Arko Plumbing Corp. v. Rudd

Third District Court of Appeal
State of Florida

Opinion filed October 18, 2017.
Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1689
Lower Tribunal No. 13-19894
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Arko Plumbing Corp., a Florida Corporation,
Appellant,

vs.

Michael P. Rudd, Esq. and Rudd & Diamond, P.A.,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, John W.
Thornton, Judge.

Weil Quaranta, P.A., Ronald P. Weil, John M. Quaranta, and Marguerite
Snyder, for appellant.

Rumberger, Kirk, & Caldwell, P.A., M. Stephen Smith, and Michael R.
Holt, for appellees.

Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.

LUCK, J.

Under Florida’s absolute litigation privilege, a defendant can slander the

plaintiff and lie to her and the court, and still be absolutely immune from a later
lawsuit for defamation, tortious interference with a business relationship, and even

violations of federal consumer protection statutes, as long as the slander and lies

were made in the courtroom or during the formal discovery process and had some

relation to the case. The trial court in this case extended the absolute privilege to

(1) the defendants accessing the plaintiff’s password-protected vehicle tracking

system, and (2) their questions to the plaintiff’s customers during an examination

under oath, and granted summary judgment for the defendants. We agree with the

plaintiff that the absolute privilege cannot be stretched that far, reverse summary

judgment, and remand to the trial court.

BACKGROUND FACTS AND PROCEDURAL HISTORY

In 2010, plaintiff Arko Plumbing Corporation was providing homeowners

with “video colonoscopies” of their cast-iron drain pipes to locate cracks in the

damaged pipes. Arko would identify the cracks, assist homeowners in filing claims

under their insurance policies, and then replace the damaged cast-iron pipes (an

expensive fix which required digging through a home’s flooring into the concrete

pad to remove the old, damaged pipes).

Bascuas v. Citizens Property Insurance Corp. Defendants Michael Rudd

and his law firm, Rudd & Diamond, P.A., represented insurance companies on

claims that they breached homeowner’s insurance policies by not covering Arko’s

repairs to the homeowners’ damaged pipes. In 2013, Rudd and his firm were

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defending Citizens Property Insurance Corporation in the breach of property

insurance case brought by the Bascuases. On February 26 and 27, 2013, Rudd and

his firm, with the help of a former Arko employee, John Collucci, used Collucci’s

still-active password to access Arko’s MotoMon Global Positioning System

account. MotoMon is an internet-based computer program which provided

historical and real-time access to the location of Arko’s service vans. On the

MotoMon program, Rudd and his firm, with Collucci’s password, accessed the

historical location information for eighteen Arko clients, including the Bascuases.

Rudd and his firm then issued subpoenas to Arko for its Motomon information,

including information related to location of Arko service vans at the Bascuas

residence.

Calejo v. State Farm Florida Insurance Co. In March 2013, Rudd and his

firm also defended State Farm Florida Insurance Company in the breach of

homeowner’s policy claim filed by the Calejos. The Calejos insurance policy with

State Farm required that they answer the company’s questions at an examination

under oath. The examination was held on March 8, 2013, and included the

following exchange:

Rudd: Did you have any kind of – and I think we talked about this, but
you never met with anybody at Arko at any time before this loss,
right?

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 Ms. Calejo: No sir, not that I recall. I know I’ve called plumbers
before but I don’t think that he was one of the ones that ever came to
my house.

Rudd: So, he didn’t come out to y’all about a year in advance and say
you need to clean this house up before we can make an insurance
claim?

Ms. Calejo: Oh, my God, no.

Rudd: He did not do that?

Ms. Calejo: No . . .

Rudd: And you never met with Joe or anybody associated with Arko
at any time in advance of this loss to discuss committing insurance
fraud?

Ms. Calejo: Oh, no.

The complaint. Arko filed its fifth amended complaint against Rudd and his

firm, and various other defendants, including Citizens, State Farm, Stephen Andris

(a State Farm employee), former Arko employee Collucci, and Maria Fonnegra

(Collucci’s girlfriend). The complaint alleged that Rudd and his firm engaged in:

a civil conspiracy with the other defendants (count one); deceptive and unfair trade

practices (counts four and five); theft of trade secrets (counts nine and ten);

defamation (counts fifteen and sixteen); and intentional interference with business

relationships (counts twenty-two and twenty-three).

Summary judgment. By the time of the summary judgment motion in this

case, Arko’s claims against Rudd and his firm were focused on accessing the

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MotoMon account in the Bascuas case, and the questions during the examination

under oath in the Calejo case. Rudd and his firm moved for summary judgment

based, in part, on the litigation privilege and because the information on the

MotoMon program was not a trade secret under Florida law. The trial court

granted the motion for summary judgment, explaining:

Okay. As to both Rudd and Rudd & Diamond I do find that whether
it’s the litigation privilege or the qualified privilege, that it absolutely
does apply, including under the facts and circumstances in this case
and, therefore, I grant summary judgment across the board for Rudd
and Rudd & Diamond in this case.

Arko moved for rehearing on the summary judgment for Rudd and his firm. In

denying the rehearing motion, the trial court, again, explained:

Under the facts of this case, the way the complaint is framed, [Arko’s]
customer list is not a trade secret. Absolute litigation privilege applies;
even if it were only qualified privilege, Arko didn’t carry its burden of
proving malice as to these defendants.

STANDARD OF REVIEW

“The standard of review of a summary judgment order is de novo and

requires viewing the evidence in the light most favorable to the non-moving

party.” Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). Whether the

litigation privilege applies to Rudd and his firm’s conduct is a pure question of

law, and is also reviewed de novo. DelMonico v. Traynor, 116 So. 3d 1205, 1211

(Fla. 2013).

DISCUSSION

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 Florida’s litigation privilege affords absolute immunity “to any act occurring

during the course of a judicial proceeding . . . so long as the act has some relation

to the proceeding.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950

So. 2d 380, 384 (Fla. 2007) (omission in original) (quoting Levin, Middlebrooks,

Mabie, Thomas, Mayes Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608

(Fla.1994)). The absolute privilege does not apply “where an attorney steps

outside of both the courtroom and the formal discovery process to investigate a

claim.” DelMonico v. Traynor, 116 So. 3d 1205, 1218 (Fla. 2013). Instead, a

“qualified privilege” applies “to statements made by attorneys as they undertake

informal investigation during pending litigation and engage in ex-parte, out-of-

court questioning of nonparty witnesses, ‘so long as the statements are relevant to

the subject of inquiry’ in the underlying suit.” Id. (quoting Levin, 950 So. 2d at

607). If the court determines that the qualified privilege applies, the burden is on

the plaintiff to “prove the additional element of express malice.” Id. at 1219.

Arko contends the trial court erred in granting summary judgment for Rudd

and his firm because: the litigation privilege did not apply to accessing Arko’s

MotoMon account and the examination under oath; even if it did, Rudd and the

firm acted with express malice, thereby overcoming the qualified privilege; and the

information in Arko’s MotoMon account was a trade secret, and thus, subject to

Florida’s trade secret act. Arko’s appeal raises three issues: (1) does the litigation

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privilege extend to Rudd and his firm’s accessing Arko’s MotoMon account (no);

(2) does the absolute or qualified privilege apply to Rudd’s questions at the

examination under oath (qualified); and (3) was the information on Arko’s

MotoMon account a trade secret (yes).

1. Does the litigation privilege extend to Rudd
and his firm’s accessing Arko’s MotoMon account?

While the absolute and qualified litigation privilege applies to statements

and acts that have some relation to a judicial proceeding, a review of the Florida

Supreme Court’s litigation privilege decisions shows that the statements and acts

must be communicative. Every Florida Supreme Court decision that has applied

the privilege has done so where the statement was made or act was done while

communicating during a pending case or as part of an investigation.

In Myers v. Hodges, 44 So. 357 (1907), the Florida decision adopting the

litigation privilege, the privilege was applied to a civil complaint alleging the

president of a corporation was “a tricky, dishonorable, unscrupulous and

conscienceless man.” Id. at 358 (quoting from the complaint). In Fridovich v.

Fridovich, 598 So. 2d 65 (Fla. 1992), the privilege was applied to statements made

to law enforcement officers, so the officers would falsely charge a family member

with murder. Id. at 66. In Levin, the Court applied the privilege to an insurance

company’s attorney who falsely certified that opposing counsel would be a witness

in the case. Levin, 639 So. 2d at 607. In Echevarria, the Court applied the

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privilege to letters sent by a law firm to defendants in foreclosure cases that falsely

represented the amount of money the defendants owed for title searching services.

Echevarria, 950 So. 2d at 381. And in DelMonico, the Court applied the qualified

privilege to false statements about one of the parties made during informal

interviews with potential witnesses in an ongoing litigation. DelMonico, 116 So.

3d at 1209.

In each of these litigation privilege cases, the privilege was applied to

communications made to another (the court, parties, law enforcement officers, and

witnesses) during an investigation or as part of judicial proceedings. Whatever the

cause of action (defamation, consumer protection act violations, tortious

interference), the litigation privilege protected communications that had some

relationship to a pending case.

While the Florida Supreme Court has not explicitly distinguished between

communicative and noncommunicative acts in discussing the litigation privilege,

the distinction is reflected in the Court’s stated purpose for the privilege.

[I]t is to the interest of the public that great freedom should be
allowed in complaints and allegations with a view to have them
inquired into; and that parties and counsel should be indulged with
great latitude in the freedom of speech in the conduct of their causes
in courts and in asserting their rights, because in this way the purposes
of justice will be subserved . . . .

Id. at 1212 (quoting Myers, 44 So. at 361). The privilege derived in part from “the

public interest in allowing litigants and counsel to freely and zealously advocate

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for their causes in court.” Id. at 1217. The litigation privilege’s purpose, that is, is

to protect courtroom speech and advocacy – the communicative tools lawyers,

litigants, and witnesses use to search for the truth in our adversarial justice system.

Other states have explicitly distinguished between communicative and

noncommunicative conduct. The California Supreme Court has explained that

“the litigation privilege protects only publications and communications,” and the

“threshold issue in determining the applicability of the privilege is whether the

defendant’s conduct was communicative or noncommunicative.” Rusheen v.

Cohen, 128 P.3d 713, 719 (Cal. 2006) (quotation omitted). Other states also have

stressed that the litigation privilege applies only to acts or statements that are

“communications.” See, e.g., Greenberg Traurig v. Frias Holding Co., 331 P.3d

901, 902 (Nev. 2014) (“[T]he litigation privilege immunizes from civil liability

communicative acts occurring in the course of judicial proceedings, even if those

acts would otherwise be tortious.”); Morgan & Pottinger, Attorneys, P.S.C. v.

Botts, 348 S.W.3d 599, 602 (Ky. 2011) (as modified on rehearing) (“A

communication must fulfill two requirements in order to fall within the ambit of

the judicial statements privilege. First, the communication must have been made

preliminary to a proposed judicial proceeding, or in the institution of, or during the

course and as part of a judicial proceeding. Second, the communication must be

material, pertinent, and relevant to the judicial proceeding.” (quotation and

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citations omitted)); Hawkins v. Harris, 661 A.2d 284, 289 (N.J. 1995) (“The

absolute privilege applies to any communication (1) made in judicial or quasi-

judicial proceedings; (2) by litigants or other participants authorized by law; (3) to

achieve the objects of the litigation; and (4) that have some connection or logical

relation to the action.” (quotation omitted)); Hopkins v. O’Connor, 925 A.2d 1030,

1037 (Conn. 2007) (“[C]ommunications uttered or published in the course of

judicial proceedings are absolutely privileged so long as they are in some way

pertinent to the subject of the controversy.” (quotation omitted)); Reagan v.

Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942) (“Any communication,

oral or written, uttered or published in the due course of a judicial proceeding is

absolutely privileged and cannot constitute the basis of a civil action in damages

for slander or libel.”).

In California, for example, the privilege has not been extended to the

unlawful recording of telephone conversations because recording another person

without that person’s permission is noncommunicative conduct. See Kimmel v.

Goland, 793 P.2d 524, 527-30 (Cal. 1990). For the same reason, the privilege has

not been applied to hang-up telephone calls and slashed tires because they were not

communications. See Martel v. Litchfield, No. C068425, 2013 WL 6260376, at

*4-5 (Cal. Ct. App. Dec. 4, 2013).

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 Here, too, Rudd accessing Arko’s MotoMon account on his law firm

computer was a noncommunicative act. Just as sneaking into an old friend’s house

to look at the books in his library doesn’t communicate anything to the friend,

accessing the account using Collucci’s password did not communicate information

to another person. Rudd didn’t write pleadings (Myers and Levin) or letters

(Echeverri); and he didn’t make false statements to the police (Fridovich),

defendants (Echeverri), or during an interview of potential witnesses (DelMonico).

Rudd, according to the summary judgment evidence, was looking for information

about Arko to use against homeowners in pending insurance cases. Rudd and his

firm were gathering information from the MotoMon system – they were not trying

to communicate a thought, idea, or issue to another person.

Without a communicative act, Rudd and his firm’s actions fall outside what

the Florida Supreme Court has held as protected by the litigation privilege. We

conclude that Rudd’s sitting at his computer and accessing Arko’s MotoMon

account was not a communication subject to the privilege.

2. Does the absolute or qualified privilege
extend to Rudd’s questions at the examination under oath?

Rudd’s questions to Ms. Calejo during the examination under oath were

communications. Rudd contends they should be considered part of the formal

discovery process, and therefore, subject to the absolute litigation privilege. Arko

responds that the examination under oath is not part of the formal discovery

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process, and the qualified privilege should apply. The difference matters because

under the qualified privilege Arko must show a genuine issue of material fact that

Rudd asked the questions with express malice, that is, Rudd’s primary motive in

asking the questions was to injure Arko’s reputation. DelMonico, 116 So. 3d at

1219. For the absolute privilege, there’s no need to prove malice because “the

formalized judicial process . . . serve[s] to counteract the occurrence and

consequences of defamatory statements or abuse.” Id. at 1217.

Rudd analogizes examinations under oath to witness depositions authorized

by the rules of civil procedure. Because the Florida Supreme Court has described

civil procedure depositions to be inside the formal discovery process, and

examinations under oath are deposition-like, the argument goes, they too should be

considered part of the formal discovery process. True, the Florida Supreme Court

cited “depositions properly noticed under the Florida Rules of Civil Procedure” as

an example of a judicial proceeding having “safeguards in place that served to

provide real and immediate checks to abusive and overzealous practice.” Id. at

1217. Civil procedure depositions, the Court explained, have “protections of the

formalized judicial process” because:

 they are “adversarial in nature and the opposing side has an opportunity

to immediately object to any untrue statements”;

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  “if statements are falsely made, the harmed party may seek to impose

sanctions against the offending party in an expeditious way, with the

transcript of the deposition providing a clear record of proof”; and

 “the trial court can thereafter strike the defamatory matter from the

record.”

Id. Also, civil procedure depositions are limited to relevant information as defined

by the rules of civil procedure, and the trial court has discretion to videotape the

deposition and appoint a special master to preside over it as protections to the

parties. See Fla. R. Civ. P. 1.280(b)(1) (“Parties may obtain discovery regarding

any matter, not privileged, that is relevant to the subject matter of the pending

action . . . .”); id. R. 1.280(c)(2) (“Upon motion by a party or by the person from

whom discovery is sought, and for good cause shown, the court in which the action

is pending may make any order to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense that justice requires,

including . . . that the discovery may be had only on specified terms and conditions

. . . .”).

To be sure, an examination under oath has some of these protections,

including having opposing counsel present at the examination, but even then “an

insured’s counsel plays a different role during examinations under oath than during

depositions.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 305 (Fla.

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4th DCA 1995). An examination under oath does not have a mechanism for a

defamed party to seek to impose sanctions in an expeditious way, and there is no

process to strike the defamatory matter from the record. There is no legal

limitation on the scope of the examination, and a party concerned about

harassment cannot get protection in advance like at a civil procedure deposition.

The safeguards that protect a party from harm in a civil deposition are not there for

an examination under oath.

The absolute privilege, the Florida Supreme Court has explained, is part of a

tradeoff. The absolute privilege was created to encourage zealous representation

and the free and full discovery of facts between the parties and the court. See

DelMonico, 116 So. 3d at 1216 (“This absolute immunity resulted from the

balancing of two competing interests: the right of an individual to enjoy a

reputation unimpaired by defamatory attacks versus the right of the public interest

to a free and full disclosure of facts in the conduct of judicial proceedings.”). In

exchange, the parties subject themselves to the consequences if they cross the line:

striking from the record scurrilous accusations; sanctions; and even criminal

contempt. The civil procedure deposition fits snuggly within this balance.

Examinations under oath do not. There is no judge or neutral third-party to

strike defamatory statements; there is nowhere to seek sanctions for abusive

conduct at the examination; and there is no threat of contempt with the power of

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the state behind it. There are not the “real and immediate checks to abusive and

overzealous practices” that the Florida Supreme Court requires in exchange for the

full protections of the absolute privilege. Id. at 1217. We conclude that an

examination under oath is outside the formal discovery process, and therefore,

does not support an extension of the absolute privilege.

But that doesn’t end the inquiry. While the absolute privilege does not

apply, the qualified privilege does because Rudd’s questions to Ms. Calejo were

part of the informal investigation during pending litigation and had some relation

to the Calejos lawsuit against the insurance company. See id at 1218 (“Without

the aforementioned protective measures, we conclude that only a qualified

privilege should apply to statements made by attorneys as they undertake informal

investigation during pending litigation and engage in ex-parte, out-of-court

questioning of nonparty witnesses, so long as the statements are relevant to the

subject of inquiry in the underlying suit.” (quotation omitted)). The Calejos’

breach of insurance policy claim was pending at the same time as the examination

under oath, and Arko’s alleged fraud was part of the insurance company’s defense.

The trial court found that even if the qualified privilege applied to Rudd and

his firm’s conduct, Arko presented no summary judgment evidence that Rudd

acted with express malice. We disagree.

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 Rudd’s questions to Ms. Calejo about Arko committing fraud were based on

the information provided by Arko’s former employee Collucci. Arko presented

summary judgment evidence that public records showed Collucci was a heroin

addict and on probation; Rudd knew that Collucci had been fired for taking illegal

public adjuster commissions and wanted revenge against Arko and its

management; Rudd knew that former employee Collucci used his password to

access Arko’s MotoMon account and gave the password to Rudd to use; Rudd

knew that Collucci lied under oath about accessing the MotoMon account;

attorneys representing insurance companies paid Collucci for investigating Arko

and testifying against them in homeowners insurance cases; and Rudd sued Arko

for racketeering.

Rudd argues that this evidence shows he was motivated to gather

information for his firm’s defense of its insurance company clients. That is

certainly one inference, and it may be the correct one. But at the summary

judgment stage, all reasonable inferences from the evidence are made in favor of

the non-moving party – in this case, Arko. A reasonable juror could also infer that

Rudd’s reliance on a former employee with an ax to grind against Arko, who lied

under oath, had a knowable drug problem, and was paid for his testimony, was

circumstantial evidence of express malice.

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 Express malice “may be established indirectly, i.e., ‘by proving a series of

acts which, in their context or in light of the totality of surrounding circumstances,

are inconsistent with the premise of a reasonable man pursuing a lawful objective,

but rather indicate a plan or course of conduct motivated by spite, ill-will, or other

bad motive.’” McCurdy v. Collis, 508 So. 2d 380, 382 (Fla. 1st DCA 1987)

(quoting S. Bell Tel. & Tel. Co. v. Roper, 482 So. 2d 538, 539 (Fla. 3d DCA

1986)). “Where,” as here, “the circumstances surrounding the statement are in

dispute, the question of qualified privilege is a factual determination for resolution

by the jury.” Id.; see also id. at 385 (“Since we recognize the difficulties involved

in determining whether malice was the [primary] motivating factor in this

interference case, we conclude the qualified privilege issue should be resolved by

the trier of fact.”).

In McCurdy, the Exxon Corporation relied on the testimony of a doctor to

tell an employee’s supervisor that the employee was not safely able to work on

Exxon property. Id. at 381-82. Exxon, when sued (as Arko did) for tortious

interference with a business relationship, claimed the qualified privilege applied to

its statements to the supervisor. The first district concluded that there was

evidence of Exxon’s express malice because “the record indicate[d] that Exxon

personnel based their decision that [the employee] was a safety risk on the basis of

third party reports concerning Dr. Johnson’s trial testimony,” the company

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“conducted no independent investigation of [the employee’s] job performance, and

in fact his employers advised Exxon that [the employee] was doing a good job.”

Id. at 384; see also Corp. Fin., Inc. v. Principal Life Ins. Co., 461 F. Supp. 2d 1274,

1294 (S.D. Fla. 2006) (“Plaintiffs have produced sufficient circumstantial evidence

. . . from which a reasonable jury could find that Castrillon was the source of the

altered information, [and] that he was motivated by an intent to injure Plaintiffs . . .

.”). There was a factual dispute about Exxon’s motive because it had contrary

information about the employee’s ability to work and did not investigate.

Here, too, Rudd and his firm based their examination under oath questions

on what Collucci shared with them. Rudd, as did Exxon, knew of conflicting

information about Collucci’s credibility, including that he left Arko on bad terms,

had lied under oath, and had been promised payment for his testimony, and did not

investigate Collucci’s criminal background, including that he was on probation and

had abused heroin. Still, Rudd used Collucci’s information to ask an Arko client

about Arko’s fraud. Because the surrounding circumstances of the examination

under oath lead to competing inferences about Rudd’s motive, as in McCurdy, the

question of express malice was a genuine disputed fact for the jury.

3. Was the information Rudd accessed on
the MotoMon account Arko’s trade secrets?

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 The trial court also granted summary judgment for Rudd and his firm on

Arko’s trade secret act claim because the information that was accessed on the

MotoMon account was not a protected trade secret. A trade secret is

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.

§ 688.002(4), Fla. Stat. (2017). Arko’s summary judgment evidence created a

genuine issue of material fact that the information on the MotoMon account was a

trade secret.

Customer information has been held to be a trade secret. See, e.g., Sea

Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 808 (Fla. 3d DCA 2014)

(“Examples of trade secrets include confidential business information such as a

customer list, when the list is not just a compilation of information readily

available to the public, but rather acquired or compiled through the owner’s

industry.”); Delucca v. GGL Indus., Inc., 712 So. 2d 1186, 1187 (Fla. 4th DCA

1998) (“[W]e find competent substantial evidence that some of the information

given out by appellant, which included information about customers which was not

available from other sources, constitutes trade secrets under Chapter 688.”). Here,

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the summary judgment evidence showed that Arko had a GPS tracking device on

each of its trucks. The MotoMon program linked up to the GPS tracking devices

to capture in real time the customers and potential customers that Arko trucks

visited to provide plumbing services and video colonoscopies. Customer

addresses, the date Arko trucks visited the customer, and the length of time the

truck was at the customer’s home was available on the MotoMon program.

This information, according to the summary judgment evidence, would have

been valuable to Arko competitors because with it they could have solicited Arko

customers and offered plumbing services that undercut Arko’s prices. To avoid

that from happening, Arko kept this information from its competitors and the

public by requiring a password to access the MotoMon program. Only two Arko

managers had passwords (one of which was Collucci). And Arko signed an

agreement with MotoMon that it would not provide information to third persons

about the location of Arko vehicles. These are the sorts of reasonable efforts to

maintain secrecy required by the trade secret statute. See Heralds of Gospel

Found., Inc. v. Varela, No. 17-22281-CIV, 2017 WL 3868421, at *5 (S.D. Fla.

June 23, 2017) (concluding under Florida’s trade secret act that “Plaintiffs have

also likely taken more than reasonable measures towards safeguarding the

confidentiality of their Trade Secret Information, including but not limited to,

requiring the recipients of digital files containing the Videos to execute NDAs,

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restricting access to these digital files with password encryption, and limiting

exposure of the Videos to distinct members of the Association and the Heralds.”);

Infinite Energy, Inc. v. Chang, No. 1:07-CV-23-SPM/AK, 2008 WL 11344672, at

*2 & n.1 (N.D. Fla. Jan. 9, 2008) (finding customer lists protected trade secrets

under Florida’s trade secret act in part because “Plaintiff did maintain the lists on

password protected computers, maintained a secure computer network, and

contracted with Defendant to maintain confidentially regarding trade secrets”).

CONCLUSION

For these reasons, we reverse the summary judgment entered in favor of

Rudd and his firm, and remand for further proceedings consistent with this

opinion. We express no opinion on other grounds raised in Rudd and his firm’s

summary judgment motion that were not addressed by the trial court in its orders,

and the parties in this appeal.

Reversed and remanded.

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