Non-disclosure agreements (“NDA”) are enforceable contracts where one or more parties agree not to disclose confidential information that they have shared with each other as an essential part of doing business together. NDAs can be puzzling when a court orders one of the parties to testify.
Can a Non-Disclosure Agreement Prevent a Witness from Testifying?
Most NDAs include provisions that eliminate confidentiality obligations in case one of the parties is subject to the order of a court. Regardless, a court may order a witness to testify irrespective of any NDA. Therefore, if you are compelled to testify, you must do so unless an exception applies (e.g., self-incrimination) or a legally defined privilege (e.g., married couples, attorney and clients, doctors and patients, etc.). However, there is no privilege for corporate secrets.
In cases where a party is compelled to testify, the witness should notify the other party that such testimony will be compelled so that the other party may seek a protective order form the court. If a compelled party refuses to testify, they may be held in contempt of court and jailed until they do so. However, even if a party is subpoenaed by a court, the subpoenaed may be challenged in some cases. This is why it is important to consult an attorney to see what the best solution would be.
Can a Non-Disclosure Agreement Prevent you from Reporting a Crime?
Generally, no type of NDA can prohibit a person from reporting a crime. Failing to report a crime goes against public policy. For example, Florida prohibits concealment of public hazards.[1] But what if you are not sure if something is or is not a crime, such as sexual harassment, where the definition can vary from state to state. Situations like these make it difficult to know if your NDA will prevent you from speaking out.
Recently, there were allegations of sexual assault against famous, powerful men, such as Hollywood producer, Harvey Weinstein, and NBC’s Today Show host, Matt Lauer. Some employers, like Mr. Weinstein, have relied on NDAs to negotiate settlement agreements with employees who were sexually harassed or assaulted in the workplace. Because of this, some employees remained silent for years because they feared legal repercussions from reporting the sexual assault to the police or human resources.
NDAs can be confusing when you are not sure if something is considered a crime or not, that is why it is best to contact an attorney to know what your best option is.
What Happens if you Break Confidentiality Agreement?
Breaching an NDA can have serious consequences (e.g., a lawsuit against the person who is revealing the private information). Normally, the remedies for a breach of an NDA are in the NDA itself. Therefore, it is important to have a detailed NDA, which includes what is covered by the contract and the repercussions for disclosing such information.
[1] Fla. Stat. Ann. 69.081
