IN THE SUPREME COURT OF FLORIDA

AAR MANUFACTURING, INC., an $.Illinois corporation,

Petitioner, Case No.: SCl2-2470

On Review from the District ourt dfMATRIX COMPOSITES, INC., Appeal, Fifth District, No.: 5D11-3802

Respondent.

PETITIONER'S SECOND AMENDED JURISDICTIONAL BRIEF ANDAPPENDIX

Of Counsel:

SEAN M. MCDONOUGH

Florida Bar No. 896446WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP

105 East Robinson Street - 4th F]OOrOrlando, Florida 32801(407) 423-7287

Table of Contents

Table of Authorities .................................................................................................. ii

Statement of the Case and Facts ............................................................................... 1

Summary of the Argument........................................................................................ 2

Argument................................................................................................................... 3

The decision of the Fifth District Court of Appeal in this case expressly anddirectly conflicts with the decision of the Second District Court of Appeal inRer eilo, supra............................................................................................................ 3

A. The Second DCA's opinion in Revello ..................................................... 3

B. The Fifth DCA's opinon here.................................................................... 6

Conclusion................................................................................................................. 8

Table of Authorities

Cases

A A R Manufacturing, Inc. v. Matrix Composites, Inc.,98 So. 3d 186 (Fla. 5'h DCA 2012).................................................................. passim

Aravena v. Miami-Dade County,928 So. 2d 1163 (Fla. 2006)................................................................................. 2, 7

Beck v. Dumas,709 So. 2d 601 (Fla. 4'" DCA 1998)................................................................. 4, 5, 8

Breed Technologies, Inc. v. A liiedSignal Inc.,861 So. 2d 1227 (Fla. 2d DCA 2003)....................................................................... 6

Crosslev v. State,596 So. 2d 447 (Fla. 1992).................................................................................... 2, 7

Del Monte Fresh Produce Co. v. Dole Food Co.,148 F. Supp. 2d 1322 (S.D. Fla. 2001). .................................................................4-5

DeRubeis v. Witten Technologies, Inc.,244 F.R.D. 676 (N.D. Ga. 2007)............................................................................... 6

Knights Armament Co. v. Optical Systems Technology, Inc.,254 F.R.D. 463 (M.D. Fla. 2008)............................................................................. 4

Levenger Co. v. Feldman,516 F. Supp. 2d 1272 (S.D. Fla. 2007).................................................................... 4

Revello v. Medical Management, Inc. v. Med-Date Infotech, USA, Inc.,50 So. 3d 678 (Fla. 2d DCA 2010)..................................................................passim

Sununitbridge National Investments, LLC v. 1221 Palm Harbor, L.L.C.,67 So. 3d 448 (Fla. 2d DCA 2011)........................................................................... 4

Superior Ins. Co. v. Cano,829 So. 2d 991 (Fla. 2d DCA 2002)..................................................................... 4, 5

11

Florida Rules of Appellate Procedure

Rule 9.030 .................................................................................................................2

Other Authorities

Webster's New World Dictionary (1990)................................................................. 7

111

I. Statement of the Case and Facts.

In this trade secret misappropriation action, AAR Manufacturing, Inc. ("AAR")

petitioned the Fifth District Court of Appeal for issuance of a writ of certiorari to

quash the non-final discovery order of the Circuit Court of the 18'" Judicial Circuit in

and for Brevard County, Florida. The circuit court's order was rendered on October

13, 2011 and compelled AAR to produce its trade secrets to plaintiff-respondent

Matrix Composites, Inc. ("Matrix"). AAR contended that the circuit court's order

departed from the essential requirements of the law because, inter alia, the circuit

court did not make a prior finding that Matrix's allegedly misappropriated trade

secrets are in fact trade secrets as required by Revello v. Medical Management, Inc. v.

Med-Data Infotech, USA, Inc., 50 So. 3d 678 (Fla. 2d DCA 2010). At the time,

Revello was the only Florida state case on point at the time.

On September 7, 2012, the Fifth DCA handed down its opinion denying AAR's

petition in part and granting it in part. AA R Manufacturing, Inc. v. Matrix Composites,

Inc., 98 So. 3d 186 (Fla. 5'" DCA 2012). The Fifth DCA agreed with AAR that the

circuit court's order was overbroad in numerous respects not pertinent here. However,

the Fifth Circuit denied AAR's request that Matrix be compelled to make a threshold

showing that its allegedly misappropriated trade secrets are in fact trade secrets and

specifically rejected Revello, supra. AAR timely moved for rehearing, certification,

and rehearing en banc. That motion was denied on October 19, 2012. On November

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16, 2012, AAR timely filed its notice invoking the discretionary jurisdiction of this

Court on the ground that the Fifth DCA's opinion in this case expressly and directly

conflicts with the Second DCA's opinion in Revello.

II. Summary of the Argument.

This Court has discretionary jurisdiction to review a decision of a district court

of appeal that expressly and directly conflicts with a decision of this Court or another

district court of appeal on the same point of law. Rule 9.030(a)(2)(A)(iv). Two

decisions expressly and directly conflict with each other where they are irreconcilable.

See, e.g., Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166-1167 (Fla. 2006);

Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992)(concluding that because the court

below "reached the opposite result on controlling facts which, if not virtually identical,

more strongly dictated" the result reached by the alleged conflict case, a conflict of

decisions existed that warranted accepting jurisdiction).

Here, the Second DCA in Revello held that a plaintiff in a trade secret

misappropriation case must make a threshold showing that the allegedly

misappropriated trade secrets were in fact trade secrets before defendant can be

compelled to produce its own trade secrets in discovery. The Fifth DCA in this case

specifically "rejected" Revello (the Fifth DCA's word) and found that such a threshold

showing is not required of a trade secret misappropriation plaintiff. Revello and AAR

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Manufacturing are the only two Florida cases opining on this critical issue in trade

secret litigation, and they are irreconcilable. This Court's review is thus permissible i

III. Argument.

The decision of the Fifth District Court of Appeal in this case expresslyand directly conflicts with the decision of the Second District Court ofAppeal in Revello, supra.

A. The Second DCA's opinion in Revello.

I n Revello Medical Management, Inc. v. Med-Data Infotech USA, Inc., 50 So.

3d 678 (2d DCA 2010), the Second DCA established that a plaintiff seeking damages

for the alleged misappropriation of trade secrets (such as Matrix here) must establish

two things before defendant (such as AAR here) can be compelled to disclose its own

trade secrets in discovery. First, plaintiff "must as a threshold matter" establish that

the information which it contends to be a misappropriated trade secret is in fact a trade

secret. And second, plaintiff must describe the information which it contends to be a

misappropriated trade secret with "reasonable particularity." Revello, 50 So. 3d at

579-680. The reason for these requirements is simple: to ensure that defendant's

disclosure of its own trade secrets is truly warranted so as to avoid the potential for

Indeed, when Revello is cite-checked on Westlaw, the following notation appearsfirst: "Declined to Follow by AAR Mfg., Inc. v. Matrix Composites, Inc., 98 So.3d 186, 188, 37 Fla. L. Weekly D2165, D2165 (Fla. App. 5 Dist. Sep. 07, 2012)(NO. 5D11-3802)."

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irreparable harm through unnecessary disclosure. See, e.g., Superior Ins. Co. v. Cano,

829 So. 2d 991, 992 (Fla. 2d DCA 2002); Beck v. Dumas, 709 So. 2d 601, 603 (Fla.

4* DCA 1998).

Revello is a holding of first impression in Florida state court. It has long been

established that "when trade secret privilege is asserted as the basis for resisting

production[,] the court must first determine whether the requested production

constitutes a trade secret; if so, the court must require the party seeking production to

show reasonable necessity for the requested materials; if production is then ordered,

the court must set forth its findings." Beck, 709 So. 2d at 603. See also,

Sununitbridge National Investments, LLC v. 1221 Palm Harbor, L.L.C., 67 So. 3d 448,

450-451 (Fla. 2d DCA 2011). Revello extended this principle to the context of

misappropriation of trade secret actions such as that presented here.

Revello was co1Tectly decided and is in accord with established Florida law

regarding discovery of trade secrets. See, e.g., Knights Armament Co. v. Optical

Systems Technology, Inc., 254 F.R.D. 463, 467 (M.D. Fla. 2008) ("It is axiomatic that

a party may not assert a cause of action for misappropriation of trade secrets without

identifying for the opposing party the trade secrets at issue."); Levenger Co. v.

Feldman, 516 F. Supp. 2d 1272, 1287 (S.D. Fla. 2007) (one claiming misappropriation

of trade secrets must prove that misappropriated information constitutes trade secrets);

Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1322, 1324-1325

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(S.D. Fla. 2001) ("Florida courts recognize that in order to ascertain whether trade

secrets exist, the information at issue must be disclosed. Because Del Monte is asking

this court to fmd that trade secrets exist and were misappropriated by Dr. Funk, Del

Monte must reveal the information it ultimately seeks to protect.") (citations omitted).

Simply put, there is no material difference between compelling defendant's

disclosure of trade secrets in a non-trade secret action wherein defendant asserts the

trade secret privilege in discovery, and compelling defendant's disclosure of trade

secrets in a trade secret misappropriation case. No matter the context in which the

discovery of defendant's trade secrets is sought, the essential requirements of law

demand that defendant be protected from irreparable harm as a result of such

disclosure. Revello, 50 So. 3d at 579-680; Superior Ins., 829 So. 2d at 992; Beck,

709 So. 2d at 603. Such harm to defendant is significant and has been recognized

repeatedly by the courts:

[C]ourts have identified at least four policieswhich support delaying trade secret discovery until thetrade secret plaintiff has sufficiently described the tradesecrets at issue. First, if discovery on the defendant'strade secrets were automatically permitted, lawsuitsmight regularly be filed as "fishing expeditions" todiscover the trade secrets of a competitor. * * *

Second, until the trade secret plaintiff hasidentified the secrets at issue with some specificity, thereis no way to know whether the information sought [fromdefendant] is relevant. * * * Thus, requiring the plaintiffto sufficiently identify its trade secrets prior to allowingdiscovery on the defendant's trade secrets helps the court

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to determine the outer permissible bounds of discoveryand prevent needless exposure of the defendant's tradesecrets.

Third, it is difficult, if not impossible, for thedefendant to mount a defense until it has some indicationof the trade secrets allegedly misappropriated. Often, atrade secret defendant will defend the claim by showingthat it does not use the claimed secret or that theinformation is in fact not a secret. Until the defendantknows what information is at issue, it cannot attempt torebut the plaintiff's charges of misappropriation. Finally,requiring the plaintiff to state its claimed trade secretsprior to engaging in discovery ensures that it will notmold its cause of action around the discovery it receives.* * * If plaintiff is not forced to define his allegeddisclosures before gets into defendant's files, he maysimply claim whatever he finds there.

DeRubeis v. Witten Technologies, Inc., 244 F.R.D. 676, 680-681 (N.D. Ga. 2007)

(citations omitted).

B. The Fifth DCA's opinion here.

As set out in the Statement of Facts, supra, the Fifth DCA here specifically

rejected Revello.2 The Fifth DCA's rejection creates an express and direct conflict

2 AAR notes further that the circuit court had no discretion to disregard Revello or toignore its holding, even if it believed that Revello was incorrect in its analysis orotherwise wrongly decided. This is because, when presented with an appellateopinion directly on point, the circuit court is "obliged to follow the precedents of otherdistrict courts of appeal absent a controlling precedent of this Court or the SupremeCourt." Breed Technologies, Inc. v. AlliedSignal Inc., 861 So. 2d 1227, 1231 (Fla. 2dDCA 2003) (emphasis added). Pursuant to this well-established rule of decision, thecircuit court's failure to follow Revello requires that its order be quashed. AAR madethis point in its petition for writ of certiorari to the Fifth DCA and the Fifth DCA didnot address it.

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with Revello because the Fifth DCA's opinion here and Revello are irreconcilable

results based upon nearly identical facts. Aravena, supra, 928 So. 2d at 1166-1167;

Crossley, supra, 596 So. 2d at 449.

In its response to AAR's motion for rehearing, certification, and rehearing en

banc, Matrix acknowledged that Revello and the Fifth DCA's opinion here are in

conflict, but asserted that the conflict between the two decisions is merely "indirect"

and "implied" as follows:

This Court [the Fifth DCA] provided only that, "[t]o theextent that Revello Medical Management, Inc. v. Med-Data Infotech USA, Inc., 50 So. 3d 678 (Fla. 2d DCA2010), can be read to require a threshold finding as to theexistence of the trade secret in misappropriation cases,we reject that notion." (Opinion, p. 3). Accordingly, atbest it can be urged that the conflict with the RevelloOpinion is "indirect" and "implied", neither of which aresufficient to meet the dual mandated prongs requiredbefore the Florida Supreme Court could considerinvoking discretionary jurisdiction. (Matrix Resp. at p. 5,filed in the Fifth DCA on October 5, 2012)

Matrix's assertion has no basis in the language used by the Fifth DCA. The Fifth

DCA used the word "reject"- "to reject" is defined as "to refuse to take, agree to, use,

believe." Webster's New World Dictionary (1990) at 497. By contrast, "to imply" is

defined as "to indicate indirectly, hint, suggest." Webster's, supra, at 296. Applying

these definitions, the Fifth DCA - through its use of the word "reject"- explicitly and

directly refused to agree with the Revello threshold showing requirement. There is

nothing "indirect," "hinting," or "suggestive" here; this is only common sense.

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In sum, it is uniformly recognized that anyone who is erroneously compelled to

disclose a trade secret "will have suffered a material harm for which there would be no

adequate remedy by appeal." Beck, 709 So. 2d at 603. Defendants in

misappropriation actions may now be required to disclose their trade secrets without

knowing if the information in dispute is plaintiff's trade secret - or they may not,

depending on where they are sued. Supreme Court review is thus warranted because

all trade secret misappropriation litigants need a uniform discovery rule in this highly

sensitive area.

IV. Conclusion.

This Court has discretionary jurisdiction to review the decision below, and it

should exercise that jurisdiction to consi r th merits of AAR's argument.

Respectfull s mi ,

By: u \SEAN M. MCDÕNOUGH

FLA. BAR NO. 896446

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

105 East Robinson Street - 4'h FloorOrlando, Florida 32801(407) 423-7287

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CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been furnished to JOHN Y. BENFORD,

ESQUIRE, Benford Law Firm, P.A., 1065 West Morse Blvd., Suite 101, Winter Park,

FL 32789 (ivb@ivblaw.com); GREGORY K. MAUSSR, ESQUIRE, The Law Ofc of

Gregory K. Mausser, (Attorneys for Plaintiff), 5224 W. State Road 46, PMB #343,

Sanford, Florida 32771; NICHOLAS A. SHANNIN, ESQUIRE, Page, Eichenblatt,

Bernbaum & Bennett, P.A., (Attorneys for Plaintiff), 214 East Lucerne Circle, Orlando,

Florida 32801, (nshannin@floridalawonline.com); RICHARD WOMBLE, ESQUIRE,

AMY BAKER, ESQUIRE, Rissman Barrett Hurt Donahue & McLain P A (Attorneys

for DeCillis), 201 E Pine Street, Ste. 1500, Orlando, Florida 32801-2729;

(rsw.service@rissman.com) (alb.service@rissman.com); and ALBERT D. GIBSON,

ESQUIRE, Blank Rome LLP (Attorneys for Simmons), 1200 N Federal Hwy Suite 312,

Boca Raton, Florida 33432-284 (agibson bl2 r)me.com); by electronic mail delivery

on December 6, 2012.

SEAN M Mc ONOUGH, ESQUIREFlorida Bar No. 896446Wilson Elser Moskowitz Edelman & Dicker LLPPost Office Box 531086Orlando, Florida 32853-1086407-423-7287 - Phone407-648-1376 - FacsimileAttorneys for Defendant, AARMANUFACTURING, INC.

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CERTIFICATE OF COMPLIANCE

I HEREBY certify that the foregoing jurisdictional brief complies with the

font requirements of Fla. R. App. P. 9100.

SEAN M. McDO OUGH, ESQUIRE

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Appendix

AAR Manufacturing, Inc. v. Matrix Composites, Inc.,98 So. 3d 186 (Fla. 5'" DCA 2012)

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT JULY TERM 2012

NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARlNG ANDDISPOSITION THEREOF |F FILED

AAR MANUFACTURING, INC., et al.,

Petitioners,

v Case No. 5D11-3802

MATRIX COMPOSITES, INC.,

Respondent./

Opinion filed September 7, 2012

Petition for Certiorari Review of OrderFrom the Circuit Court for Brevard County,George W. Maxwell lil, Judge.

Sean M. McDonough of WilsonElser Moskowitz Edelman & DickerLLP, Orlando, for Petitioner, AARManufacturing.

Nicholas A. Shannin of Page,Eichenblatt, Bernbaum & Bennett,PA, Orlando, and John Y. Benfordof Benford Law Firm, P.A.,Orlando, for Respondent.

PER CURIAM.

Petitioner, AAR Manufacturing, Inc. ("AAR"), seeks certiorari relief from the trial

court's non-final order denying its motion for a protective order in this trade secret

misappropriation action. Pursuant to the motion, AAR sought to prevent the discovery

of its own trade secrets until such time as Respondent, Matrix Composites, Inc.

("Matrix"), had identified with reasonable particularity the trade secrets allegedly

misappropriated by AAR, as required by the terms of the parties' agreed-upon discovery

order. Following an evidentiary hearing, thgtrial court denied AAR's motion, finding that

Matrix had identified with reasonable particularity its trade secrets related to: (1) the

trapped rubber molding process; (2) the resin transfer molding process; and (3)

compression molding of continuous fiber thermoplastic composite. The trial court

ordered AAR to produce within sixty days all documents requested in Matrix's first

request for production.

We are compelled to grant the petition to the extent the trial court concluded that

Matrix identified with reasonable particularity the trade secrets associated with the resin

transfer molding process and compression molding of continuous fiber thermoplastic

composite. It is clear from the record that the parties and the trial court agreed the

evidentiary hearing below was to be limit olely to the trade secrets related to the

trapped rubber molding process. Matrix's 'identification of the trade secrets associated

with the resin transfer molding process and compression molding of continuous fiber

thermoplastic composite was not before the trial court for its consideration. Accordingly,

the trial court's order is overbroad to the extent that it encompasses these two trade

secret areas. However, we deny the instant petition to the extent that AAR challenges

the trial court's determination that Matrix identified with reasonable particularity its trade

secrets involving its trapped rubber molding process because we conclude that there

has been no departure from the essential requirements of the law. See McDonald's

Rests. of Fla., Inc. v. Doe, 87 So. 3d 791, 793 (Fla. 2d DCA 2012).

Furthermore, we reject AAR's arguinent that the trial court departed from the

essential requirements of the law by failing to make a threshold finding that Matrix's

2

allegedly misappropriated trade secrets actually existed before ordering AAR to disclose

its own trade secrets. In trade secret misappropriation cases, a plaintiff is required to

identify with reasonable particularity the trade secrets at issue before proceeding with

discovery. See Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1322,

1324 (S.D. Fla. 2001) (noting difference between trade secret misappropriation cases

and cases involving trade secret privilege, and explaining trade secrets are ultimate

issue to be decided by court in misappropriation cases). To the extent that Revello

Medical Management, Inc. v. Med-Data Infotech USA, Inc., 50 So, 3d 678 (Fla, 2d DCA

2010), can be read to require a threshold finding as to the existence of the trade secret

in misappropriation cases, we reject that notion.

PETITION GRANTED in part: DENIED l'n part,

LAWSON, EVANDER and COHEN, JJ., concur.

3

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

AAR MANUFACTURING,INC., ET AL.,

Petitioner,

v. CASE NO. 5D11-3802

MATRIX COMPOSITES,INC.,

Respondent./

DATE: October 19, 2012

BY ORDER OF.THE COURT:

ORDERED that Petitioner's Motion for Rehearing, Certification, and

Rehearing En Banc, filed September 21, 2012, is denied.

I hereby certify that the foregoing is(a true copy of) the original Court order.

PAMELA R. MASTERS, CLERK %ño*

cc:

Nicholas A.Shanrjin Gregory K.Mausser Thomas T.SteeleSean M.McDonough John Y.Benford Albert D.Gibson

M A N D A T Efrom

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

THIS CAUSE HAVING BEEN BROUGHT TO THlS COURT BY APPEAL OR BY PETITION, AND

AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION OR DECISION;

YOU ARE HEREBY COMMANDED THAT FURTHER PROCEEDINGS AS MAY BE REQUIRED

BE HAD IN SAID CAUSE IN ACCORDANCE WITH THE RULING OF THIS COURT ATTACHED HERE

TO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE

AND LAWS OF THE STATE OF FLORIDA.

WITNESS THE HONORABLE RICHARD B. ORFINGER, CHIEF JUDGE OF THE DISTRICT

COURT OF APPEAL OF THE STATE OF FLORIDA, FIFTH DISTRICT, AND THE SEAL OF THE SAID

COURT AT DAYTONA BEACH, FLORIDA ON THIS DAY.

DATE: October 19, 2012

FIFTH DCA CASE NO.: 5D 11-3802

CASE STYLE: AAR MANUFACTURING, INC., ET AL. v.

COUNTY CF ORIGIN: Brevard

TRIAL COURT CASE NO.: 05-2007-CA-020904-X

I hereby certify that the foregoing is(a true copy of) the original Court mandate.

CW\AL

PAMELA R. MASTERS, CLERK %Fho*

cc:

Nicholas A.Shannin Sean M.McDonoughClerk Brevard

MATRIX COMPOSITES, INC.

John Y.Benford