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I volunteered my time to help do research for a podcast that sought to help a family get answers about the death of a loved one. The original information was given to us by the family (police reports, etc). A few weeks after getting the majority of this information, the podcast company had a few of us who were privy to the more intimate information sign an NDA. I did my research and made phone calls etc and turned all of that info over to the podcast company who, in turn, shared it with the family of the victim. Fast forward a bit - I am no longer volunteering with the company, however the family and I remain close and I continue to help them find more information. The family has cut ties with the podcast company as well. The family, as well as I, have been approached by producers who want to showcase this story. I am wondering, since all of my research was shared with the family, who did not sign an NDA and are wanting me to speak with the media, am I allowed to participate and discuss the research I did and information I found? By the podcast company sharing that information back with the family who are not under any contract, and with whom I still assist, would that mean that it is not confidential anymore? Also, can an NDA cover information found through a FOIA request?

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  • Have you read the terms of the NDA?
    – jwh20
    Jan 16, 2022 at 12:07

2 Answers 2

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Confidential isn’t confidential once it’s public

That’s pretty straightforward- if you swear someone to secrecy and then tell the world your secret, it isn’t secret anymore.

However …

If you tell someone a secret and then tell someone else a secret, that doesn’t necessarily mean that it’s public. Both confidants may still be bound by confidentiality- either by contract like an NDA or by some common law restriction. That is, if I tell you a secret and you know it’s a secret, you can’t tell it even if you never had a contract about that.

Notwithstanding, you need to read the terms of your NDA. It’s a contract and what it says is what it means. If it says you can’t talk about it even if it becomes public, then you can’t talk about it.

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  • The contract doesn't mention if the info becomes public. However, it states that all developments made and works created shall be the sole and complete property of the company and all copyrights and proprietary interest shall belong to the company. The company shall have any other rights and remedies available at law or in equity. I know I can't talk about the company. I only want to speak about things that were uncovered and shared with the family. The family never signed a contract and could go and freely share the info on social media. To use your example, is the info still a secret?
    – Zoey
    Jan 16, 2022 at 23:23
  • @Zoey why do you think the family is free to discuss the matter on social media? If the information was given to them in confidence, it's still confidential even without a contract.
    – Dale M
    Jan 16, 2022 at 23:26
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    @Zoey "it states that all developments made and works created shall be the sole and complete property of the company". That and related issues such as copyright & proprietary interest are not exactly what nondisclosure clauses are about. One thing is to divulge the deliverables you produced, and a different thing is to discuss your knowledge with which you produced those deliverables. Your paraphrase [so far] of the agreement only prohibits the former. Jan 16, 2022 at 23:57
  • @DaleM I would assume the family could do what they like with the information as it was freely shared to them by the company without a contract of confidentiality (verbal or nonverbal). Am I incorrect in that assumption?
    – Zoey
    Jan 17, 2022 at 0:21
  • @Zoey possibly. It depends how it was shared and whether the family were advised or it was obvious that the circumstances of the sharing were confidential.
    – Dale M
    Jan 17, 2022 at 0:42
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am I allowed to participate and discuss the research I did and information I found?

The exact terms of the NDA are crucial for assessing the issue. A document labeled or titled as NDA can contain clauses beyond nondisclosure (exclusivity being one typical example) to prevent you from contributing elsewhere. Another question would be whether such clauses are invalid as unreasonable or overly broad.

would that mean that it is not confidential anymore?

It depends on details which are not provided in your description. Arguably some relevant factors are:

  • the company's reason(s) for disclosure to the family;
  • the company's reasonable expectations on how the family would proceed with that disclosure;
  • what the family actually has done with that information;
  • whether the company was selective on what information to disclose.

can an NDA cover information found through a FOIA request?

No. FOIA [non-exempt] records are available to the public, and there is no statutory constraint on discussing or divulging the information lawfully released. Accordingly, it makes no sense for a private entity to restrict who is allowed to access and/or discuss information that is publicly available.

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  • I know I can retain a lawyer to review the document, but I want to follow the terms of the NDA and still help the family. I don't want to overstep and wind up with a lawsuit. I would like to be able to discuss it with the company, however, I have reached out to them and they will not discuss it with me. I don't know the name of the company lawyer either. Is there any way I can get the company to give further clarification without going so far as a summary judgement? I would put more of the contract on here, but I am unsure if I am even allowed to share that.
    – Zoey
    Jan 16, 2022 at 23:03
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    @Zoey "Is there any way I can get the company to give further clarification without going so far as a summary judgement?" Apparently not. But even if you persuade the company or its lawyer to answer, their response will likely be pointless. The company's/lawyer's interpretation of the contract could be too biased and materially depart from what the contract actually provides. "I am unsure if I am even allowed to share that." Based on the circumstances you describe, a contractual prohibition to disclose the terms of a contract like this seems unreasonable (and thus null and void). Jan 16, 2022 at 23:45

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