Suppose a person signs an NDA. Then, that person is asked to testify in court in a criminal case regarding the acts covered in the NDA. Can the events and acts that were not to be disclosed according to the agreement then be revealed in testimony?
In general, the law trumps contracts. And most of the contracts I had to sign with my employer included a line that said that if the law invalidated part of this contract, the rest was still in force.
Also, courts can do things confidentially.
“One way around them is for the party to be compelled to testify under oath in a criminal or civil case. A private confidentiality agreement does not prevent being compelled by law to give testimony as part of a legal proceeding. In a criminal case or before a grand jury, the government can compel the testimony through the use of a subpoena. In a civil case, a person with relevant knowledge can be forced to testify by subpoena. A private NDA is not a defense to giving testimony compelled by law.
One of the things that make an NDA unenforceable is if the protected knowledge is already publicly known. If an officer of the court has a basis for their question, then that information is effectively no longer confidential. Also, an NDA can’t require a signee to do anything illegal, which refusing to answer a question in court may well be.
All that being said, common wisdom among those who encounter NDAs in their industry is that NDAs are generally unenforceable and easily gotten around.
It gets complicated when the NDA is with the government, as there’s often a statute or executive order authorizing it.
Non-disclosure agreements are far from “generally unenforceable” and in the case where revealing information has substantial fiscal or reputational impacts the consequences can be ruinous just from legal fees alone. And while an NDA cannot prevent a court from compelling testimony under oath, it is also not invalidated by default by subpoena. You should be very circumspect about signing NDAs because they can often restrict you from ‘revealing’ information that is already widely known or using specified information in a work product even if it is already in the public domain.
NDAs used to protect criminal or abusive behavior in exchange for payment are against the public interest and are probably not enforceable (i.e. you cannot legally buy a victim’s or witnesses’ silence with respect to testimony about criminal acts) but it is almost always the case that the person restrained by the NDA lacks the resources for an protracted legal conflict while the wealth person being ‘protected’ can drag the victim through the courts at length.
Stranger
Isn’t that a Non-Compete not an NDA?
(I recall a case in Canada established that Non-Competes that are overly broad are invalid)
Isn’t an NDA that demands a person not disclose information about a crime essentially obstruction of justice or witness tampering?
A non compete is about not working for a competitor. An NDA is about not revealing information.
A non-compete agreement is generally part of an explicit employment contract which provides narrowly constrained conditions on where an employee can go after leaving their current employment, i.e. someone at a senior position at IBM cannot leave and take a comparable position or responsibilities at Hewlett-Packard Enterprise or Hitachi Vantara. Non-competes cannot be so broadly defined as to prevent the employee from seeking available employment in their field, and in some states may not be enforceable at all except as a limitation to the compensation that the employee may be otherwise contractually owed upon termination of employment (i.e. a ‘golden parachute’). I’ve worked for companies that tried to impose very broad non-compete agreements and/or ‘loyalty clauses’ on all employees including those with no contract in “at-will” employment states, and have been advised by multiple employment lawyers that there is no obligation to sign them (i.e. termination for not signing is not a valid response and may be viewed as prejudicial) and that they are not enforceable without unforced agreement and without equitable consideration, although a former employer might try to make enough trouble with a prospective new employer out of spite which is its own form of employment harassment.
Having an NDA is not a shield against being required to testify under subpoena to witnessing or having knowledge of criminal action. The NDA itself is not “obstruction of justice” or “jury tampering”, which are defined as active steps that may be taken by a party to interfere with the investigation, testimony, or deliberation regarding a criminal act and indictment, but it cannot be used by a potential witness to evade testimony in court. NDAs do have legitimate purposes in the intellectual property world in protecting the exchange or reveal of trade secrets or confidential data to the broader world under stated penalties, but their use to ensure the silence of people who have been subject to or witness of harassment, abuse, sexual assault, et cetera is entirely contrary to the legitimate purpose and generally against public policy. However, having an NDA in place may impede investigation, and someone who breaks the agreement by revealing information protected by an NDA does not automatically have protection against civil recourse even if they are legally required to provide information or testify in court. So, they are often used of tools of litigious intimidation (i.e. SLAPP suits) even if they are not enforceable because the holder of the NDA can force a signatory into court at length and opprobrious cost.
IANAL, so I’m sure a number of the actual lawyers here can point out exceptions or issues with the language above, but I’ve had to deal with both NDAs on a regular basis and at least the attempt to impose non-compete agreements/clauses (all in the United States; I can’t speak to Europe or elsewhere). Anyone working under an employment contract or being required to sign an NDA for any reason other than direct access to confidential or protected information should consult an employment or intellectual property attorney to make sure their interests are being adequately represented and compensated.
Stranger
Sounds like this must be correct, but at least some of those being victimized (in terms of having their freedom of speech limited) would, I think, have enough money to go to court.
Googling, I cannot find actual trials where the jury ruled against the freedom of speech of the former employee who signed the NDA. I can’t even find a bench trial example. Is anyone aware of one? Is there case law on what happened when it was appealed on first amendment grounds?
It’s not really a 1st Amendment issue insofar as NDAs are agreements between private parties. SCOTUS and lower federal courts have ruled that the US Congress and its assigned government can restrict the ‘free speech’ on the grounds of national security or to otherwise protect critical or privileged government information (although for the most part people with access to information have signed agreements that are akin to a non-disclosure as part of holding a security clearance or employment agreement). But an NDA is generally an agreement between private parties, or between a commercial entity and the government, imposed upon agents of the latter, not something generated by the legislature.
NDAs used to obstruct the reveal of information about a crime are generally against public policy and I would be surprised if contesting such a reveal would hold up in an actual jury trial beyond forcing repayment of whatever compensation was originally offered, but again, many of the parties imposing an NDA on someone have a lot of money and influence where the person bound under the NDA does not. Think of Bill Cosby and the numerous women who have accused him of assaulting them who received what amounts to a ‘hush money payment’ (if the claim is true) with an NDA as part of the settlement. Most if all of these women have neither access to the literal millions of dollars of Cosby, nor a public relations hype machine that can brand them as ‘scorned women’ or dig into their personal history for anything to undermine their apparent credibility while building Bill Cosby up as “America’s Dad” in the public view. If not for an errant comic who offended by the hypocrisy making an almost offhand comment going viral, Cosby would have never been brought to trial or spent a night in prison, and still has not had to account for the dozens of accusations in a court of law. (Nor has his small army of enablers and ‘fixers’ ever been forced to acknowledge and amend for their roles in furthering the alleged assaults and permitting the campaign of serial abuse to continue unabated for decades.)
The NDA, even when not legally enforceable, is a powerful tool in the hands of a well-funded bevy of litigious agents to force an accuser into submission just out of financial and repetitional exhaustion. And it has become used for this purpose as much or more than the legitimate application to protect intellectual property or disclosure of private information.
Stranger
I’ve signed an NDA. It was pretty specific about covering intellectual property owned by my employer, and specifically said that this did not prevent me from sharing information legally required by a state. I didn’t like signing it, but it was a fair attempt on the part of my employer to protect stuff of value to it, stuff that it was perfectly legal and proper for my employer to restrict access to. Nothing in that NDA would have discouraged me from testifying in court about an alleged criminal or abusive behavior.
Most corporate NDAs are about legitimate trade secrets, not about hiding malfeasance.
Agreed, and in that use they are valuable in allowing individuals or companies to share information and perform work with legal protections against the misappropriation of proprietary knowledge and trade secrets. But the question of the o.p. and much of the discussion has clearly been in regard to the use of NDAs to prevent people from testifying about witnessing or being victimized by criminal and abusive behavior.
Stranger
Exactly. As you surmise, I’m interested in how - or IF - the NDAs that were signed to hide the ex-president’s behavior can be broached in the upcoming trial. I think your comments, and some others, indicate that the secrecy and privacy thought to have been purchased are not likely to hold up in court, as testimony of those witnesses are central to the case.