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While working at previous employers I have been exposed to confidential technical information. As usual, this is covered in the confidentiality agreement that I signed. The agreement puts no expiration date on this, i.e. it says something like "during your employment and any time thereafter".

Now in many cases, this information is quite old, i.e. 10+ years and I have no way of knowing whether the company would still consider it confidential, uses is or is even aware of it's existence any more.

Technical knowledge in general progresses fast so there is some "time value" on it: the older it gets, the less relevant and confidential it will be.

Is there a reasonable expectation of when the confidentiality requirement for for general technical information expires? It's not patented or protected in any other formal way.

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“general technical information” is not confidential

I can’t think of another way to put this but only confidential information is confidential.

Confidential information must be secret and proprietary and imparted to you in circumstances where you are made aware or it’s obvious that it is secret - it doesn’t cover everything you get told. An NDA on employees that says “everything you learn is confidential” is worthless.

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  • Might depend on the state Nov 29, 2019 at 21:48
  • I'm not asking about the "crown jewels" here, but information you come across during the normal course of working there. It's NOT specifically tagged as confidential and it's not "obviously" confidential. It's more in the category of "this could have been considered confidential 10 years ago but it's probably not today anymore".
    – Hilmar
    Nov 29, 2019 at 23:26
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    When you were made aware of it were you told “this is confidential” or was it obviously a business secret? If not, it never was confidential.
    – Dale M
    Nov 30, 2019 at 0:02
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    It was NOT marked as confidential. Whether it's a "obviously" a business secret is in the eye of the beholder.
    – Hilmar
    Nov 30, 2019 at 21:20
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    @Hilmar no, it’s an objective test - it has to be something “proprietary”, known only to that organisation.
    – Dale M
    Nov 30, 2019 at 22:30
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Normally, a confidentiality agreement creates a trade secret (and must qualify for trade secret treatment which basically means that measures are in place to keep the secret and that the secret has economic value), and so long as the confidential information described in the agreement remains secret, that can have an indefinite duration, even in the absence of a copyright or trademark.

As a general rule, unless the contract provides otherwise, a confidentiality agreement's protection of certain information does not expire. But, with the passage of time, it may get harder to show the elements of injunctive relief for a disclosure (e.g. "irreparable injury"), and the damages for a breach may become nominal, perhaps even to the point where a liquidated damages clause for a breach of the agreement in that particular way becomes contrary to public policy as a penalty not reasonably calculated to substitute for actual economic harm. Also, the doctrine of laches could conceivably apply to bar a claim under the agreement if the passage of time in enforcement of the agreement renders it unfair, or the doctrine of waiver could apply if other breaches were consistently ignored.

If you disclose the information anyway, and no one sues or brings criminal charges within the statute of limitations for a trade secret violation, then the breach of the agreement with respect to the disclosed information is no longer actionable.

Since many statutes of limitations run from discovery of the breach, and disclosure of confidential information could conceivably trigger a suit against the company for some reason, the economic value of keeping the original secret could continue long after the intrinsic value of the secret has expired.

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