Motion to Compel in INTHINC TECHNOLOGY SOLUTIONS, INC . vs MIX TELEMATICS NORTH AMERICA, INC.| Trellis.Law

On June 12, 2014 a Motion-Secondary was filed involving a dispute between and for OTHER CIVIL, INTELLECTUAL PROPERTY in the District Court of Tarrant County.

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048-272569-14 FILED
TARRANT COUNTY
7/20/2014 6:40:08 PM
THOMAS A. WILDER
CAUSE NO. 048-272569-14 DISTRICT CLERK

INTHINC TECHNOLOGY § IN THE DISTRICT COURT
SOLUTIONS, INC. §
§
Plaintiff, §
§
v. § 48th JUDICIAL DISTRICT
§
MIX TELEMATICS NORTH §
AMERICA, INC., §
§
Defendant. § TARRANT COUNTY, TEXAS

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION
TO COMPEL AND FIRST SUPPLEMENT TO ITS MOTION TO COMPEL

Defendant, MiX Telematics North America, Inc. ("MiX" or "Defendant"), by and through

undersigned counsel, hereby files this Response in Opposition to the Motion to Compel filed by

Plaintiff, inThinc Technology Solutions, Inc. ("inThinc" or "Plaintiff") on July 14, 2014 as well

as the Supplement to that motion filed on July 16, 2014 (collectively, the "Motion"), and states:

I. INTRODUCTION

MiX has produced close to 4,000 pages of documents over the course of three (3) weeks

pursuant to this Court's expedited discovery orders, and its attorneys have reviewed over 11,500

pages produced by inThinc in this process. Rather than working in good faith with the

undersigned in an attempt to resolve discovery issues, counsel for inThinc insists on filing

Motions to involve this Court, despite the fact that inThinc: (i) has not timely produced discovery

throughout the pendency of this litigation, and (ii) has failed to timely file/serve a privilege log

or withholding statement relative to materials addressed in Defendant's Motion to Compel dated

July 2, 2014. Notwithstanding its own unclean hands, Plaintiff's Motion, inclusive of the

Supplement, seeks to compel production of roughly 130 documents – amounting to hundreds of

pages – of mostly privileged information. In good faith, and without waiving its right to object

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to production of similarly-themed documents at a later date should the need arise, MiX has

agreed to produce a large portion of those documents in one form or another.

The remaining documents fall within the scope of the attorney-client, work-product and

trade secret privileges and are not discoverable, or in the alternative, have been produced as part

of MiX's July 17, 2014 production.1 inThinc is aware of the privileged nature of the sought-after

documents, and despite having failed to identify a particular need for the documents,

nevertheless seeks to compel production. inThinc's Motion should be denied for the following

reasons.

II. ARGUMENT

A. The Motion to Compel and the Supplement thereto are moot to the extent the
documents were produced in MiX's supplemental production on July 17, 2014 or
are being produced in accordance with the chart provided to counsel.

On July 11, 2014, this Court entered its Order on Defendant's Motion to Compel and

Order on Plaintiff's Motion to Compel (collectively the "Discovery Orders"), directing the parties

to make a supplemental production of documents. Plaintiff's Motion is moot, as many of the

documents sought in connection with the Motion were produced in connection with MiX's July

17, 2014 supplemental production responsive to the Discovery Orders.2 However, the parties

will need to work in good faith to determine which, if any, of the remaining documents are still

at issue, which will take some time given the volume. The Court should require this process to

occur to narrow the issues it may still be required to consider—however these documents are not

essential to Inthinc's case and so this issue should be addressed after the Temporary Injunction

1
MiX is prepared to work with inThinc to correlate these bates numbers if inThinc still believes materials have been
withheld.
2
In the supplement to the Motion to Compel, inThinc references a "novel" that Skip Kinford was allegedly writing
to MiX executive Charles Tasker, and seeks production of the literalor figurative novel. To the best of the
undersigned's knowledge and belief, and despite its efforts, the undersigned cannot locate or identify the requested
document. However, as stated above, the undersigned will work with inThinc to provide the requested material.

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hearing. MiX is prepared to move forward with the Temporary Injunction hearing, which

inThinc requested on an expedited basis, and Plaintiff cannot show that these documents are

necessary for the limited issues to be addressed therein.

In addition, in good faith, MiX has agreed to produce a significant portion of the

remaining documents Plaintiff seeks. Contemporaneous with the filing of this Response, MiX

has provided to inThinc a chart representing the documents sought by Plaintiff and Mix's

response to each document sought. To the extent Plaintiff is not satisfied with the July 17, 2014

production or the forthcoming production in response to the Motion, MiX hereby requests that

this Court conduct an in camera review of the disputed documents and allow sufficient time for

MiX to seek appellate consideration of the issues, to the extent its privilege objections are

overruled.

B. Correspondence between Jonathon Moulton regarding MiX's search for a new CEO
will be produced under the Highly Confidential designation.

As stated above, certain documents are being produced to inThinc in good faith. MiX

agrees to produce the aforementioned documents under the Highly Confidential designation.

MiX does so in a good faith attempt to further discovery in this action, without waiving its right

to object to production of similarly-themed documents at a later date should the need arise. By

agreeing to produce these documents, MiX is not acknowledging that the Agreed Protective

Order sufficiently protects its interests with regard to other trade secrets. See In re Continental

General Tire, Inc., 979 S.W. 2d 609, 614 (Tex. 1999) (stating that "the fact that a party is willing

to produce certain information under a protective order does not mean that it has waived its right

to assert Rule 507 about other information which it may regard as more competitively sensitive

or less necessary for plaintiff's case").

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C. The Supplement to the Motion to Compel was filed without a good faith conference
and should be stricken.

Plaintiff's Supplement to its Motion to Compel filed on July 16, 2014 should be stricken.

While counsel for Plaintiff certifies that she made a good faith effort to confer with the

undersigned prior to the filing of the Supplement, such an allegation is simply false. Plaintiff's

counsel's actions are in violation of Rule 191.2, Texas Rules of Civil Procedure, requiring that:

Parties and their attorneys are expected to cooperate in discovery
and to make any agreements reasonably necessary for the efficient
disposition of the case. All discovery motions or requests for
hearings relating to discovery must contain a certificate by the
party filing the motion or request that a reasonable effort has been
made to resolve the dispute without the necessity of court
intervention and the effort failed.

Id. Pursuant to Rule 191.3(e), the making of such a false certification is sanctionable. Ironically,

in the underlying Motion to Compel, Plaintiff cites to In re Alford Cehvrolet-Geo, 997 S.W. 2d

173, 184 (Tex. 1999) for the proposition that parties are expected to cooperate in discovery.

However, as stated above, inThinc: (i) has failed to timely produce discovery throughout this

litigation, (ii) has failed to advise counsel of the documents it is withholding by failing to

file/serve a privilege log relative to documents withheld in its June 30, 2014 production, and (iii)

has failed to confer in good faith prior to filing Motions to Compel discovery.

Plaintiff also cites to Alexson, Inc. v. McIlhaney, 798 S.W.2d 550, 555 (Tex. 1990),

stating that "the purpose of discovery is to seek the truth so disputes can be decided on the facts

revealed not concealed." Plaintiff ignores, however, the very next sentence of that case, stating

that a party "cannot use one hand to seek affirmative relief and with the other lower an iron

curtain of silence around the facts of the case." Here, Plaintiff is attempting to use discovery as a

sword and a shield, chastising MiX for allegedly failing to produce documents when it is guilty

of the same alleged acts. This gamesmanship should not be tolerated by this Court.
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D. MiX is not required to produce documents evidencing its trade secrets, and MiX has
not "waived" or abandoned any trade secret privilege or protection.

Plaintiff seeks to discover MiX's trade secret information. Plaintiff asserts that because

certain information was allegedly given to Skip Kinford by MiX while he was an employee of

inThinc, the information has lost its trade secret protection. That is false. Plaintiff relies on two

cases for the proposition that "when a party voluntarily discloses information to third parties

without taking steps to secure/protect any purported proprietary nature of that information, that

information may not qualify for trade secret protection." The two cases are J.C. Kinley Co. v.

Haynie Wire Line Service, Inc., 705 S.W. 2d 193, 197-98 (Tex. App. – Houston [1st Dist.] 1985)

and Daily International Sales Corp. v. Eastman Whipstock, Inc., 662 S.W. 2d 60, 63 (Tex. App.

– Houston [1st Dist.] 1983, no writ). However, this principal is not expressed in either case, and

Plaintiff's reliance on those cases is misplaced. Additionally, both cases are easily distinguished.

In Haynie, the court found that there could be no trade secret protection because there

was "undisputed evidence showing a total lack of any precautions taken by Kinley to maintain

the secrecy" of the trade secrets. Id. at 197-98. In Eastman, the issue for the court was whether

the trade secret was placed "in the public domain." Id. at 63. In both cases, the record was

replete with evidence that the trade secret had essentially been abandoned by the party's failure to

take reasonable precautions to protect it from the masses. That is not the case here.

Here, trade secret information was provided by MiX to Skip Kinford only, no one else.

He was provided with business plans, MiX financials, budget summaries, income statements,

compensation plans and commission schedules, which qualify as trade secrets. The law is clear

that "protection will be awarded to a trade secret holder against the disclosure or unauthorized

use by those to whom the secret has been confided under either express or implied restriction of

non-disclosure…" Phillips v. Frey, 20 F.3d 623, 629 (5th Cir. 1994) (collecting cases). In fact,
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the United States Supreme Court has even held that the necessary element of secrecy with

respect to a trade secret is not lost if the holder reveals it to another in confidence and under an

implied obligation not to use or disclose it. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475

(1974); see also Hyde Corp. v. Huffines, 314 S.W.2d 763, 770 (Tex. 1958) (holding that an

express agreement not to disclose a trade secret was not necessary where the actions of the

parties and the nature of their relationship, taken as a whole, established the existence of a

confidential relationship).

Phillips, a case cited by Plaintiff, along with Kewanee and Huffines, make clear that if

trade secret information is given to a third party and there is an implied obligation not to disclose

it, the trade secret does not lose its privileged nature or protection. That is the case here. MiX

provided the trade secret information to Kinford with the expectation that he would not disclose

it to anyone. That is clear based on the parties' dealings, their relationship and the surrounding

circumstances. Accordingly, MiX's trade secrets are entitled to protection.

E. The documents sought by Plaintiff contain trade secrets and are protected from
disclosure.

In re Continental General Tire, Inc., 979 S.W. 2d 609 (Tex. 1999) is the seminal Texas

Supreme Court case regarding the test for production of trade secrets. There, the Court stated

that the trade secret privilege accommodates two competing interests: (1) it recognizes that trade

secrets are an important property interest, worthy of protection, and (2) it recognizes the

importance placed on fair adjudication of lawsuits. Weighing those competing interests, the

Court established the following procedure: If a party seeks trade secret protection, the party

resisting discovery must establish that it is a trade secret. The burden then shifts to the

requesting party to establish that the information is necessary for a fair adjudication of its claim.

In re Continental General Tire, Inc., 979 S.W. 2d at 612.
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1. The documents sought to be compelled by Plaintiff are MiX's trade secrets

Plaintiff seeks to compel production, inter alia, of the following types of documents:

MiX's business plans; MiX's three year report (including client names and financial information);

MiX's proposed budget for future fiscal year operations current and prospective customer lists

and information; and MiX employee recruitment methods. These documents qualify as trade

secrets and MiX has a privilege to refuse to disclose them, as set forth below.

A trade secret is information, including a formula, pattern, compilation, program, device,

method, technique, process, financial data, or list of actual or potential customers that (1) derives

independent economic value from its secrecy (i.e. it is not generally known or readily

ascertainable by proper means), and (2) that a party has made reasonable efforts to keep secret.

See CPRC § 134A.002(6); Computer Assocs. Int'l v. Altai, Inc., 918 S.W. 2d 453, 455 (Tex.

1996). This is exactly the type of information that MiX seeks to protect here.

Courts weigh six (6) factors in determining whether information is trade secret:

(1) the extent to which the information is known outside of the
business; (2) the extent to which it is known by employees and
others involved in the business; (3) the extent of measures taken to
guard the secrecy of the information; (4) the value of the
information to the business and to its competitors; (5) the amount
of effort or money expended in developing the information; (6) the
ease or difficulty with which the information could be properly
acquired or duplicated by others.

In re Union Pac. R.R., 294 S.W. 3d 589, 592 (Tex. 2009) (citations omitted).

Here, the documents MiX seeks to protect from disclosure contain information that is not

known outside of its business. The information is also not generally known even to employees

of the business, but is limited to high level executives. The information is kept secret by MiX

and only disclosed in the course of business to those who must have access to the information.

The information sought by inThinc is invaluable to MiX. If competitors (like inThinc) had
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access to the information, MiX would be severely prejudiced. The methods and techniques at

issue have been developed by MiX through trial and error over the years. The information is not

available through other means because MiX has kept it confidential.

Additionally, a valid proprietary interest may justify denying or limiting discovery

requested by a direct competitor. Automatic Drilling Machines, Inc. v. Miller, 515 S.W. 2d, 256

(Tex. 1974) (granting mandamus and quashing court's order that trade secrets be disclosed

because the parties were in direct and active competition with each other). inThinc is a direct

competitor of MiX. Disclosure of the information would severely prejudice MiX and would give

inThinc an undeserved and unfair advantage in the marketplace in which both companies

compete.

2. inThinc has not met its burden of establishing that the documents are
"necessary" for a fair adjudication of its claims.

A trade secret should be disclosed only if doing so is necessary to prevent fraud or

injustice; that is, disclosure is required only if the information is necessary for fair adjudication

of a claim or defense. In re Continental General Tire, Inc, 979 S.W. 2d at 612. To satisfy the

test for necessity, the requesting party must show with specificity that the presentation of the case

on the merits will suffer without the information, likely leading to an unjust result. In re Union

Pac. R.R., 294 S.W. 3d at 592; John Paul Mitchell Sys. v. Randalls Food Mkts., Inc., 17 S.W. 3d

721, 739 (Tex. App. – Austin 2000) (stating that party must show that trade secret disclosure is

necessary, not just useful, for determining central issues); In re Continental Tire N. Am., Inc.,

74 S.W. 3d 884, 885-86 (Tex. App. – Eastland 2002) (plaintiff did not establish entitlement to

discover trade secrets merely by making allegation that information was reasonably calculated to

lead to discovery of admissible evidence).

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inThinc has not stated with specificity why the trade secret information is necessary for

the Court to adjudicate its claims. See In re Continental General Tire, Inc., 979 S.W. 2d at 615

(granting mandamus relief where party resisting discovery established that the requested

information was a trade secret, and the burden shifted to the party requesting discovery to

establish that the information was necessary for a fair adjudication of its claim or defense, and

failed to do so); In re Bass, 113 S.W. 3d 735, 745-46 (Tex. 2003) (holding that plaintiff did not

meet the burden and accordingly it was an abuse of discretion to order defendant to produce

trade secrets); In re Bridgestone/Firestone, Inc., 106 S.W. 3d 730, 732-33 (Tex. 2003) (holding

that trade secret should not be produced because plaintiff failed to meet its burden of necessity).

In fact, the Motion to Compel does not even address why the information is necessary.

While discovery rules are liberal to allow the free flow of information, the Texas Supreme Court

has explicitly stated that "Rule 507 clearly contemplates a heightened burden for obtaining trade

secret information." inThinc cannot meet the heightened burden here and is not entitled to

discover MiX's trade secrets. In re Continental General Tire, Inc, 979 S.W. 2d at 614. inThinc

has not, and cannot, meet the burden required of it by In re Continental General Tire, Inc., In re

Union Pac. R.R., In re Bass and Randalls Food.

F. The attorney-client and work-product privileges protect the information and
documents sought by inThinc from disclosure, and there was no waiver of the
privileges here.

inThinc seeks production of certain documents that MiX has objected to on the basis of

the work-product of attorney-client privileges. For Mix's objections to each specific document,

MiX directs Plaintiff to the chart provided to counsel, where MiX makes specific objections and

states the basis for each. Generally, however, MiX stands by its objections (unless stated

otherwise on the chart) and states as follows.

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inThinc seeks production of the drafts/redlines of Skip Kinford's employment agreement,

which were sent by Akerman lawyers to MiX prior to Kinford's employment with MiX. At the

time, MiX was represented by the undersigned. The drafts of the agreement are protected by the

work-product and attorney-client privileges. See TRCP § 192.5; TRE § 503; Pittsburgh Corning

Corp. v. Caldwell, 861 S.W. 2d 423, 425 (Tex. App. – Houston [14th Dist.] 1993) (attorney

client privilege covers whole document, not just parts relating to legal advice). inThinc also

seeks to compel production of internal emails amongst MiX employees wherein revisions to the

employment agreement – suggested by its attorneys – are discussed. These emails are similarly

protected as advice of counsel. Other emails sought by inThinc are simply communications

between MiX employees and Akerman attorneys. They are absolutely protected as well.

Additionally, inThinc seeks to compel production of communications between MiX and

Kinford prior to Kinford's employment with MiX. MiX has objected to production on the basis

of the attorney-client and work product privileges because they contain the opinions and legal

analysis of MiX's counsel. The work-product and attorney-client privileges protect the

documents from disclosure.

The pivotal document sought by inThinc is a memorandum written by MiX's attorneys

(i.e. the undersigned) assessing the enforceability of the non-compete provision at issue here (the

"Memorandum"). It is a legal analysis prepared by Akerman for MiX. It falls within the bounds

of an attorney-client communication, and is "core work product" pursuant to TRCP § 192.5(b)(1)

(stating that core work product is the work product of an attorney containing that person's mental

impressions, opinions, conclusions or legal theories). Core work product is not subject to the

need-and-hardship exception to production. The protection is absolute. Occidental Chem. Corp.

v. Banales, 907 S.W. 2d 488, 490 (Tex. 1995). The work product doctrine promotes the

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adversary system by safeguarding the fruits of an attorneys' mental impressions and preparations

from the other party. Wiley v. Williams, 769 S.W. 2d 715, 717 (Tex. App. – Austin 1989). The

adversary system would be turned on its head if inThinc obtained a document containing the

undersigned's legal analysis of the very subject matter of this action. This is exactly the type of

document that is protected from disclosure.

To the extent inThinc argues that Mix has waived the privilege that protects the

Memorandum from production, such an assertion is without merit. There has been no waiver

because there was never an intent to waive the privilege, and because at all times material hereto,

the Memorandum was distributed with the understanding that it remain confidential to those who

it was given. A communication is confidential if "it is not intended to be disclosed to third

persons other than those persons to whom the disclosure is made in furtherance of the rendition

of professional legal services to the client or those reasonably necessary for the transmission of

the communication." In re Small, 346 S.W.3d 657, 662 (Tex. App. – El Paso 2009); Tex. R.

Evid. 503(a)(5). Here, disclosure of the Memorandum was only made to Skip Kinford and an

agent of Mix, a the recruiter MiX employs, both of whom understood that the memorandum was

to remain confidential. The Memorandum was made in furtherance of Akerman's representation

of MiX, and its disclosure to Skip Kinford and the recruiter furthered that purpose.3

In re Small is instructive. There, a party sought to compel production of attorney-client

privileged emails that were forwarded to a third party, arguing waiver. However, the third party

understood that the communications were confidential and made in furtherance of the attorney-

3
This is akin to a situation in which he "allied-litigant" privilege has been found to apply. The privilege applies
when the parties have separate counsel but engage in a common legal enterprise. In re XL Specialty Ins. Co., 373
S.W. 3d 46, 52 (Tex. 2012). Here, the documents and communications at issue fit that mold. Kinford has counsel
in a related case in California.MiX had counsel as well. The subject matter of their respective representations was
similar (i.e. the enforceability of the non-compete agreement at issue); see also Texas Rule of Evidence
503(b)(1)(C).

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client relationship. The Court held that there was no waiver by disclosure, and that the trial court

abused its discretion by ordering the emails disclosed on this ground. Id. at 664.

Moreover, there was no intent to waive the privilege here, thus, no waiver exists. The

legislative intent and history of the current discovery rules makes clear that a finding of non-

waiver is favorable. "Promulgators of the current rules of discovery made a significant effort to

change prior discovery procedures in order to avoid waiver by a party when privileged materials

or information may be at issue." In re Certain Underwriters at Lloyd's London, 294 S.W. 3d 891,

904 (Tex. App. – Beaumont 2009) (emphasis added). The Court in that case cites to Rule

193.3(d), comment 4, for support, which states that "the focus is on the intent to waive the

privilege, not the intent to produce the material or information." Id; see also In re Lincoln Elec.

Co., 91 S.W. 3d 432, 437 (Tex. App. – Beaumont 2002) (pointing to the same Rule and comment

for the same proposition and stating that Texas discovery rules have an "overall spirit of non-

waiver" which is "apparent" throughout). "It is clear to use that the Rule was intended to restrict

the waiver doctrine in a variety of situations that might arise from inadvertent disclosures of

privileged documents." Lloyd's London, 294 S.W. 3d at 904; In re AEP Texas Central Co., 128

S.W. 3d 687, 693 (Tex. App. – San Antonio 2003) (stating that the focus of the inadvertent

disclosure rule is on the intent to waive the privilege, not the intent to produce the information or

material, and holding that relators that had no actual knowledge of the inadvertent disclosure did

not waive any privilege); In re Living Centers of Texas, Inc., 175 S.W. 3d 253, 260 (Tex. 2005)

(stating that "under the current rules of discovery, inadvertent disclosure does not automatically

waive a claim of privilege" and holding that "a party's inadvertent failure to utilize its own

internal procedures for identifying privileged documents does not automatically waive the

privilege").

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Finally, "courts generally hold that disclosures that occur outside the context of a judicial

proceeding do not implicitly waive the privilege." Sullivan v. Warminster Township, 274 F.R.D.

147, 154 (E.D. Pa. 2011). Such is the case here. The disclosure of the Memorandum to Skip

Kinford and the recruiter took place outside of the confines of the court system. Courts favor no

waiver in such a situation. "Where… disclosures of privileged information are made

extrajudicially and without prejudice to the opposing party, there exists no reason in logic or

equity to broaden the waiver beyond those matters actually revealed." Id. at 154 (citations

omitted). Disclosure to an adversary is the operative inquiry. Courts hold that "disclosure to a

third party only waives the work-product privilege if it permits an adversary to gain access to the

information… [m]ost courts hold that to waive the protection of the work-product doctrine, the

disclosure must enable an adversary to gain access to the information." Id. at 150 (citations

omitted). Here, disclosure was not made to an adversary. It was made to two people in

confidence, who understood the privileged nature of the communication and their obligation to

keep it confidential. The Court should thus find no waiver here, keeping with the spirit and

intent of non-waiver under Texas law.

Alternatively, as set forth below, should Texas law not apply, Florida law also provides

that no waiver of the attorney-client or work-product privileges has occurred, protecting the

aforementioned documents from production.

G. Florida law protects the documents sought to be compelled by Plaintiff against
disclosure based on the attorney-client and work-product privileges, and there was
no waiver of the privileges here.

The communications at issue were sent in Florida, from a Florida attorney, to a Florida

client. Thus, it is unclear which state's privilege law should apply. To the extent Florida law

applies, it protects the documents sought from production.

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Visual Scene, Inc. v. Pilkington Brothers, PLC, 508 So. 2d 437 (Fla. 3d DCA 1987) is

instructive. There, petitioner sought review of an order compelling it to produce certain

documents which it claimed were protected by the attorney-client and work-product privileges.

Id. at 439. The Court, dissecting Florida's attorney-client and work-product privilege

protections, ultimately found that the trial court committed error in ordering production of the

documents. Of utmost importance is the Court's discussion of the "common interest," "joint

defense," or "pooled information" privilege. The privilege is broader under Florida law than in

Texas. In Florida, when a party and/or his counsel makes a statement to the other party or other

attorney whose interests are aligned, "the attorney for the one party becomes the attorney for the

other," making their communications privileged. Id. at 440. Thus, the confidentiality enjoyed by

a client with his own attorney is extended to communications with any attorney representing

another in the "group." Id. Courts have expressly recognized common interests between co-

parties to potential litigation and parties with the same interests in separate actions. Id. (citations

omitted). The privilege is extended to those with merely some interest in common. Id. at 441

(citations omitted).

The Court in Visual Scene also made note of how the common interest privilege applies

differently to the attorney-client and work-product privileges. "The work product privilege is

designed to promote the adversary system by protecting an attorney's trial preparations, not

necessarily from the rest of the world, but from an opposing party in litigation." Id. at 442

(citations omitted). The privilege is intended to protect the legal craftsman in the product of his

labors." Id. Thus, the Court expressly recognized that disclosure of an attorneys' work product

to a third party does not waive the work-product privilege if the document or communication at

issue was disclosed to someone whose interests were aligned. Id. Here, the Memorandum at

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION
TO COMPEL AND FIRST SUPPLEMENT TO ITS MOTION TO COMPEL Page 14 of 18
Cause No. 048-272569-14;
Inthinc Technology Solutions, Inc. v. Mix Telematics North America, Inc.
048-272569-14

issue was sent by MiX to Skip Kinford and Jonathan Moulton, all three of whom shared the

common interest of determining whether each had any potential liability based on the non-

compete provision in Kinford's inThinc Employment Agreement.

The Court expressly stated that a disclosure "does not waive the work product privilege

unless it is inconsistent with the maintenance of secrecy from the disclosing party's attorney [that

is, that it] substantially increases the possibility of an opposing party obtaining the information."

Id. (citations omitted). The determinative issue is whether the disclosure is consistent with

"maintaining secrecy against opponents." Id. (citations omitted) (emphasis added). Here, it is

clear that the communication was not sent to inThinc's counsel, or anyone from inThinc who

would have an interest adverse to that of MiX, Kinford, and Moulton. Moreover, the

Memorandum at issue here is "opinion work product," as opposed to "fact work product."

Opinion work product is absolutely privileged. State v. Rabin, 495 So. 2d 257, 262 (Fla. 3d

DCA 1986) (holding that the state was not entitled to opinion work product pursuant to

investigative subpoena).

Additionally, the Court's treatment of what cons

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July 20, 2014

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June 12, 2014

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Motion-Secondary: INTHINC TECHNOLOGY SOLUTIONS, INC . vs MIX TELEMATICS NORTH AMERICA, INC.

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