I'm just taking the recent Mark Zuckerberg Senate hearings which were held in the open in the United States. Is there some sort of fine line that the Senate has to follow? Can they ask any questions even if it may impinge upon any non-disclosure agreements signed by the defendant, e.g. regarding trade secrets?


Senators, and anyone else for that matter, can ask any questions they want.

The witness is required to answer the questions only if under subpoena, and only if the answer of the question would neither require disclosure of privileged information nor violate a 5th Amendment right (which is a form of privilege).

Many things that are the subject of an NDA are not privileged information, and the fact that someone claims that something is a trade secret does not automatically make it privileged information.

Privileges can be established by statute, court rule or at common law.

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  • Could you perhaps illustrate with an example of an employee of a producer of food products who is asked a question that would require the disclosure of a secret ingredient, contrary to an NDA between employee and employer? Does the employee risk being caught in a choice between being found in contempt and being sued for breaching the NDA? – phoog May 1 '18 at 18:48
  • @phoog That is a legitimate thing to ask, but a hard thing to answer both in a procedural sense and in a substantive law sense. If someone else wants to take that on, more power to them, but I'm not going to take that more specific question on just now. – ohwilleke May 1 '18 at 18:52
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    I may be misreading your second paragraph, did you mean that the witness is only required to answer under subpeona, but under subpeona are only allowed to refuse to answer if the question would require dislcouse of privileged information or violate a 5th Amendment right? – IllusiveBrian May 1 '18 at 19:47
  • @IllusiveBrian Yes. You have restated it correctly. – ohwilleke May 1 '18 at 23:26
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    You've missed a "not" there, then. "... only if the answer of the question would not require disclosure of privileged information ...". – Nij May 2 '18 at 5:13

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