Order Requiring Production Of Software Source Code Quashed

In Revello Medical Management, Inc. v. Med-Data Infotech USA, Inc. (2D10-534), the Second District granted a petition for certiorari and quashed a trial court order requiring the production of software source code.  The court described the facts as follows:

In simple terms, Med-Data claims that one of its former employees developed a software program to aid in medical insurance billing and that the employee took the program with him when he began working for Revello.  Revello is marketing a computer program that Med-Data claims is based on its trade secrets.  Med-Data sought to discover the computer source code used in Revello's program and, over Revello's objections that its program was a trade secret, the circuit court ordered it to produce the program to Med-Data's expert.  Revello seeks a writ of certiorari to quash the order.  

The court's analysis is copied, almost in its entirety, below:

In response to a defense discovery request for its computer source code, Med-Data stated: "[a]s to source codes, [Med-Data] declines to publish the exact nature of the trade secrets."  Under Florida's "at issue" doctrine, "[w]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence," he waives his right to claim that the matter is privileged in pretrial discovery....Thus it is clear that Med-Data has neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists.  As such, it was not entitled to discover the computer source code used in Revello's program.

Still, Med-Data is entitled to some protection of its alleged trade secret in pretrial discovery.  Ordinarily such matters should be submitted to the circuit court to conduct an in-camera review.  But because the alleged trade secret is a computer program, the evidence of its existence likely will consist of computer source code.  We presume this from the fact that Med-Data is seeking to discover the computer source code of Revello's program in order to prove that Revello has misappropriated the alleged trade secret.  If the circuit judge does not have the requisite experience in examining such code, he may wish to appoint a neutral computer expert to review MedData's program.  If it is established that Med-Data indeed has a trade secret to protect, the court may revisit its discovery request for Revello's computer source code and Revello's objections to discovery and craft similar protection for Revello's alleged trade secret.

*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.