Facing an NDA Dispute?
Don't navigate this alone. Get professional legal guidance.
Select Your Situation
I'm Being Accused
Client claims I breached the NDA
Client Breached the NDA
The other party violated our agreement
Stop and Assess the Accusation
Before responding, carefully analyze what you're being accused of:
- What specific breach is alleged? General accusations are weak; specific claims need specific responses.
- What evidence do they claim to have? The letter may reveal their knowledge gaps.
- What are they demanding? Cease and desist, return of materials, damages, or something else?
- What's the deadline? Note any response deadlines but don't let them pressure you into a premature response.
Immediate Action
Read the NDA again. Understand exactly what was promised and what exceptions exist.
Preserve All Evidence
Immediately implement a litigation hold:
- Do NOT delete any emails, messages, files, or documents
- Suspend any automatic deletion policies
- Back up all communications with the accusing party
- Gather evidence of your prior knowledge and independent work
- Document your access to their confidential information (or lack thereof)
Immediate Action
Use our Evidence Checklist to systematically gather relevant documentation.
Analyze Your Defenses
Consider which defenses might apply to your situation:
- No breach occurred: The information wasn't confidential, wasn't covered by the NDA, or wasn't actually disclosed.
- Prior knowledge: You possessed the information before the engagement.
- Independent development: You developed the work independently, not using their confidential information.
- Public availability: The information was publicly available.
- Authorization: You had permission to disclose.
- Expired obligations: The confidentiality period has ended.
Consult an Attorney
Even if you believe the accusation is meritless, get legal advice before responding:
- An attorney can identify weaknesses in their claims you might miss
- Your response can be used against you - get it right the first time
- Some deadlines may need to be acknowledged even if you're disputing the claims
- An attorney letter often carries more weight than a pro se response
Immediate Action
If you can't afford an attorney, many bar associations offer low-cost consultations.
Craft Your Response
Your response should be professional, factual, and strategic:
- Acknowledge receipt without admitting wrongdoing
- Reserve all rights and defenses
- Request specifics if their accusations are vague
- Offer resolution if appropriate (but don't admit liability)
- Set your own timeline if theirs is unreasonable
Common Defenses for Contractors
Prior Knowledge
You knew the information before signing the NDA. Prove this with dated documents, prior client work, educational records, or published materials from before the engagement.
Independent Development
You created the work without using their confidential information. Git commits, development logs, and contemporaneous notes can establish this.
Public Information
The allegedly confidential information was publicly available. Archive.org snapshots, press releases, and public documentation can prove this.
Not Covered by NDA
The information doesn't fall within the NDA's definition of "Confidential Information." This is why narrow definitions matter.
Authorized Disclosure
You had permission to share the information. Emails approving disclosure or portfolio use can establish authorization.
Expiration
The confidentiality obligations have expired. Check the NDA's duration clause - many have 2-5 year limits for non-trade-secret information.
Confirm the Breach
Verify that a breach actually occurred:
- Review the NDA: What exactly did they promise? Is this disclosure covered?
- Document the disclosure: Screenshots, recordings, witness statements, or other proof.
- Identify the recipient: Who received your confidential information?
- Assess the damage: What harm has occurred or might occur?
Immediate Action
Capture evidence before it disappears. Screenshot social media posts, save emails, and record dates and times.
Assess Your Damages
Understanding your damages helps determine the appropriate response:
- Lost business opportunities: Did you lose clients or contracts?
- Competitive harm: Did a competitor gain an advantage?
- Reputational damage: Has your professional reputation suffered?
- IP devaluation: Has your intellectual property lost value?
- Ongoing harm: Is the breach continuing?
Review Available Remedies
Your NDA likely specifies available remedies. Common options include:
| Remedy | Description | When It's Available |
|---|---|---|
| Injunctive Relief | Court order to stop ongoing disclosure | When breach is ongoing and damages are irreparable |
| Actual Damages | Compensation for provable financial losses | When you can document specific monetary harm |
| Liquidated Damages | Pre-set amount specified in the NDA | If your NDA includes a liquidated damages clause |
| Attorney's Fees | Recovery of legal costs from the breaching party | If the NDA has a fee-shifting provision |
| Account of Profits | Disgorgement of profits gained from the breach | When the breaching party profited from your information |
Send a Cease and Desist
Often, a well-crafted demand letter can resolve the situation without litigation:
- Identify the breach: Specifically describe what they disclosed and to whom.
- Cite the NDA: Reference the specific provisions violated.
- Demand action: Specify what you want (stop disclosure, return materials, etc.).
- Set a deadline: Give a reasonable timeframe for response (7-14 days).
- Preserve rights: Reserve your right to seek all legal remedies.
Immediate Action
Consider having an attorney send the letter - it often gets faster and better responses.
Escalate If Necessary
If the cease and desist doesn't resolve the issue:
- Mediation: Some NDAs require mediation before litigation. Check yours.
- Arbitration: If the NDA requires arbitration, you may be bound to that process.
- Litigation: File a lawsuit seeking injunctive relief and damages.
- Small claims: For smaller amounts, small claims court may be faster and cheaper.