I began to wonder if the signer of an NDA is under oath (in a courtroom, for example) is asked about matters they have agreed not to go public with is still bound to remain silent. Suppose there are financial penalties. Suppose they are being interrogated by the FBI. In the latter case, they cannot lie, but I guess they can remain silent.
The NDA is an agreement between 2 or more people. A subpoena (to testify) is the lawful act of a governmental agency to do or produce an item. One is compelled by process of law, which the NDA can not excuse. Not testifying would cause other problems, such as contempt, perjury possibly, etc.
As I understand it, the boilerplate of an NDA includes the requirement that you cooperate with legal investigations. What difference having that in there is a mystery to me.
The NDA will generally have a provision that allows disclosure in connection with an order from a competent authority (e.g., a court order or an administrative subpoena). Even if that weren’t in there, a court would almost certainly find an implied exception in the NDA to allow for disclosure pursuant to written order.
The FBI interview is a more interesting question, since I don’t think you have any legal obligation to answer their questions. My guess is that you refuse to answer and then they subpoena you to testify and then you have to.
If the FBI suspected you knew who killed Jimmy Hoffa, but that you had a NDA to keep quiet, I’m pretty sure you’d hear about the penalties for withholding evidence.
From Wiki…The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding…
emph mine.
Perhaps the NDA could be ruled invalid in its entirety if it was viewed that the NDA required that lawfully required disclosure was disallowed by the agreement. Making it explicit that such required disclosure is part of the NDA avoids such contorted thinking.
IANAL or even play one.
A friend of mine was asked to testify in a case where she was bound by some level of confidentiality. She said fine, but she wanted the protection a subpoena would give her against any action by those she was breaking the confidentiality of.
Would not having one invalidate the NDA? I keep hearing about people using NDAs (along with a cash infusion) to silence victims of abuse. I imagine they “forget” to include that clause, or put it in really fine print.
Most people aren’t lawyers and either can’t afford one or think they can’t afford one, so they don’t understand that an NDA cannot prevent someone from testifying or going to the police.
In general, a contract cannot require a party to disobey the law.
Generally, it part of a contract is voided by law, then just that part of it is void. Like, if you have a contract that has 17 points, and one of them is a thing that the law says you’re not allowed to contract for, the other 16 still stand.
I’m guessing that if enough of the contract were void, or if the part that was void was so central to the point of the contract that the rest didn’t really make sense, then the whole thing might be void, but IANAL.
A party to such an agreement can typically be made to testify via subpoena or administrative demand (at least in an investigation or litigation involving law enforcement, as opposed to purely private litigation), but not necessarily publicly. The subpoenaing party may be required to maintain the confidentiality of the information and not divulge it further, via such means as sealed pleadings.
Would you though? Refusing to answer questions is not the same thing as withholding evidence.
Unless the answers you are withholding are evidence. Witness statements can be evidence.
They’re probably about as protected as someone who admits something to their priest in the confessional. That’s PROVIDED they actually SIGN the NDA of course.
This sums up the whole issue. The court will invalidate a clause of an NDA or the entirety of the NDA should a party to the NDA try to enforce it due to someone’s lawfully compelled testimony.
If the person voluntary discusses aspects of the NDA they may be in violation. Once the sebpeona comes the can sing like a bird.
The NDAs I’ve been a party to either have a clause acknowledging that legal proceedings allow me to testify or require that I notify the company so that their legal department can weigh in to challenge the subpoena if they deem it necessary.
Not at all true; these are nothing alike.
There are specific laws that prevent a priest from testifying (whether s/he wants to or not) about what someone told them in the confessional; similar (or the same) laws often/usually apply to other similar types of counselors, for conversations when the person is seeking spiritual counsel. This is similar (though not usually exactly the same as) a lawyer can’t testify about conversations with their client. Civil and Criminal courts are bound by these laws and can’t use that kind of testimony at all (obviously can’t compel it either).
An NDA is totally different – it’s just a contract between two private individuals. A criminal court isn’t party to that contract, and, assuming they otherwise have the legal authority to compel testimony, can do so regardless of what the two private individuals have agreed to.
Thanks for the clarification. Of course, the signatures of both parties, indicating that they both understand and agree to the terms of the agreement, would be a requirement I would imagine.
Furthermore, the legal requirement to testify of a judicial subpoena protects the witness from any financial or other penalties that may be included in other parts of the NDA. So the other party to the NDA can’t come after you for testifying under court order.
IANAL but…
If the NDA does not include the “except when compelled by law” then essentially the NDA becomes null and void. What “other points” would it hold up at that point? The core of the NDA is a requirement that leads you to break the law.
It’s not up to the person being compelled to testify whether the testimony is in open court or in private. Although grand juries are private, the witness does not get to pick and choose the venue.
A witness statement is not evidence until they make the statement. If it’s not evidence yet, you are not withholding it. Therefore, refusing to answer questions is not withholding evidence. Hiding or destroying physical evidence or taking steps to make it difficult to find, is withholding. People refuse to talk to the police all the time, and there’s nothing the police can do except beat it out of them.
I suppose a NDA can be between a person with knowledge of another’s “shortcomings”, and the other person’s lawyer, without the other person’s knowledge. But then the question would be - a contract is an exchange of X for Y - She got $X, what does the lawyer get as a benefit? Presuming the lawyer too did not sleep with her, what possible tangible benefit does he get, especially if the contract is written to give the client the benefit? Wouldn’t he need some explicit instruction first? Sounds like a really, really interesting argument for the court.
This is not necessarily true. An NDA may be invoking trade secret protection, which would carry legal obligations for a government official seeking testimony. Hence my point above that the testimony obtained from the witness may have to be kept confidential.