Standard disclosure orders require parties to disclose (1) documents on which they rely, (2) documents which adversely affect their or another party’s case, and (3) documents which support another party’s case.
Issues occur when a party to a claim wishes to disclose a document containing confidential information protected by a confidentiality agreement with a non-party, especially given that court proceedings are matters of public record. The disclosing party must retain a balance between disclosing necessary documents and maintaining confidentiality in order to minimise the risk of breaching their agreement.
Often confidentiality agreements include provisions which allow for disclosure of relevant information when complying with court ordered disclosure. This means that compliance with a disclosure order will not amount to breach. Also, provisions within a confidentiality agreement could require the disclosing party to inform the non-party of any disclosures being made. This allows for the non-party to be aware of the release of any of their confidential information and to monitor its use, where necessary.
A further form of protection exists via a confidential disclosure order, through which a court order can be made ‘restricting or prohibiting the use of a document which has been disclosed’. This protection may aid in reducing the level of use of the information disclosed albeit it would not entirely protect the confidentiality of the documents and its contents.
Those entering into a confidentiality agreement should ensure that they know the situations under which protected information may be disclosed and whether there are any additional steps available to protect the confidential information and to reduce the risk of breaching the confidentiality agreement.