How to Get Around a Non-Disclosure Agreement: Are There Exceptions?

A non-disclosure agreement (NDA) is a legally binding contract that explicitly prohibits the sharing of confidential information. It is a formal contract between two parties where an agreement has been made to not disclose specific information outlined in the agreement. While the relationship between the two parties doesn’t necessarily have to be kept confidential, specific information does.

NDAs are commonly seen in the business world, where protecting information such as trade secrets and proprietary information is key to the success of an organization. However, there are different circumstances where certain restrictions of an NDA can be navigated to not let it restrict your next move while also respecting the critical information you are privy to.

Legal Exceptions to NDAs

When you are bound to an NDA, it may feel like your lips are forced to be sealed indefinitely. However, there are a number of different circumstances where your original agreement may be legally lifted.

Unlawful Activities

Non-disclosure agreements do not protect criminal activity. Sometimes, people who have signed an NDA stumble upon information that could indicate a crime has been committed, such as embezzlement or bribery. In these instances, you are free from your NDA to report your observations.

In fact, many times, you are legally required to report any insight you have witnessed of criminal activity to the appropriate authorities. This reinforces a longstanding rule that there is no legal contract that could ever shield anyone from ongoing criminal behavior.

Whistleblower Protections

The role of a whistleblower plays a huge role in maintaining the integrity of different industries and how their leaders govern. Because these individuals play a huge role in uncovering misconduct in the workplace that would otherwise go unseen, a ton of legal frameworks have been developed to protect those who have been whistleblowers.

The caveat for whistleblowers who have signed an NDA is that their accusation must be made in good faith and route their concern through the appropriate regulatory bodies or law enforcement agencies.

Mandatory Disclosure

There are instances where the law requires an individual to disclose information that would otherwise be protected under the seal of their NDA. For example, during litigation or an investigation, a court may order someone to speak on certain experiences or observations they have had when at work. To comply with the court order, this grants the individual legal authority to neglect specific conditions of the NDA.

Expiry of the NDA

Like most contracts, there is a shelf life of the agreement that is stated within the fine print. They are mostly designed to protect private information for a specific period of time, often just a few years after an employee leaves an organization. Once this date has passed, the information is no longer considered sensitive, and the company that issued the NDA will not have legal authority to pursue litigation for anything you have shared with others.

Keep in mind that not all NDAs have an expiration date, so be sure to take a look and see if there is a deadline for the contract on yours to make sure you do not violate the conditions ahead of time.

FAQs

Q: What Happens If I Accidentally Disclose Information Covered by an NDA?

A: There could still be legal consequences for anyone who has accidentally disclosed information that was supposed to be protected by their NDA. If you recognize that you have violated the agreement, you should notify your attorney and the other party immediately. Being proactive in your guilt, even if accidental, can go a long way to mitigate any damage to the company and help further prove the legitimacy of your claim that it was an accident.

Your attorney will be able to guide you through the most effective course of action to resolve this issue, such as issuing a formal apology, offering to implement even stricter confidentiality measures or any other remedies the other party may suggest.

Q: Can I Share Confidential Information With Someone Who Has Also Signed An NDA?

A: Even if you are aware someone else has signed the same NDA, it does not give you the green light to start discussing the confidential information you signed to protect. To have any conversations around the topic, you will both have to verify what the NDA permits you to share.

If there are any ambiguities in the contract, you may wish to seek written consent from the party who owns the confidential information before outright sharing it with someone else. This may be something you and another new co-worker want to do if you feel like sharing mutually understood information is vital to your new role.

Q: Are There Any Legal Defenses If I’m Sued for Breaching An NDA?

A: If you are sued for breaching an NDA, there could be a few different defense routes to take. First, you and your attorney could make the point that the information that was shared was already public knowledge or that it wasn’t covered under the original NDA.

If the NDA was vague in its explanation as to what information is confidential, the argument could be made that the contract is broad and there is no clear link between what you shared and what it states cannot be shared. Of course, if the information shared points to any criminal activity that ends up being proven to be true, the organization will lose its right to sue you for breaking the NDA.

Q: Is It Possible to Negotiate the Terms of an NDA?

A: Yes, there could be instances where it is appropriate to negotiate NDA terms before you officially sign. Thoroughly read through what you are being asked to agree to, and share the draft with your attorney. While there may not be any instances where you can reject your willingness to keep specific information confidential, you could negotiate how long the NDA is enforceable or request that the consequences of breaching the agreement be reduced.

Be sure to engage in these negotiations with a trained attorney who will position your negotiation as a request that still remains fair and protects both parties moving forward.

Contact Shirazi Law Firm, PC Today

If you are looking to better understand the terms and conditions of your NDA and what flexibility you have to make specific comments, connect with the employment lawyers at Shirazi Law Firm, PC, today. For years, we have been helping our community navigate non-disclosure agreements and ensuring that no one is taken advantage of based on the details within each individual contract. We look forward to learning more about how we can help your case.