If during litigation, parties agreed that no one can post depositions on the web, etc., does that also mean that if someone says something defamatory about you and you defend yourself with a verbal or written statement (which you testified under oath in the deposition) can you get into trouble? I am worried that if someone defames me after agreeing to such, that I could not say anything as a result of my agreement with opposing party. I would have to sit passively by and take it. Please clarify the law on this. Thanks.
Testimony under oath is almost totally privileged. Depositions are technically part of the public record of the case. I have been licensed in CA since 1988 and I never heard of anyone agreeing to not publish deposition transcripts. I have heard of parties stipulating to an order to seal the records though. Why would you agree to something like that, especially given your concerns?
Your question is a bit cryptic, but I think you are asking whether an agreement to not publish a deposition transcript would prevent you from publicly discussing the transcript when you take umbrage at allegations made in the transcript. Your concern seems misplaced. It sounds like the deposition transcript (and its substance) is to be kept confidential and is not to be publicly disclosed (if filed with the court, it presumably would be filed under seal). This is often done under a protective order that is issued by the court. Therefore, no one is supposed to talk about the substance of the deposition in public. Think of a cone of silence over the deposition, where only the parties, their attorneys, and the court, is allowed to listen. Or, to use a Fight Club analogy, outside of the litigation, don't talk about the depositions! If you then go out and blab in public about things said in the confidential deposition that you do not want to be made public, then you only have yourself to blame. The purpose of a deposition is to gather evidence from witnesses. If you disagree with a statement made by a witness at a deposition, you will have your turn to rebut that in due course during the litigation process. To the extent you feel that you are sitting passively by and taking it--think of it as waiting your turn under the rules of civil procedure. Your desire to jump your turn may be detrimental to your litigation position.
A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets. As such, an NDA protects nonpublic business information.
NDAs are commonly signed when two companies, individuals, or other entities (such as partnerships, societies, etc.) are considering doing business and need to understand the processes used in each other's business for the purpose of evaluating the potential business relationship. NDAs can be "mutual", meaning both parties are restricted in their use of the materials provided, or they can restrict the use of material by a single party.
It is also possible for an employee to sign an NDA or NDA-like agreement with an employer. In fact, some employment agreements will include a clause restricting employees' use and dissemination of company-owned "confidential information."
Many NDAs are unilateral, or one-way agreements, where one party wants to disclose certain information to another party but needs the information to remain secret for some reason, perhaps due to secrecy requirements required to satisfy patent laws or to make sure that the other party does not take and use the disclosed information without compensating the discloser.
Another type of nondisclosure agreement is one that is a mutual agreement, where both parties will be supplying information that is intended to remain secret. This type of agreement is common when businesses are considering some kind of joint venture or merger.
Some practitioners insist on a mutual NDA in all cases, to encourage the drafter to make the provisions "fair and balanced" in case the drafter's receiving-party client later ends up as a disclosing party, or vice versa (not an uncommon occurrence).
A nondisclosure agreement can protect any type of information that is not generally known. However, nondisclosure agreements may also contain clauses that will protect the person receiving the information so that if they lawfully obtained the information through other sources they would not be obligated to keep the information secret.[dead link] In other words, the nondisclosure agreement typically only requires the receiving party to maintain information in confidence when that information has been directly supplied by the disclosing party. Ironically, however, it is sometimes easier to get a receiving party to sign a simple agreement that is shorter, less complex and does not contain safety provisions protecting the receiver.
Some common issues addressed in an NDA include:[
outlining the parties to the agreement;
the definition of what is confidential, i.e. the information to be held confidential. Modern NDAs will typically include a laundry list of types of items which are covered, including unpublished patent applications, know-how, schema, financial information, verbal representations, customer lists, vendor lists, business practices/strategies, etc.;
the disclosure period - information not disclosed during the disclosure period (e.g., one year after the date of the NDA) is not deemed confidential;
the exclusions from what must be kept confidential. In California (and some other states) there are some special circumstances relating to non-disclosure agreements and non-compete clauses. California's courts and legislature have signaled that they generally value an employee's mobility and entrepreneurship more highly than they do protectionist doctrine
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