Thank you for agreeing to take time to share your experience working with Non-Disclosure Agreements (NDAs). As a lawyer, you probably know that NDAs are used in settlement agreements of all kinds as well as part of ongoing employment contracts.

Speak Out: Ending Gender-Based Violence is a project of the Community Legal Assistance Society (CLAS). It is premised on concerns about NDAs in the context of gender-based violence (e.g. sexual harassment, sexual assault, gender-based discrimination). We are seeking to understand the perspective of the legal community on the extent, reasoning, and impact of NDAs.

Your responses are anonymous unless you choose to share your contact info, in which case your individual responses will still be kept confidential to the researcher only. If you have any concerns of questions, please reach out to the Speak Out team at standinformed@clasbc.net. To learn more about our project, visit our website.

Note: We are using the term 'NDA' to include non-disparagement clauses, confidentiality agreements, and any clause in a contract or agreement that requires parties to keep silent about some or all of the underlying facts or events, or what they may know or believe about the other party.
Practice questions:

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* 1. Share your area of legal practice (you can choose all that apply)

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* 2. What percentage of your practice overall includes drafting documents or negotiating settlements in which an NDA might be involved? A rough estimate is fine!

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i We adjusted the number you entered based on the slider’s scale.
Frequency of use:

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* 3. Thinking just about the past 12 months, what percentage of settlement agreements you were involved with included an NDA? (Again, a rough estimate is fine)

0% 100%
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i We adjusted the number you entered based on the slider’s scale.

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* 4. Do you think the frequency of NDA use has changed over the years you have practiced law? If so, please describe:

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* 5. Have you advised your client to accept an NDA in the following circumstances:

  Never Rarely Regularly Often All the time Not sure/not applicable
Employment termination / severance agreements
Employment contracts
Harassment or discrimination claims
Personal injury or tort claims
Human rights cases
Commercial or business disputes
Protection of trade secrets / confidential business information

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* 6. Please share the most common circumstances in which you advise the use or acceptance of an NDA:

Uses of NDAs:

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* 7. There are common rationales that are given for including an NDA. They are listed below.

Please indicate which (if any) of these have been raised - by you, opposing counsel, or a party to the agreement - as the reason for including or accepting an NDA in cases you have been involved in.

  Yes, has been rasied No, has not been raised I'm not sure
To protect the employer's reputation
To protect employee's privacy
To protect a complainant's privacy
To ensure the finality of an agreement and no further claims
To protect confidential business information (trade secrets) etc
To prevent public disclosure of misconduct allegations
To prevent the complainant from speaking publicly
To encourage the other party to settle and thereby avoid going to court
To achieve a settlement that is higher than what might be possible in court

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* 8. Of these same rationales, which do you think might be successfully addressed by a specially worded confidentiality clause, is already addressed by existing regulation/common law, or absolutely requires an NDA? (pick best option for each)

  Confidentiality clause would resolve Existing regulation/common law covers it Only NDA addresses it I'm not sure
To protect the employer's reputation
To protect employee's privacy
To protect a complainant's privacy
To ensure the finality of an agreement and no further claims
To protect confidential business information (trade secrets) etc
To prevent public disclosure of misconduct allegations
To prevent the complainant from speaking publicly
To encourage the other party to settle and thereby avoid going to court
To achieve a settlement that is higher than what might be possible in court

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* 9. Please share a description of a case that would not have settled without the inclusion of an NDA (if you know of one). Why or why not:

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* 10. Concerns have been raised about negative impacts of NDAs by individuals who have signed one, organizations, lawyers and others. Do you agree or disagree that the use of NDAs raise any of the following concerns:

  Agree Somewhat agree Neither agree nor disagree Somewhat disagree Disagree I don't know
Workplace safety of current and future employees
Preventing the reporting of criminal acts
The mental health of a party to the NDA who needs emotional support
Perpetuate systemic inequalities
Cover up wrongdoings and information it would be in the public interest to know
Prevent employers from disclosing wrongdoing when asked for a reference

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* 11. How often have you seen a case in which one or more of the above has been the impact of an NDA.

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* 12. Section 4(3) of the PEI Non-Disclosure Agreement Act (2022) states that an NDA is only enforceable where:

a. the relevant person has had a reasonable opportunity to receive independent legal advice;
b. there have been no undue attempts to influence the relevant person in respect of the decision to include a requirement not to disclose any material information;
c. the agreement does not adversely affect (i) the health or safety of a third party, or (ii) the public interest;
d. the agreement includes an opportunity for the relevant person to decide to waive their own confidentiality in the future and the process for doing so; and
e. the agreement is of a set and limited duration.

In your opinion, would similar regulations in your jurisdiction will it prevent parties from settling?

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* 13. In the media and research, stories are being shared about how a party to the NDA doesn't understand what it means - stories that show they didn't feel they had a choice, they thought they couldn't talk to anyone, they found they were unable to get support to process the experience and move on, stories that illustrate negative impacts of NDA's in certain situations.

In your opinion, do you agree or disagree with the possible regulations listed below? NDAs should be allowed when...

  Agree, this is a reasonable limitation on NDAs Somewhat agree Neither agree nor disagree Somewhat disagree Disagree, this is not a reasonable limitation on NDAs I don't know
Both parties have received independent legal advice
Clear exemptions are set out (law enforcement, regulators etc)
It includes a way for the complainant to waive confidentiality
There is a time limit set on the NDA (so it expires)

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* 14. In cases of gender-based violence (sexual assault and/or harassment), there have been different responses in different jurisdictions. Please check any of the options below you would support:

Information about you and your practice (voluntary but helpful for us):

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* 15. Years of practice

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* 16. Practice type

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* 17. Have you participated in any professional development training that included NDAs? If so, please share the program and provider:

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* 18. Demographic information. Please check any that apply to you:

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* 19. Geographic location (either city or region and province)

Summary:

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* 20. Anything else you would like to share about your experience of NDAs?

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* 21. Would you be willing to participate in an interview to explore these questions further? If so, please share your name and email address. If you would like to be entered into the draw for a $50 gift card, share your contact info below or, to keep your responses anonymous, mail researcher alison@alisonbrewin.ca

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