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Non disclosure agreement for knowledge that is already public?

Flushing, NY |

Can a non disclosure agreement be used to keep a specific person from disclosing information that is already public but not well known? Although something is already disclosed does not mean the public is aware. I want to make sure the signer is not the one who blurted it out.

So I am basically asking if a lawyer can draft an agreement that if the signer specifically discloses the information and you can prove that person did, that person would be held liable regardless if that information is secret or not.

For example if I asked a few witnesses how they found out about this secret, and they said so and so told me, can he be held liable for damage even though the secret can be found out by other means?

Attorney Answers 6

Posted

If the information is already available to the public it is not "secret". I doubt such an agreement would be enforceable.

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4 comments

Asker

Posted

Well its hard to say. Think of it as abstract art, you can see it if you look real hard but once you tell someone, it is known. In contract law do they have something similiar to like a gag order. If anyone else sees it then okay, I just don't want this person making it known.

Bruce E. Burdick

Bruce E. Burdick

Posted

If not generally known, not readily ascertainable, and of economic value it may still be protectable. See http://www.law.cornell.edu/wex/trade_secret

Maurice N Ross

Maurice N Ross

Posted

Such an agreement is clearly enforceable even if information is public---the issue is how the signer learned about the information. Lots of public information is not widely known, and if the signer learns it from the other party, the agreement can still legally requirer the signer to maintain confidentiality.

Asker

Posted

Thank you attorney Ross. Is this document considered an NDA or does it go under a different name so I can be clear with an attorney. Can it be drafted to include liquidated damages? Sometimes just showing potential damage would make people think twice

Posted

It may depend on how the information was disclosed. For example, if a disgruntled ex-employee disclosed something they were prohibited from in their non-disclosure it may be possible to prevent them from further publicizing the information.

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3 comments

Asker

Posted

Basically I am asking if there is a way to keep a specific person quiet. Meaning although it could be known I don't need it to be known to certain people. I just want to make sure that particular person doesn't blab it out. Can an agreement be worded to reflect something like that?

Daniel Mark Levine

Daniel Mark Levine

Posted

Generally, only information that is not already public can be kept from disclosure.

Asker

Posted

Thank you. I was looking online and saw information such as http://arstechnica.com/tech-policy/2011/11/patient-sues-dentist-over-gag-order-causing-medical-justice-to-drop-it/ & http://stateimpact.npr.org/pennsylvania/2013/08/01/lifelong-gag-order-imposed-on-two-kids-in-fracking-case/ These contracts even though the legality is being questioned, seems to put a gag on the entire topic. Meaning the people who sign technically can't say a word regardless if info is public or not . Can something be written like that or is the news embellishing the terms?

Posted

I have to agree with Richard. The critical question is whether or not the information that is the subject of the NDA has already been disclosed. The amount or degree of the disclosure is not all that relevant. Once the secret has been disclosed, it is virtually impossible to make it secret once again and an agreement attempting to do so is likely unenforceable.

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Asker

Posted

Got it. I guess i need something almost in the form of a gag order. Does something like that exist? Disclosed is hard in this situation. It is there but does anyone know about it, not sure. That is why I just want to cover it with the person I am making it aware too. Call it abstract art, it is there if you can see it and I don't want it seen just yet

Posted

I differ from the 3 prior answers.

The Uniform Trade Secrets Act ("UTSA") defines a trade secret as:
information, including a formula, pattern, compilation, program, device, method, technique, or process,
that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

You say this information is not generally known and not readily ascertainable. I think it may still be a legally protectable trade secret.

You need to get the right attorney to protect this, which is an experienced IP attorney, preferably one licensed in the jurisdiction where this would be enforced, and I presume that is NY.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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Asker

Posted

Thank you Attorney Bruce for the informative and detailed answer. I know in the legal world public disclosure can be interpreted many ways, so I kept my question vague. Just because something is public, doesn't mean people know about it. I just want to make sure it is not known because the person I told blabbed it. I think I will speak with an attorney. From my question is an NDA the best way to go about this or is their another type of an agreement that would be better suited?

Asker

Posted

Attorney Bruce, examples online I see are http://arstechnica.com/tech-policy/2011/11/patient-sues-dentist-over-gag-order-causing-medical-justice-to-drop-it/ & http://stateimpact.npr.org/pennsylvania/2013/08/01/lifelong-gag-order-imposed-on-two-kids-in-fracking-case/ These contracts even though the legality is being questioned, seems to put a gag on the entire topic. Meaning the people who sign technically can't say a word regardless if info is public or not

Maurice N Ross

Maurice N Ross

Posted

I agree with Bruce. I prepare such agreements regularly. Employees can be required to maintain confidentiality as to information if they learn it during the course of their employment even if it might theoretically have been possible to ascertain the same information from another source. This is not even a close question. These agreements are common. Indeed, this is why many NDA's have specific provisions that say the agreement is not violated if the information is already publicly available or was learned from an independent source. The reason for these provisions is that NDA's are enforceable insofar as they prohibit the parties from disclosing information that they learn from each other. What matters is how the information is learned.

Asker

Posted

Thank you for all of your comments. It is good to know this can be done, I was fearful that since the knowledge was public all the signee would have to do was prove that. If the information is found out, I just want to make sure the signee wasn't the source of it.

Peter J Weinman

Peter J Weinman

Posted

I agree with Bruce, too.

Posted

Yes, non-disclosure agreements can cover information that is public but not well-known. We regularly prepare such agreements for clients. The trick is to retain counsel with experience in drafting such agreements---they are tricky to draft and must be drafted with care.

I am not your lawyer and this is not intended to be legal advice on which you rely. My answer is merely intended to assist you in understanding some of the issues that you face so that you can make an intelligent choice when you hire legal counsel.

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Posted

Thank you for the answers and your previous comments. Things can be found out just don't want that person to be the source. I am glad this can be legally done. I know ndas are hard to enforce in normal standards but a Nda either a damage clause will make people think twice

Posted

I'm going to chime-in late because I can think of an example where such a NDA might be enforceable, despite the "secret" being public knowledge. Suppose a restaurant's "special" or "secret sauce" was no more than ketchup and mayo (a/k/a thousand island), but it was still touted as "secret sauce." I think disclosing the "recipe" would be a violation of the NDA under such a circumstance.

I'm just 3 "helpful" answers away from a free toaster-oven! I may be guessing or not licensed in your state. No atty/client relationship exists.

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