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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

  1. 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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  2. 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.

  3. 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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  4. 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.

  5. 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.

  6. 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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