Alan R. Feigenbaum ●
New York Law Journal, September 25, 2024 —
Non-disclosure agreements (NDAs) and matters of confidentiality regularly intersect with divorce practice. More than that, NDAs have become so commonplace they have been referred to in mainstream media as “the defining legal document of our time.”
Over the years, this author has found that when a client asks what the consequences might be of violating an NDA or a confidentiality order, there is a dearth of decisional law to draw from in New York that can provide the client with any meaningful assurances.
That changed, however, when I read Justice Kathleen Waterman-Marshall’s decision in J.N. v. T.N., 2024 NY Slip Op 51017(U) Decided on Aug. 7, 2024.
Justice Waterman-Marshall’s decision in J.N. is critical for at least three reasons: (1) It provides the client who is concerned about his/her spouse’s violation of a confidentiality order with the assurance that yes, there are indeed consequences to such behavior; (2) It provides the client who is considering playing with fire so to speak, i.e., who is considering testing the bounds of a confidentiality order, with a clear illustration of the risks attendant to that behavior; and (3) Most importantly, the J.N. decision is a reminder that court orders matter.
That conclusion—that court orders matter—may seem obvious to some. But too often, we have seen court orders flouted, without repercussions to the party violating the court order(s) often due to an overwhelmed judicial system. The result is an ever-growing base of clients who have understandably become disillusioned and doubtful that the courts will enforce their orders.
Shifting to the substance, in J.N., the wife, in a post-divorce proceeding, moved for contempt against the husband based upon violations of a so-ordered confidentiality stipulation, two court orders and the divorce judgment (which directed compliance with the so-ordered confidentiality stipulation), as a result of the husband’s disclosure of the wife’s confidential documents and information to the public on three separate occasions.
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