QUESTION

Is a Confidentiality Agreement enforceable during a deposition under subpoena.?

Asked on Dec 09th, 2014 on Contracts - Texas
More details to this question:
I signed a confidentiality agreement with my former employer to not disclose trade secrets and IP to other parties. I was served a subpoena by a third-party that is being sued by my former employer. Am I compelled to answers questions by that third-party that are in violation of that agreement? If so am I protected from breach of contract if doing so under subpoena? Is there a specific Texas law, procedural code or other precedent that can be cited that provides that protection?
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1 ANSWER

Appellate Practice Attorney serving New York, NY
In every confidentiality contract I prepare, the non-disclosure obligation does not apply under various circumstances, including when disclosure is compelled under a valid subpoena.  Even without such a provision, a valid subpoena trumps your contract with your former employer.  Sometimes a confidentiality provision does require the subpoenaed party to notify the other party about the subpoena, so that the party who wants to keep the information confidential can challenge the subpoena in court, but that is the only protection they have.  Even if your confidentiality agreement doesn't have such a provision, you may want to let your ex-employer know about the subpoena beforehand so that it can take whatever action it deems appropriate to fight it, but, unless that subpoena is quashed or the party issuing the subpoena agrees to limit it, you have to testify, regardless of your contract with your ex-employer.  Of course, that doesn't mean that you don't have the right to object if the questions are inappropriate. I don't know if there is a specific Texas statute on point.
Answered on Dec 09th, 2014 at 12:08 PM

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