Full question:
Can analysis by a consultant which identifies weaknesses in client's technology and is covered under a non-disclosure agreement be later subject to discovery by a third party who has interests adverse to client? Note that the consultant and the client do not desire to disclose the information to any third party.
- Category: Discovery
- Date:
- State: New York
Answer:
In a lawsuit, the term “discovery” refers to methods that the plaintiff and
defendant use to get information from each other and other people in order
to prepare for trial. The primary methods used are requests for production
of documents, requests for admission, and depositions.
If the lawsuit deals with the subject matter of the non-disclosure agreement,
under Rule 26(b) of the Federal Rules of Civil Procedure and similar state
rules, parties may obtain discovery regarding any matter "not privileged."
Among the numerous privileges recognized in discovery proceedings are the
marital communications privilege, the physician-patient privilege, the
attorney-client privilege, and the trade secret privilege.
There is no absolute discovery privilege for trade secrets and similar
confidential information. However, the federal courts do recognize a qualified
evidentiary privilege for trade secrets and other confidential commercial
information. Trade secrets are not given automatic and immediate immunity
against disclosure. In each case the claim to privacy is weighed against the
need for disclosure. Thus, the fact that a document reveals a trade secret is
not of itself sufficient to make the request objectionable. Nevertheless, the
courts will exercise discretion to avoid unnecessary disclosure of such
information, particularly where an action is between competitors.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
