1. The Legal Framework of a Breach of Confidentiality Claim
To successfully litigate a breach of confidentiality claim the plaintiff must establish the existence of a duty, the specific unauthorized disclosure and the resulting harm to the business.
This legal triad forms the foundation of the lawsuit. It is not enough to show that someone talked. We must prove that they had a legal obligation to remain silent and that their silence had economic value.
The source of this duty can be contractual (an NDA), statutory (trade secret laws) or common law (fiduciary duty). We meticulously analyze the relationship between the parties to identify every potential source of liability. This comprehensive approach allows us to layer claims for breach of contract, misappropriation of trade secrets and breach of fiduciary duty to maximize the potential recovery.
Establishing the Duty of Confidentiality
The first hurdle is proving that a duty existed. In most commercial cases this is governed by a written contract. However, in the absence of a written agreement, a duty can still be implied by the circumstances.
We argue that certain relationships inherently create a duty of trust. For example, high-level executives and legal counsel owe a fiduciary duty to keep corporate information private even without a specific NDA. We examine the employee handbook, the code of conduct and the history of the relationship to construct a web of obligations that binds the defendant. If the information was shared in the context of a potential merger or a joint venture, the law often implies a duty of confidence to facilitate business negotiations.
Defining Trade Secrets vs. Confidential Information
Not all secrets are trade secrets. The distinction is critical because trade secrets enjoy stronger statutory protection under the Defend Trade Secrets Act (DTSA) and the Uniform Trade Secrets Act (UTSA). To qualify as a trade secret, the information must derive independent economic value from not being generally known and the owner must have taken reasonable measures to keep it secret.
We litigate this distinction aggressively. Common examples of protected information include:
- Proprietary algorithms and source code
- Customer lists with non-public pricing data
- Manufacturing processes and chemical formulas
- Strategic marketing plans and unreleased product designs
We help clients conduct an information audit to categorize their data. If the information does not meet the high bar of a trade secret, we pursue the claim under the broader umbrella of breach of confidentiality based on contract law.
2. Enforcing Non-Disclosure Agreements (NDAs)
A Non-Disclosure Agreement is the primary shield against information theft but its enforceability depends entirely on the precision of its drafting and the reasonableness of its scope.
Courts are increasingly skeptical of overly broad NDAs that attempt to silence employees about everything they learned on the job. A contract that defines confidential information as all information is often struck down as unenforceable.
We draft and litigate NDAs with a focus on specificity. We argue that the restrictions are necessary to protect legitimate business interests rather than to stifle competition. When enforcing these agreements, we must demonstrate that the information disclosed falls squarely within the defined categories of the contract.
The Scope of Protected Information
The battle in court often turns on whether the leaked information was actually confidential. Information that is readily available in the public domain or that can be easily reverse-engineered cannot be protected by an NDA.
We scrutinize the specific data points involved. If a former employee takes a client list, the defense will argue that the client names are public on LinkedIn. We counter this by showing that the list contains private contact numbers, purchase history and specific preferences that are not public. We argue that the compilation of the data (rather than the individual names) constitutes the confidential asset protected by the agreement.
Inevitable Disclosure Doctrine
In some jurisdictions, we can prevent an employee from working for a competitor even without evidence of actual theft under the Inevitable Disclosure Doctrine. This doctrine posits that the employee’s new role is so similar to their old one that they will inevitably rely on the former employer’s trade secrets to perform their duties.
This is a powerful preemptive tool. We use it to seek injunctions against executives moving to direct rivals. We argue that one cannot unlearn the strategic plans or pricing models of the former employer and therefore the only way to prevent a breach of confidentiality is to restrict the employment itself for a limited time.
3. Breach of Confidentiality in Employment Relationships
The most common vector for data theft is the departing employee who decides to take a digital golden parachute of proprietary documents to their next job.
This is often rationalized by the employee as taking their own work product. However, the law is clear that work created during employment belongs to the employer.
These cases require immediate forensic intervention. We do not rely on the employee’s word that they deleted the files. We demand forensic proof. We treat the departure of key personnel as a high-risk event requiring a structured legal containment strategy.
Data Exfiltration and Forensic Evidence
Modern theft is digital. It involves USB drives, cloud storage uploads and personal email forwarding. We employ digital forensic experts to analyze the departing employee’s devices.
We look for artifacts of mass deletion, recent USB connections or access to files unrelated to their current project. This metadata provides the smoking gun. If we can prove that an employee downloaded the entire customer database at 2:00 AM on a Sunday before resigning on Monday, we have strong evidence of malicious intent. This forensic trail is the foundation for securing a court order to seize their devices.
Restrictive Covenants and Non-Solicitation
Confidentiality breaches often occur in tandem with violations of non-solicitation agreements. The employee uses the confidential client list to solicit customers for their new venture.
We link these claims together. We argue that the successful solicitation of the clients serves as proof that the confidential information was used. You cannot solicit a client’s specific needs if you do not remember them from the confidential records. We use the breach of the non-solicitation covenant to bolster the claim for breach of confidentiality (demonstrating a pattern of unfair competition).
4. Remedies and Damages for Data Leaks
The primary goal in any confidentiality litigation is to stop the dissemination of the information immediately through injunctive relief before turning to monetary compensation.
Once the bell is rung it cannot be unrung. Therefore, speed is the most important element of the remedy.
We file for emergency relief in state or federal court. We are prepared to mobilize within twenty-four hours of discovering a breach to appear before a judge and demand a halt to the unauthorized activity.
Temporary Restraining Orders (TROs)
A Temporary Restraining Order is an emergency command from the court prohibiting the defendant from using or disclosing the information. To obtain one we must prove irreparable harm.
We argue that monetary damages are insufficient because the loss of trade secrets destroys the market advantage of the business. We craft the proposed order to include a provision for the immediate return or forensic destruction of all stolen data. This effectively freezes the defendant’s ability to benefit from the theft while the litigation proceeds.
Calculating Economic Loss and Unjust Enrichment
After the bleeding is stopped we calculate the financial damages. This can be measured in three ways:
- Actual Loss: The profit the plaintiff lost due to the breach.
- Unjust Enrichment: The profit the defendant gained from using the stolen info.
- Reasonable Royalty: The fee the defendant would have paid to license the info.
We hire economic damages experts to model these figures. If the breach involved a prototype or a formula, we argue for unjust enrichment. We claim that the defendant saved millions of dollars in research and development costs by stealing our client’s work and they must disgorge those savings as damages.
5. Defenses Against Breach of Confidentiality Allegations
Defending against a breach of confidentiality claim requires a strategic attack on the classification of the information and the enforceability of the underlying contract.
At SJKP LLP, we defend individuals and startups accused of theft by established incumbents. We view many of these lawsuits as anti-competitive bullying tactics designed to crush new entrants.
Our strategy is to prove that the information was not confidential to begin with. If the information was public, there is no breach.
Public Domain and Reverse Engineering
The absolute defense to confidentiality is that the information is generally known. We scour trade journals, patent filings and public websites to find the alleged secrets.
If we can find the same process or list in the public domain, the claim collapses. We also assert the defense of independent development or reverse engineering. If our client figured out the process by taking apart the product lawfully or by developing it from scratch without using the plaintiff’s documents, there is no liability. We present development logs and engineering notes to prove the independent origin of the work.
Whistleblower Protections and Public Policy
In cases where the disclosure revealed illegal activity or threats to public safety, we assert whistleblower protections. Federal and state laws protect employees who disclose confidential information to government regulators or law enforcement to report misconduct.
We argue that the NDA is void as against public policy to the extent it attempts to conceal crime. We leverage the Defend Trade Secrets Act immunity provisions which specifically shield individuals from liability for disclosing trade secrets in confidence to an attorney or government official for the purpose of reporting a violation of law.
6. Why Clients Choose SJKP LLP for Breach of Confidentiality
We approach confidentiality disputes with the urgency of a crisis management team and the technical precision of intellectual property litigators.
At SJKP LLP, we understand that a breach of confidentiality is an existential threat to your business value. We do not wait for the damage to spread. We act aggressively to plug the leak and hold the perpetrators accountable.
Our firm is chosen because we are adept at the digital forensics necessary to prove the theft. We can translate complex server logs and metadata into a compelling narrative of betrayal for a judge. We also understand the delicate balance of litigation; we know how to litigate these cases without inadvertently disclosing the very secrets we are trying to protect (using sealed filings and protective orders).
We represent both the companies fighting to protect their crown jewels and the professionals fighting for their right to change jobs and compete. We have the resources to seek emergency injunctions across multiple jurisdictions and the endurance to pursue damages all the way to trial. When your secrets are on the line, SJKP LLP provides the sophisticated and relentless advocacy necessary to secure your intellectual property and your future.
07 Jan, 2026
