Australia: Can a NDA be broken to show evidence in court? If a defendant says they have documents proving their case but will only show if a non-disclosure is signed and assuming the documents fail to vindicate the defendant, can I break the NDA and use those documents in court against the defendant? Thanks.
No contract can limit a court's jurisdiction An NDA is a contract: it cannot prevent the application of the judicial process. Should your dispute reach a courtroom, the NDA and the documents it seeks to protect are all admissible and you should subpoena them from the defendant and submit those copies to the court (that way you are not breaking the terms of the NDA). What is not admissible is bona fide "without prejudice" documents: that is documents that contain admissions and offers made in a genuine attempt to settle a dispute. This privilege is established by the context of the document, not by if it does or does not have the words "without prejudice" on it (except, of course, that their presence/absence is part of the context).
Senators, and anyone else for that matter, can ask any questions they want. The witness is required to answer the questions only if under subpoena, and only if the answer of the question would neither require disclosure of privileged information nor violate a 5th Amendment right (which is a form of privilege). Many things that are the subject of an NDA are not privileged information, and the fact that someone claims that something is a trade secret does not automatically make it privileged information. Privileges can be established by statute, court rule or at common law.
There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order.
The evidence will almost certainly be inadmissible And, of course, you will be disbarred and never work as a lawyer again, you might also go to jail for attempting to pervert the course of justice. Whether the person is convicted or not will depend on the strength of the other evidence the state has. In the notorious case of Lawyer X, Nicola Gobbo was acting as a barrister for a number of Melbourne underworld figures while simultaneously acting as a police informer. A number of those convicted have successfully appealed their convictions on the basis that they didn’t get a fair trial. In their judgement on AB (a pseudonym) v. CD (a pseudonym); EF (a pseudonym) v. CD (a pseudonym) [2018] HCA 58 the High Court said: But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.
It depends on what is of evidence for. Normally, any newspaper, be it &quot;tabloid&quot; or &quot;respected&quot; or even the jurisdiction's &quot;paper of record&quot; would be considered hearsay; instead the source of the newspaper story should be called to testify instead. However, there are a couple of exceptions to this, beyond normal hearsay exceptions, which basically boil down to when a certain thing being published is, in fact, the information being entered into evidence. For example, in certain circumstances, the courts may accept &quot;service by publication&quot; for certain notices. An instance of this publication would be evidence that service by publication was carried out. Another example, your link is to a lawsuit concerning defamation; defamation requires proving that the damaging falsehood was transmitted to a third party. So entering into evidence a tabloid that publishes such a damaging falsehood is evidence that it was transmitted to a third party (namely, the public).
The website owner brings in an expert programmer who testifies that the user cannot have gotten to a certain part of the site (or download, etc.) without having clicked to accept the terms of service, and that this document they're holding is a true and correct copy of the terms of service as of that date. That's evidence in favor of the site, and an adverse party has to have stronger evidence in order to overcome it. If the person didn't save a copy of the terms themselves, they'll have a hard time on this. Then the other party's attorney tries to discredit the programmer by asking questions like "how do you know there are no bugs in the software which could have allowed somebody to reach this without agreeing to the terms of service" etc. Apparently, some sites don't require users to click indicating agreement. If the company has significantly changed the site, terms of service, etc. since the time the user registered, and doesn't keep any copies of old versions around, and admits this, they'll have a hard time enforcing an agreement (as they can't produce a copy of it). If the user kept a copy, the user might be able to present that. It's up to the finder of fact to decide what to believe and how much weight to give the various witnesses' testimony.
Attorney-client privilege is normally waived if a privileged communication is voluntarily disclosed. Submission of an attorney-client privileged document to a judge to review in camera does not waive the attorney-client privilege. Most of the case law involves inadvertent "oops" style disclosures of attorney-client privileged documents (keep in mind that big lawsuits often involve exchanges of terabytes of data that have to be reviewed page by page for attorney-client privileged materials by armies of junior lawyers and paralegals, so mistakes are inevitably made now and then), which is a somewhat convoluted area of law. Basically, if it is caught soon enough, the person accidentally receiving it can be ordered to not look at it any more and to destroy it without keeping copies if it remains within an accidental recipient law firm or government agency's possession and has not been further disseminated into public records yet. In particular, such documents can't be presented as evidence at trial if the mistake is caught before it is too late to correct the mistake. In those cases, the legal system does its best to pretend that the mistaken disclosure of attorney-client privileged materials never happened.
Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country.