The BUSKLAW Newsletter

Consider the ubiquitous non-disclosure agreement ("NDA"): every business (and the White House) has one, and it's often employed for dubious ends. To  cover-up criminal activity.   Or to keep a lid on the President's past sexual shenanigans.  Most recently, President Trump's brother, Robert Trump, tried to use a family NDA from 2001 to stop the publication of Mary L. Trump's book entitled, Too Much and Never Enough. How My Family Created the World's Most Dangerous Man.   ( Mary Trump is Donald Trump's niece.) But the attempt to weaponize that NDA to ban Mary Trump's book failed. It was released on July 14 and is #1 on the bestseller list. So let's see where this NDA went wrong according to Judge Greenwald. And  p erhaps t he Court's opinion  (issued 7/13/2020) will help NDA drafters avoid some of the pitfalls that plagued the Trump family NDA. (This post doesn't discuss the constitutional issues decided by the Court.) First some context...

________________________________ Fact: business folks love NDAs. Before a deal is ever discussed, the vendor or its customer will usually insist on signing a NDA. The typical NDA is usually written to cover any information disclosed between the parties in whatever form. It may cover one party's "confidential" information disclosed to the other (a unilateral NDA) or cover each party's "confidential" information disclosed to the other (a reciprocal NDA).  "Confidential" information is usually broadly defined to include anything that isn't public knowledge that was disclosed by each party to other. The NDA may require that the data disclosed be marked CONFIDENTIAL for it to be covered by the NDA.  The medical profession has been criticized for prescribing antibiotics needlessly, and lawyers should be criticized for the needless preparation of NDAs. Like the overuse of antibiotics, the overuse of NDAs has the same result: the e...