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I am a contractor (the "Advisor" in the contract) and one of my potential clients (the "Client") put a Non-Disclosure Agreement under my nosethat has the following clause (section 7):

  1. Unfair Competition and Protection of Confidential Information.

(a) The Advisor shall not at any time divulge, furnish or make accessible to anyone any Confidential Information, or use in any way any Confidential Information other than as reasonably required to perform the Services for the Client.

(b) The Advisor agrees that the Client’s Confidential Information constitutes a unique and valuable asset of the Client that the Client acquired at great time and expense, and which is secret and confidential and will only be available to or communicated to the Advisor in confidence in the course of the Advisor’s performance of the Services. The Advisor also agrees that any disclosure or other use of the Client’s Confidential Information other than for Client’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to the Client. In addition to all other remedies the Client may have, it shall have the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 7.

I guess I do not understand what the significance of calling out "emergency relief" as part of "equitable relief". What is "emergency relief" mean in this context? It's not something that I have encountered before (I'm just doing some mathematical modeling). But it does make me wonder if someone needs to be handing them the doll and asking them "to point to where the bad client hurt you".

2 Answers 2

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Some courts have emergency processes that short-circuit the normal procedures

However, in general, these tend to be courts that deal with life-or-death situations like family law courts, rather than straight commercial courts.

Notwithstanding, such procedures might allow interim orders to be made without noice to the other party.

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  • I suppose I was confused because I would think that a court that could issue an interim order could do so without the agreement specifically acknowledging this. Honestly, I am surprised to see this called-out considering the kind of work that I do.
    – m_a_s
    Feb 26, 2023 at 3:37
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calling out "emergency relief" as part of "equitable relief". What is "emergency relief" mean in this context?

Equitable relief is not the sole qualifier of emergency relief. The qualifier is the entire phrase "injunctive and other equitable relief", and even that is poorly drafted insofar as it suggests that injunctive relief is a type of equitable relief. Emergency relief is of a rather injunctive nature whereas rulings in equity would be premature in a context of emergency.

That provision purports to preemptively prevent you from opposing the client's claims and/or motions for relief. That client's method for securing your waiver of litigation seems abusive enough to be stricken as null and void.

Even if the provision were binding and enforceable, it is pointless because the provision only covers appropriate relief. You might argue in court that the relief requested is inappropriate, thereby rendering that provision without effect on your opposition to the client's request(s) for relief.

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  • Thanks! Agreed, this is not well written. The whole agreement reads like someone has put a NDA and an employment agreement in a blender. There's even a quasi-compelled disclosure requirement in the definition section, where an attempt to define what is not considered confidential information is made.
    – m_a_s
    Feb 25, 2023 at 17:48
  • But, what would be "emergency relief"?
    – m_a_s
    Feb 25, 2023 at 17:49
  • @m_a_s "a NDA and an employment agreement in a blender." Merging both would be acceptable as long as each parties' rights and obligations are outlined clearly enough. "what would be "emergency relief"?" There is no precise definition. The term refers to any relief that would do damage control and/or to prevent imminent and irreversible harm --or the worsening thereof-- in case "Section 7" is violated. Emergency relief indicates that the urgency of the matter requires immediate action by the court rather than wait till the case as a whole is decided. Feb 25, 2023 at 19:04
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    An injunction is an equitable remedy in that it arises from the law of equity, not the common law.
    – Dale M
    Feb 25, 2023 at 22:08
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    @IñakiViggers injunctions are still equitable relief - law and equity may have merged but monetary damages are the only legal damages, everything else is equitable relief whether it’s codified or not.
    – Dale M
    Feb 26, 2023 at 20:03

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