NDA Enforceability FAQ

If someone breaches your NDA, you may be entitled to several types of damages:

• Actual damages: Provable financial harm (lost job, therapy costs, moving expenses)
• Liquidated damages: A pre-agreed amount specified in the NDA (if reasonable)
• Emotional distress: In some jurisdictions, for egregious breaches
• Attorney's fees: If your NDA includes a fee-shifting clause
• Injunctive relief: Court order to stop ongoing disclosure

The challenge with relationship NDAs is often proving damages. Unlike business NDAs where you can point to lost profits, personal harm is harder to quantify.

No NDA can legally prevent someone from reporting crimes to law enforcement or testifying in court. These are fundamental rights that cannot be contracted away.

Additionally, recent laws limit NDAs in abuse contexts:

• Speak Out Act (2022): Federal law voids pre-dispute NDAs for sexual harassment/assault claims
• State STAND Acts: Many states ban NDAs in harassment settlement agreements
• Public policy: Courts will void NDAs designed to cover up illegal conduct

A properly drafted NDA should include carve-outs allowing:

• Reports to law enforcement
• Court testimony under subpoena
• Seeking medical or mental health treatment
• Required government disclosures

For best enforceability, all parties should sign the NDA. This is one of the lessons from the Stormy Daniels case - Trump's failure to sign created arguments about whether he could enforce the agreement.

There are limited exceptions:

• Agency: Someone can sign on behalf of another if properly authorized
• Third-party beneficiary: In some cases, a non-signer can enforce if clearly intended to benefit

However, these exceptions create legal uncertainty. The safest approach is to have all parties sign.

This depends on what your NDA says. Common options:

• Indefinite/perpetual: Lasts forever (most common for personal privacy)
• Fixed term: 2 years, 5 years, etc.
• Relationship-based: Duration of relationship plus X years
• Event-triggered: Until certain conditions are met

Courts generally enforce duration terms as written, though extremely long periods for non-sensitive information might be questioned.

For relationship privacy, indefinite duration is typically appropriate - your right to privacy over intimate information doesn't expire.

An NDA only covers information from the effective date forward. It cannot retroactively make previous disclosures a breach.

However, you can:

• Prohibit further disclosure to additional people
• Require they not confirm or elaborate on prior disclosures
• Include already-disclosed information in the scope going forward

If information is already widely known (truly public), it typically can't be treated as confidential. But limited disclosure to a few people doesn't make something "public."

Infidelity by itself doesn't void an NDA. The NDA is a separate contract about privacy, not a statement about the morality of the underlying relationship.

However, some factors to consider:

• No fraud exception: If you lied to induce signing (e.g., claimed you were single), that could void the contract
• Public policy: Courts won't enforce NDAs that primarily exist to facilitate fraud on a third party (like a spouse)
• Practical reality: A jury or judge might be less sympathetic to your damages claim

Note: An affair partner exposing the affair might face claims beyond NDA breach, including intentional infliction of emotional distress or tortious interference.

The statute of limitations varies by state, typically ranging from 3 to 6 years for breach of contract claims:

• California: 4 years (written contract)
• New York: 6 years
• Texas: 4 years
• Florida: 5 years

The clock typically starts when the breach occurs (or when you discover it). For ongoing breaches, each disclosure may restart the clock.

For equitable relief (injunctions), the doctrine of laches may apply - if you wait too long to act, you may lose the right to stop ongoing disclosure.

This is often the hardest question. Consider:

Many breach situations are better resolved with a strongly-worded cease and desist letter rather than litigation. The threat of legal action is often more valuable than the lawsuit itself.