Immediate Actions (First 24 Hours)
When you discover a potential NDA breach, your first priority is preserving evidence and stopping ongoing damage. Take these steps before contacting the breaching party.
Before anything else, capture and preserve evidence of the breach:
- Take screenshots of any public disclosures (websites, social media, articles)
- Save complete copies of emails or messages containing your confidential information
- Use web archive services (archive.org) to preserve online content
- Note timestamps and URLs for everything
- Do NOT confront the breaching party until evidence is secured
Create a contemporaneous record of how you discovered the breach:
- Date and time you became aware
- How you discovered it (customer report, competitor action, web search, etc.)
- Who else knows about the breach
- Write this down immediately - memory fades and courts value contemporaneous notes
Understand what was disclosed and to whom:
- What specific confidential information was disclosed?
- Who received the information?
- Is the disclosure ongoing or was it a single event?
- Can the information be used against you competitively?
- What is the potential financial impact?
Find and review the executed NDA immediately:
- Verify you have the signed, final version
- Confirm the information disclosed was covered by the NDA
- Review notice requirements for breach claims
- Check remedy provisions (injunctive relief, damages, attorney fees)
- Note any dispute resolution requirements (arbitration, mediation)
⚠ Critical Warning
Do NOT contact the breaching party, post on social media, or discuss the breach publicly until you have preserved evidence and consulted with legal counsel. Premature action can destroy evidence and harm your legal position.
Signs of NDA Breach
NDA breaches aren't always obvious. Here are common indicators that your confidential information may have been disclosed.
Evidence Collection Checklist
Digital Evidence
Chain of Custody
Documentation
Damage Assessment
Legal Escalation Path
NDA breach response typically follows a graduated escalation path. Each step increases pressure but also costs and risks.
When to Use Each Level
| Level | When to Use | Typical Cost |
|---|---|---|
| Demand Letter | First response; minor breach; relationship worth preserving | $0-500 (self) or $500-2,000 (attorney) |
| Cease & Desist | No response to demand; ongoing disclosure; need legal weight | $1,000-5,000 |
| TRO/Injunction | Urgent need to stop disclosure; continuing harm; trade secrets at risk | $10,000-50,000+ |
| Full Litigation | Significant damages; no settlement possible; need precedent | $50,000-500,000+ |
Demand Letter Template
A well-crafted demand letter often resolves NDA breaches without litigation. It should be factual, specific, and clearly state your demands.
NDA Breach Demand Letter Template
Customize for your specific situation - consult an attorney for significant breaches
[Your Company Letterhead]
[Date]
VIA EMAIL AND CERTIFIED MAIL
[Recipient Name]
[Title]
[Company Name]
[Address]
Re: Breach of Non-Disclosure Agreement dated [Date]
Dear [Recipient Name]:
I am writing regarding [Company Name]'s breach of the Non-Disclosure Agreement (the "NDA") executed between our companies on [Date].
The Breach
On [Date of discovery], we became aware that confidential information protected by the NDA was disclosed to [third party/public/competitor]. Specifically:
[Describe the specific confidential information that was disclosed]
This information was shared with you under the NDA on [date(s) of disclosure] and was clearly identified as confidential. The disclosure to [unauthorized recipient] violates Section [X] of the NDA, which requires that Confidential Information [quote relevant obligation].
Our Demands
We demand that [Company Name] immediately:
1. Cease any further disclosure of our Confidential Information;
2. Identify all parties to whom our Confidential Information was disclosed;
3. Demand that those parties return or destroy any copies and certify compliance;
4. Provide a written explanation of how the breach occurred;
5. Implement measures to prevent future breaches.
Reservation of Rights
We reserve all rights and remedies available under the NDA and applicable law, including but not limited to seeking injunctive relief and monetary damages. The NDA specifically provides for [reference injunction clause, attorney fees clause, etc.].
Please respond in writing within [10/14] days of this letter confirming your compliance with the above demands. Failure to respond satisfactorily will result in further legal action.
Sincerely,
[Your Name]
[Title]
[Company Name]
cc: [Your Attorney, if applicable]
⚠ Before Sending
For significant breaches or if you plan to litigate, have an attorney review your demand letter. Statements you make can become evidence, and improper threats can create liability for you.
When to Consider Litigation
Factors Favoring Litigation
- Significant damages: The breach caused substantial, quantifiable financial harm
- Ongoing disclosure: The breach is continuing and informal efforts haven't stopped it
- Trade secrets at risk: Delay could destroy trade secret status permanently
- Bad faith: The breaching party acted intentionally or refuses to cooperate
- Precedent needed: You need to send a message to others about NDA enforcement
- Strong evidence: You have clear documentation of the breach and damages
Factors Against Litigation
- Limited damages: Costs of litigation exceed potential recovery
- Relationship value: Ongoing business relationship worth more than the claim
- Weak case: Unclear whether information was truly confidential or covered by NDA
- Publicity risk: Litigation would publicize the confidential information further
- Collectability: Breaching party lacks resources to pay a judgment
💡 Practical Reality
Most NDA breach claims settle before trial. The threat of litigation, combined with a reasonable settlement demand, often produces better outcomes than going to court. Litigation should be viewed as leverage for settlement, not the goal itself.
Next Steps
- Preserve evidence immediately: Screenshots, archives, and documentation
- Locate your NDA: Review the specific terms and remedies available
- Assess the scope: Understand what was disclosed and the potential damage
- Consult legal counsel: For significant breaches, get professional advice
- Send demand letter: Formal notice is often required and usually the first step
- Consider escalation: If demands aren't met, evaluate litigation options
📝 Related Resources
Demand Letter Hub - Templates for various breach scenarios
Business Deal NDA Hub - Prevention is better than cure - strengthen your NDAs