review was necessary because a bid was
not a trade secret as a matter of law. During the hearing, Asplundh showed the court
what it said was a partial copy of its own bid documents so that the court could see the
type of information included in the bid; however, Asplundh characterized its documents
as a "demonstrative exhibit," it refused to allow Lewis Tree to see the documents it gave
to the court, and those documents were not introduced into evidence or otherwise made
a part of the record before this court.
After the trial court reviewed the documents shown to it by Asplundh,
Lewis Tree again requested that the court conduct an in camera review of its bid
documents and then allow Lewis Tree an opportunity to explain how they could be
utilized to reveal protected trade secret information. Despite this request, the trial court
refused to conduct an in camera review of the bid documents. Instead, the court simply
found the bid documents to be relevant to Asplundh's remaining claim, and it concluded
that Lewis Tree would not be harmed by production of the documents because there
was a stipulated confidentiality agreement in place covering all discovery in the case.
This petition followed.
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Analysis
A writ of certiorari is appropriately granted when the trial court has made a
ruling that departs from the essential requirements of the law that results in harm
through the remainder of the case which cannot be remedied on postjudgment appeal.
See, e.g., Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla.
2d DCA 1995). Certiorari is particularly appropriate for "cat out of the bag" discovery
orders that would require the disclosure of information that is privileged or otherwise
protected from disclosure. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.
1995) (quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987));
Bright House Networks, LLC v. Cassidy, 129 So. 3d 501, 505 (Fla. 2d DCA 2014)
("Orders improperly requiring the disclosure of trade secrets or other proprietary
information often create irreparable harm and are thus appropriate for certiorari review."
(quoting Grooms v. Distinctive Cabinet Designs, Inc., 846 So. 2d 652, 654 (Fla. 2d DCA
2003))). Here, Lewis Tree asserts that the trial court's order departs from the essential
requirements of the law because it requires the production of trade secret information
without the court having conducted the analysis necessary to ensure that such
information is properly discoverable. On the record here, we agree.
Section 90.506, Florida Statutes (2019), sets forth Florida's trade secret
privilege and provides, in pertinent part:
A person has a privilege to refuse to disclose, and to prevent
other persons from disclosing, a trade secret owned by that
person if the allowance of the privilege will not conceal fraud
or otherwise work injustice. When the court directs
disclosure, it shall take the protective measures that the
interests of the holder of the privilege, the interests of the
parties, and the furtherance of justice require.
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To ensure that this privilege is properly protected, courts have set forth a three-step
analysis for trial courts 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
court must determine whether the information requested constitutes or contains trade
secret information. See Ameritrust Ins. Corp. v. O'Donnell Landscapes, Inc., 899 So. 2d
1205, 1207 (Fla. 2d DCA 2005). This step will usually—but not always—require the
court to conduct an in camera review of the documents to determine whether, in fact,
they contain trade secret information. Id.; see also Summitbridge Nat'l Invs., LLC v.
1221 Palm Harbor, L.L.C., 67 So. 3d 448, 449 (Fla. 2d DCA 2011). Generally, if the
parties agree that the documents contain trade secret information, no in camera review
would be necessary. See, e.g., Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d
804, 808 (Fla. 3d DCA 2014). However, if the parties disagree as to whether the
requested documents contain trade secret information, an in camera review or
evidentiary hearing will generally be needed. Id.If the court determines in this first step that the request seeks information
subject to the trade secret privilege, the second step of the analysis requires the court to
determine "whether the party seeking production can show reasonable necessity for the
requested information." Ameritrust Ins. Corp., 899 So. 2d at 1207. This step generally
"requires a trial court to decide whether the need for producing the documents
outweighs the interest in maintaining their confidentiality." Sea Coast Fire, Inc., 170 So.
3d at 809. This is a fact-specific analysis that will depend on the issues in the case and
the nature of the discovery requested.
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Finally, if the court determines that there is a reasonable necessity for
production of trade secret information, the third step requires the court to determine
what safeguards, such as a confidentiality order, should be put in place to properly
protect that information. See § 90.506 ("When the court directs disclosure, it shall take
the protective measures that the interests of the holder of the privilege, the interests of
the parties, and the furtherance of justice require." (emphasis added)); see also
Cassidy, 129 So. 3d at 505-06; McDonald's Rests. of Fla. v. Doe, 87 So. 3d 791, 794
(Fla. 2d DCA 2012); Summitbridge, 67 So. 3d at 449; Ameritrust Ins. Corp., 899 So. 2d
at 1207; Sea Coast Fire, Inc., 170 So. 3d at 809. Because these steps are sequential, it
is only after the trial court has determined that the requested documents contain trade
secret information and that production of those documents is reasonably necessary that
the court should consider what confidentiality protections are appropriate.
In this case, however, the record shows that the trial court turned the
three-step process on its head. When Asplundh disputed whether Lewis Tree's bid
documents contained trade secret information, Lewis Tree asked the court to conduct
an in camera review of the documents to determine whether they did in fact contain
protected trade secret information. However, the trial court refused this request.
Instead, the court told Lewis Tree that it would conduct an in camera review only after
Lewis Tree established that its bid documents contained trade secret information. This
decision ignores the fact that the entire purpose of the in camera review is to determine
whether the requested documents contain trade secret information. Hence, the trial
court never conducted the analysis required by step one. Instead, the trial court
proceeded directly to step three and simply ordered production of the bid documents
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because they were subject to a stipulated confidentiality agreement. The trial court's
decision to wholly dispense with the first step of a three-step process constitutes a
departure from the essential requirements of the law that justifies relief by certiorari.3
In this appeal, as it did in the trial court, Asplundh contends that no in
camera review was necessary because Lewis Tree's bid documents could not constitute
a trade secret as a matter of law. But this is incorrect. What constitutes trade secret
information is defined by the Uniform Trade Secrets Act and includes
information, including a formula, pattern, compilation,
program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Summitbridge, 67 So. 3d at 450 (quoting section 688.002(4), Florida Statutes (2010),
and applying it to a trade secret dispute under section 90.506). Based on that definition,
this court has held that while the "terms of a secret bid" might not constitute protected
trade secret information because they are not a formula, pattern, compilation, program,
method, or process, other information contained in bid documents "such as a code for
3Arguably, the trial court dispensed with the analysis required by step two
as well. While the parties argued at length during the hearing about whether Asplundh
"needed" the entirety of Lewis Tree's bid documents, the trial court never made any
specific findings on the issue. And because the decision to be made in step two
requires the court to determine whether the articulated need for the documents
outweighs the opposing party's interest in maintaining their confidentiality, it is difficult to
see how such a weighing could occur in the absence of the court having first
determined whether the documents actually contain trade secret information.
Nevertheless, because the trial court clearly refused to conduct the analysis required by
step one, we need not address the sufficiency of the court's analysis of step two.
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determining discounts, rebates or other concessions in a price list or catalogue, or a list
of specialized customers, or a method of bookkeeping or other office management"
could in some cases constitute protected trade secret information. Id. (quoting
Restatement (First) of Torts § 757 cmt. b (1939)). Thus, while a bottom-line bid and its
general terms might not constitute trade secret information, if the bid documents reveal
information about the bidder's underlying calculations or bid development process, the
documents might in some circumstances contain protected trade secrets.
Here, Lewis Tree argued that the nature of the bid documents for
vegetation management work and the level of detail required by Duke Energy are such
that the information contained in them could be reverse-engineered to reveal Lewis
Tree's proprietary bid development process. Whether this argument is correct or not
cannot be determined as a matter of law. Instead, it can be determined only after an in
camera review of the bid documents themselves. See, e.g., Sea Coast Fire, Inc., 170
So. 3d at 808 (noting that when there is a dispute concerning whether the requested
information contains trade secrets, an in camera review or evidentiary hearing is
generally necessary). Therefore, Asplundh's argument that Lewis Tree's bid documents
do not constitute trade secrets as a matter of law is simply incorrect.
In the alternative, Asplundh contends that the trial court did not depart
from the essential requirements of the law because it did, in fact, determine that Lewis
Tree's bid documents did not contain trade secrets based on its review of the
documents Asplundh showed the court during the hearing.4 But the transcript of the
second hearing flatly contradicts this argument.
4Asplundh refused to put these documents into evidence, claiming they
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Toward the end of the hearing when the court was discussing whether to
permit Lewis Tree to file the requested documents under seal, the court stated:
I'm still not sure I know what, if any, of this information
is going to qualify to go under seal as a trade secret
because, you know, if it's pricing information, clearly the
trade secret protection attaches to the process of making the
bid and formulating what all businesses formulate is how
high can we push the price up so we maximize the revenues
without losing the job.
And that's a guessing game that all companies
involved in the bidding process is ultimately going to play,
and they justifiably want to keep their bidding process very
secret because if the other side knows it, then you pretty
much lose by definition, so that I understand.
But the prices that were charged in a bid that was let
out two years ago and that's isn't due to let be let out again
anytime soon, as far as I know. Nobody's brought that to my
attention.· It seems like it has less protection, and I'm not
sure if it qualifies for protection for trade secret.
It does qualify for whatever protection your
confidentiality order affords it, so I don't know that you can
get me to do an in-camera review unless I find that it's a
trade secret.· I'm not sure I'm ready to do that for this
particular motion.
(Emphasis added.) Thus, the transcript makes it clear that the trial court expressly did
not make any determination as to whether Lewis Tree's bid documents contained trade
secret information. Accordingly, Asplundh's alternative argument is not supported by
the record before this court and cannot preclude relief from the trial court's order.
were intended to be only a demonstrative exhibit, and it has also not included the
documents in its appendix to this court. Hence, we have no way to know what
documents Asplundh actually showed the court, whether they reflected the entirety of
the documents that it was requesting that Lewis Tree produce, and whether the
documents would or would not support a conclusion that Lewis Tree's bid documents
did not include trade secret information.
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Conclusion
In sum, because the record before this court reflects that the trial court
refused to conduct an in camera review of Lewis Tree's bid documents to determine
whether they contained trade secret information before ordering their production, we
hold that the trial court departed from the essential requirements of the law.
Accordingly, we grant the petition and quash the trial court's order. On remand, the trial
court should conduct an in camera inspection of the requested bid documents to
determine whether they contain trade secret information. If so, the trial court must
consider whether Asplundh's need for the documents outweighs Lewis Tree's interest in
maintaining the confidentiality of its trade secret information and, if so, whether
disclosure subject to the stipulated confidentiality agreement constitutes sufficient
protection.
Petition granted.
CASANUEVA and SLEET, JJ., Concur.
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