Law 360 reports a motion to disqualify lawyers who interviewed and obtained documents from an adversary's former employees. My sense of this issue has been that lawyers are not sanctioned or disqualified for learning informally information they could obtain through discovery, even if the information would be covered by a former employee's NDA. Lawyers are disqualified if they obtain privileged or work product information.
The Restatement supports that distinction, as I recall, distinguishing confidentiality obligations imposed by law from those imposed by contract. (The motion referenced in this story refers to both proprietary and privileged information, so the distinction may not be relevant in that case.) I have a general, anecdotal sense that companies are becoming more aggressive in attempting to enforce NDAs through disqualification motions or requests for other sanctions. CA has a proposed ethics rule that would support such efforts. It is an interesting issue to watch.
DM
I assume that your NDA is a Non-Disclosure Agreement or a Confidentiality Agreement. Is the employer limited to a damage remedy against an employee? Or can the company go after the lawyer for inducing breach - by way of a motion to disqualify? So should the lawyer/investigator make an inquiry up front about any such agreement? I have always discussed this with my students. Being a techno-failure, I could not pull up your link, but I assume that is what this is all about. It is a very interesting issue, and I will try to follow your case. Thanks for sharing this.
Posted by: Rick Underwood | March 06, 2012 at 02:39 PM
NDA does = a nondisclosure agreement. I have always assumed employers could pursue breach claims, and there is thus a potential for inducement liability. States that favor informal discovery might create a (tort law) privilege for the lawyer. Discipline or disqualification seems to me a stretch under the Restatement view, but the law may be shifting.
Posted by: David McGowan | March 06, 2012 at 07:11 PM