Christopher A. Pickett

In nearly every business transaction, some degree of confidential information is exchanged. Whether it involves financial data, a client list, proprietary code or strategic plans, that information only has value if it remains protected. A properly drafted NDA, sometimes referred to as an NDA contract or non-disclosure agreement, is the most common way to preserve that protection.

But not every NDA is enforceable. Courts regularly refuse to uphold agreements that are vague, overreaching or lacking essential terms. To avoid those pitfalls, an NDA must be structured with care.

What is an NDA?

At its core, an NDA is a contract that restricts the disclosure and use of specified information. Businesses typically use three types:

• Unilateral NDA: One party discloses information, and the recipient is bound to keep it confidential.
• Mutual NDA: Both parties exchange sensitive information and agree not to disclose it.
• Multilateral NDA: Several parties share confidential data in a joint venture or collaboration.

Whatever the type, the goal is consistent: clearly define what is confidential, restrict how it can be used and set out remedies if those restrictions are violated.

Key provisions that support enforceability

An NDA only protects a business if it can hold up in court. The following elements are critical to enforceability:

1. Definition of confidential information
   A clause that attempts to cover “all information” rarely works. The NDA must define what is confidential while excluding public, independently developed or lawfully obtained information.
2. Obligations of the receiving party
   The agreement should limit use to a defined business purpose, prohibit disclosure outside authorized channels and require safeguards against unauthorized access.
3. Term and survival
   Confidentiality should last a reasonable time. While most NDAs expire after several years, trade secrets often warrant indefinite protection.
4. Permitter disclosures
   Carve-outs allow disclosure when legally required or to employees, advisors or affiliates with a legitimate need to know, provided they are bound by similar obligations.
5. Remedies and enforcement mechanisms
   Strong NDAs authorize injunctive relief, specify damages and may include liquidated damages. Choice-of-law and forum selection clauses provide consistency in enforcement.

Legal standards for NDA enforceability

Like any contract, an NDA must include consideration, mutual assent and definite terms. Courts also test whether restrictions are reasonable in scope, geography and duration. NDAs that overreach, such as those that cover public information or function as disguised non-compete, are at risk of being struck down.

Federal and state law distinctions also matter. For example, under the Defend Trade Secrets Act, federal courts can enforce NDAs that protect trade secrets, but state courts may apply narrower standards to general confidential business information.

What happens if you break an NDA?

The consequences of breaking an NDA can be serious, both legally and commercially. Common outcomes include:

• Injunctive relief: A court order to stop disclosure or misuse immediately.
• Monetary damages: Compensation for financial harm, including lost profits.
• Liquidated damages: Pre-determined sums, enforceable when tied to anticipated loss.
• Fee-shifting: Recovery of attorneys’ fees and litigation costs.

Beyond legal penalties, NDA breaches often destroy trust and damage business relationships that no lawsuit can fully repair.

Best practices for drafting NDAs

Even with the right provisions, enforceability depends on drafting discipline. Businesses should:

• Tailor agreements narrowly instead of using generic templates.
• Align confidentiality obligations with the sensitivity of the information.
• Apply “need-to-know” standards internally.
• Audit and update NDAs regularly, especially in fast-moving industries.
• Act quickly if a breach occurs; delay weakens enforcement.

Conclusion

An NDA is more than a legal formality. Done right, it is a powerful contract that protects confidential information and provides recourse if it is misused. Done poorly, it may offer little to no protection.

If your business is facing NDA enforceability issues or dealing with the consequences of an NDA breach, please contact your UBG attorney or Chris Pickett at cpickett@ubglaw.com.

The information provided in this article speaks only to the information and guidance we have available as of the date of publication and is subject to change. This legal update was created by UB Greensfelder LLP and is not intended as a substitute for professional legal advice. Receipt, by itself, does not create an attorney-client relationship. For any questions, or for further information, please contact your UB Greensfelder attorney.