Am I breaching the contract if I sue?

[Chris Atkin]

(Any common law state/country)

If I am a party to a contract and the contract has a confidentiality clause which forbids the disclosure of "confidential information" and "confidential information" includes the "existence of this contract", how do I sue the other party for breach of contract without breaching the contract? Is there a legal exception in this case?

Thanks

C. A.

 

[adjusterjack]

If you sue for breach of contract the court will not enforce the confidentiality clause if it would eliminate your right to redress for breach of contract.

 

[Chris Atkin]

Do you know of an example where this happened?

 

[quincy]

Do you know of an example where this happened?

Following is a link to a paper published by the Cornell Law Review that was written by Alan E. Garfield, Associate Professor of Law, Widener University School of Law. The paper is titled, "Promises of Silence: Contract Law and Freedom of Speech."

http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Garfield-final.pdf

The paper discusses the possible conflicts that can arise between the freedom to contract and public policy interests. Case law is cited.

 

[Paul84]

(Any common law state/country)

If I am a party to a contract and the contract has a confidentiality clause which forbids the disclosure of "confidential information" and "confidential information" includes the "existence of this contract", how do I sue the other party for breach of contract without breaching the contract? Is there a legal exception in this case?

Thanks

C. A.

I haven't read Quincy's cited paper, but from my experience, public policy virtually always trumps confidentiality. In my own pro-se case, the defendants originally tried to get me to return or destroy the documents that I would use to prosecute my claims against them. They insisted that the information was confidential. After doing some research on the subject, I ignored them.

They then tried to do the same with discovery, but the judge said they needed to make a compelling argument for whatever they claimed as confidential. They couldn't. Instead, the defendants marked every page they turned over to me in discovery as "confidential". I ignored the markings, and posted the key ones publicly on the court's website as evidence in my filing for summary judgment. The only redactions I made were for any markings such as specific dates of birth, social security numbers, or home addresses--as per the court's rules.

 

[quincy]

I haven't read Quincy's cited paper, but from my experience, public policy virtually always trumps confidentiality...

There is rarely an "always" or a "virtually always" in law.

Facts matter.

And the state (and country) name, despite Chris Atkin's and your apparent belief this doesn't matter, is in fact one of the facts that matter.

 

[Paul84]

There is rarely an "always" or a "virtually always" in law.

Facts matter.

And the state (and country) name, despite Chris Atkin's and your apparent belief this doesn't matter, is in fact one of the facts that matter.

Several years ago I researched this issue across several countries, including the U.S. I don't recall the specifics, but did not find any country on the level of the U.S., U.K., etc where confidentiality won out against public-policy interest. Would therefore appreciate your citing a specific case or legislation at a state or county level that overrules national (common) law.

If there were such a local anomaly, there must still be ways to file a sealed or redacted complaint, a la "v. 'John Doe'" to preserve the right for filing suit.

 

[quincy]

Several years ago I researched this issue across several countries, including the U.S. I don't recall the specifics, but did not find any country on the level of the U.S., U.K., etc where confidentiality won out against public-policy interest. Would therefore be interested in your citing a specific case or legislation at a state or county level that overrules national (common) law.

If there were such a local anomaly, there must still be ways to file a sealed or redacted complaint, a la "v. 'John Doe'" to preserve the right for filing suit.

Please provide the contract cases you found where public policy "won out" against confidentiality. You have researched this issue across several countries including the US, so we can start with your cases. Please limit the cases to the US. And it would be nice if Chris Atkins would return with his state name, too.

If you have not read the paper I linked to, you might want to do so now.

 

[Chris Atkin]

Delaware.

Though I'm interested in any support from any state/country.

Thank you.

 

[Zigner]

Sorry, we don't do homework.

 

[quincy]

I agree with Zigner that this is now sounding very much like a class assignment or a hypothetical situation. These are not the type of legal questions this forum entertains. We assist with real personal legal concerns.

But I can tell you that public policy does not "trump" confidentiality as often as public policy supports confidentiality in contracts, this even when the contracts with confidentiality clauses might work to conceal a crime.

As a note on your original question: A failure by one party to perform or fulfill material terms of a contract can release the other party from their own obligations under the contract (this depending on facts).

 

[Chris Atkin]

Gentlemen (Ladies?),

I assure you this is not homework, but I'll take that as a compliment as my initial thought was that this had to have an obvious/simple answer. This was a concern raised by outside counsel and, to be frank, I'm having a hard time swallowing it. Besides the public policy concerns that have been mentioned, my thinking was simply that this would be ridiculous as the other party to the contract could simply not pay and force us to breach the contract by suing.

Note, the breach here is likely not a material term breach/fundamental breach.

 

[quincy]

... Note, the breach here is likely not a material term breach/fundamental breach.

Then there is no reason to sue.