Non-disclosure agreements were once primarily used for guarding corporate secrets. These days, though, you might have to sign an NDA for a first date. New York Magazine features writer Reeves Wiedeman joins host Krys Boyd to discuss the bold new world of NDAs – from professional settings to personal affairs – and why they are suddenly showing up everywhere. His article is “Hush Hush Affair.”
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Transcript
Hush Hush Podcast Full.wav
Krys Boyd [00:00:00] Let’s say you need to get something off your chest, but you wouldn’t want the whole world to know about it. Perhaps you have a dear friend you can trust. Or maybe you would feel better if you had a nondisclosure agreement in place first. From KERA in Dallas. This is think I’m Kris Boyd. I realize that sounds extreme, but legal agreements that guarantee a reward for keeping something secret and a penalty for spilling the beans have become surprisingly common in the U.S.. Used by companies with trade secrets to protect, but also by divorcing couples, employers with staff at all levels, and pretty much everybody with any power in Hollywood. In fact, my guest calls the non-disclosure agreement the defining legal document of our time. Reeves Weidman is a features writer at New York magazine, which published his article hush, Hush Affair. Reeves, welcome to think.
Reeves Weideman [00:00:51] Thanks so much for having me.
Krys Boyd [00:00:52] Just to make sure we’re all on the same page here. We should talk about what a non-disclosure agreement means. Like, I didn’t realize that by definition, someone asked to sign one. Always receive something in return for the promise not to talk about certain things.
Reeves Weideman [00:01:09] Yeah, essentially an NDA non-disclosure agreement is a contract like anything else. And in order for a contract to be enforceable in the courts, someone has to get something in, in return. And so the one of the just basic foundational things about an NDA is, is if you want someone to be quiet, you have to give them something in return. That and we’re now seeing that the, the what people are getting in return is it can be a wide range of different things.
Krys Boyd [00:01:40] Do the agreements always threaten punishment if the deal is broken by the person who promised to keep silent?
Reeves Weideman [00:01:47] Pretty much. And I mean, that’s, you know, that’s the point of the agreement you want. You want someone to stick by it. And so, you know, you you have to if there’s, if there’s no penalty on the other end, then then why would you? But I think what what differs is, is, you know, in some cases there’s just kind of a general, you know, if you violate this NDA, I can take you to court and I can sue you, and and we’ll we’ll see what happens. In in other cases, there are very specific penalties there. They’re often, financial penalties that, you know, could be could be $1,000, could be $10,000 in some cases that I’ve heard of could be $800,000, $1 million. So it really ranges just depending on the situation and and depending on the people involved.
Krys Boyd [00:02:34] The history here is really interesting. You discover that they a version of nondisclosure agreements at least originated with the maritime shipping industry.
Reeves Weideman [00:02:43] Yeah. It’s I mean, you know, fittingly for a document that is meant to keep things secret, the, the the origins of the NDA are a bit murky, but but as best as it’s sort of legal, historians have been able to sort of crack down, it goes back to, to, yeah, to shipping companies in, in the, you know, 19th and early 20th centuries. You know, they, they had, their routes that they, they traveled on and that was their quote unquote, trade secret. If you knew the fastest route to get fastest passage around, you know, the tip of South America or whatever it might be. That was an advantage to you. And so a lot of shipping companies, especially at that time, like a lot of companies were, were passed down, you know, if you were the captain of a boat, you you probably passed it down to your, your children, or or a nephew or whoever it might be. And so they were kept in these kind of tight circles as a, as a means of sort of expanding the range of people that you, you could hire and trust with your secret. They started instituting these, these agreements, that, that kept, kept the routes secret.
Krys Boyd [00:03:54] I guess I’ve never been trusted by anybody with their secrets. I have never been presented with a non-disclosure agreement. So I was stunned. Reads to read that something like a third of all U.S workers may have signed some version of these at some point in their careers.
Reeves Weideman [00:04:11] Well, you may have signed one, you may not know it at some point. You know, a lot of these things are often tucked into the end of an employment agreement. You know that’s very common now is, is that you, you’ll get a job and and you’ll, it’ll be, you know, article 23, in, in your employment contract says, you know, I will not talk negatively or I will not share anything that I learn, on this in this job. And that’s happening increasingly not just to, you know, there there is this sense that if you hire someone who’s a very senior executive, if you hire someone who is privy to very technical or proprietary information, then, you know, there’s there’s some sense in, in a company trying to lock that down. But, but we’re seeing more and more people at the sort of bottom of the corporate hierarchy. You know, the classic example is that I hear from a lot of lawyers is they’re making the janitors, you know, sign, sign NDAs these days. And so, you know, that that is just it has just become almost a kind of boilerplate, piece of, of, of, employment agreements in a lot of, big and small companies.
Krys Boyd [00:05:22] So they have been creeping into other, less commercial aspects of people’s lives as well. You discovered a martial arts teacher in Vermont issuing these to students.
Reeves Weideman [00:05:34] There’s weird situations and, you know, it doesn’t take long to kind of go searching for them online and to find them coming up in, in, in these different ways. I mean, yeah, this was a whole conversation amongst, people in, in the, the Brazilian jiu jitsu community in Vermont about one particular, teacher who, you know, if you want to get your black belt, you got to sign an NDA. So then you’re not going to run off and take everything that I taught you and go, you know, go start your own, you know, a lot of these times, in a lot of cases, these NDAs and function is a non-compete agreement or as a, as a way of, of having something like that. So, yeah, they just continue to pop up again, not just in big corporations, but but even these small, small time operations like this.
Krys Boyd [00:06:25] We’ve all heard that the housekeepers and nannies of famous people might have to sign these. They’ve been cropping up in other unusual situations in Hollywood, the actor Ethan Hawke had to explicitly, explicitly promise not to tell his teenage daughters that he’d been cast in a Taylor Swift video.
Reeves Weideman [00:06:42] Yeah, well, Ethan, Ethan Hawke has talked about this a little bit, and he he has a good, good sense of humor about it. But, you know, the this this has become just incredibly common. If you work if you work with a famous person in pretty much any capacity, it is very likely that you’re going to be to sign an NDA. And in, you know, the in this case, Ethan Hawke was set to have a cameo in Taylor Swift’s music video that came out earlier this year. And, you know, again, Taylor Swift has good reason to sort of, you know, want things to to keep quiet. Now, is Ethan Hawke going to go, you know, tell the world he’s, you know, about about this, photo shoot or this video shoot that he was on. If you don’t make him sign an NDA, he’s a professional. He probably knows that. That they’re trying to keep this under wraps. He’s probably going to respect that. And it probably wouldn’t be the end of the world if he told his his daughters, although I suppose he might be, have have looser lips about about something like that. But but again, it’s just kind of become this thing where, if you’re, if you’re working on a movie or music video or whatever, it might be someone’s album. And not just the talent, you know, that they’re worried about leaks from from the camera person, from the caterer. And, and often any time someone is working on, on a major movie set, they’re often going to be, asked to sign, like these.
Krys Boyd [00:08:07] Some artists are now worried about leaks from the audience.
Reeves Weideman [00:08:11] Indeed. Yeah. There’s been kind of some funny examples of, you know, your show up to a comedy show. For instance, Pete Davidson is is one famous example where a few years ago, the people that showed up to a comedy show he was doing and, you know, I think he was he was working out some new material. He didn’t necessarily want someone to, you know, film it and put it on the internet or go, you know, share his jokes while he was still kind of working on them. But, you know, the NDA in that case went to this kind of crazy degree where it said, you know, you you couldn’t even offer any opinions or critiques, so someone couldn’t even review his jokes. It was sort of this defense against any kind of any kind of criticism. And, and, yeah, it does get to this kind of kind of strange place, when people use them like that.
Krys Boyd [00:09:02] As someone putting things out into the world. As a features writer. Reeves, I wonder if you’ve ever been tempted to have some kind of writer on your contract that doesn’t allow for any criticism by people who read your work?
Reeves Weideman [00:09:13] I did think when I sent my editor the first draft of my story, which, as always, is not very good, that I should maybe, have him sign one. Just saying he won’t. He won’t tell the world how bad my my first drafts sometimes are.
Krys Boyd [00:09:26] So for something like this Pete Davidson show where he gives this NDA out to every single member of the audience, I mean, we’re familiar with comics saying, like, turn off your cell phone. Don’t record. Yeah, sure. Yeah. What if people chose not to sign? They had already paid for a ticket. Could they be denied entrance to the show?
Reeves Weideman [00:09:45] You know, all of it depends on the person. I mean, you know, I, I probably would need to have a lawyer on here, but I’m guessing, you know, Pete Davidson is putting on a concert at a private, venue. And, and, you know, there are certain terms to be able to attend. I could imagine there’s a universe, at least in which in which, you know, if someone were not willing to sign something that they could be prohibited from entering. I think what you find in a lot of cases and I think we we know about this Pete Davidson case because I believe there was a woman who had gone to the event and was just like, you know, posted about the ridiculousness of it online and even posted the actual agreement, which I don’t believe she had signed, and obviously, which she, she violated. And and I think in a lot of these cases, the person who’s giving out the NDA, you know, they don’t want to come after you, they don’t want to prohibit you, from coming to their event. Some of this is is just an extra layer of protection and a little bit of a bluff, even to sort of say, you know, are you really going to go talk about, you know, my comedy set? You know, do you really want to risk the possibility that I might might come after you? And you’ll find plenty of cases where people, will go in and not sign them and just sort of get around it. And so there is this just kind of weird dance between the people trying to get them to sign, saying something, and then the people being asked.
Krys Boyd [00:11:14] I get it, nobody wants to get sued. And I recognize that, you know, an artist working out material might feel especially vulnerable before that material is fully ready for primetime. You do have to wonder if putting out this non-disclosure agreement sort of puts the idea in people’s head to go and say something about the show where it may not have occurred to them before.
Reeves Weideman [00:11:35] Yeah, well, I think there is this element of of getting an NDA where you get one. You’re kind of like, oh, interesting. What am I about to see? You know, it, it kind of makes it almost, you know, just more, more appealing or you’re more curious about it and, and yeah, I think, I think there could be kind of some, some warped, incentives for people, you know, everyone loves to be, the person who breaks their NDA. It’s it’s become a little sort of a, a valorous thing on TikTok. You’ll have people just, you know, airing, you know, supposed secrets, even if the secrets are kind of boring. Yeah, they they get some excitement, actually, from from being like, you know, I’m not supposed to tell you this, but. And go from there.
Krys Boyd [00:12:15] I mean, this place where NDAs are more and more common, also speaks to an erosion of trust among people, right? Presumably. I mean, I’m sure there have always been people who like to spoil secrets, but, you know, 20, 30 years ago, if a comic had said, hey, I’m still working on this, don’t tell your friends what you heard tonight. This is the show is just for you. I think a lot of people might have felt just kind of like an ethical compulsion to try and stick with that. Nowadays, it’s like we we can’t imagine that that would be enough.
Reeves Weideman [00:12:48] Yeah. I think the other element of this is, is 15, 20, 30 years ago, if if you wanted to go talk about Pete Davidson’s, comedy routine, where were you going to go? You were going to go tell your buddies, you were going to tell your friends, your family, whoever it was. Now, you can walk out of the theater and point your, camera. Phone at you, at your face and say everything that just happened. And and so a lot of this is a reaction to social media and how easy it has become for people to talk about anything, and whether that’s talking about someone critically or just talking about them in general. And so I think in some senses there is this kind of understandable, reaction to that. But it, it clearly, to your point, I think in addition to that does represent this, this feeling that, that we can’t trust each other. So I think it’s I think it’s been easier to, to break, the trust that we have, in each other. And so that has just kind of fuel that feeling, for people.
Krys Boyd [00:13:58] Reeves. It is easy to misunderstand what the First Amendment actually does for us, which is partly to keep the government from interfering with speech. I mean, are, non-disclosure agreements legally enforceable if they allow a private entity to silence someone?
Reeves Weideman [00:14:16] Long story short, yes. And I think you make the point is, is, you know, there are, you know, the First Amendment is there to, to protect us from the government. And, and I think, you know, conceptually, I think there is a way in which, you know, NDAs seem, feel very counter to, you know, to the rights that we, that we have in the First Amendment and, and that we, we believe in. And so, you know, I think there is sort of a, you know, an ethical in it and, and a somewhat legal argument, against them, for, for that reason. But ultimately, you know, again, that’s, that’s where you come back to these, these, these NDAs, this contracts, you would you agree to do something and, and, and so you, you, you do need to abide by it. Whether someone is going to actually come after you, whether someone is going to enforce the contract, is is another question.
Krys Boyd [00:15:13] The producer, Harvey Weinstein, is now infamous for his use of these, including in cases where the nondisclosure agreement prevented people who said they had been sexually abused by him from going public. With that, broadly speaking, are these things always sort of written in favor of whoever has more power to begin with?
Reeves Weideman [00:15:34] Of course, you know, that is, that is this is ultimately a tour tool of the powerful and and whether it’s Harvey Weinstein or it’s, some big company trying to protect some tech company trying to protect their algorithm, they are going to write the document, to be as favorable to them, as it possibly can be. One thing that has happened, however, is, is that the courts have looked somewhat skeptically on, NDAs, that are so broad as to make it impossible for someone to even, you know, talk about they’re working for someone, talked about their talk about their lived experience. There has been some pushback from courts. And so often what you’ll see is, is the documents are, tailored in, in certain respects. And I think in some ways this has even changed since in some of the revelations about about Harvey Weinstein and his use of them to where, you know, you you want the NDA to be specifically tailored, to, you know, secrets that you learned. There there are now laws on the books. Speaking of some, some sort of protections against NDAs, in, in many states and in the federal government that that prohibits, at least in many cases, NDAs being used, to cover up, harassment or or discrimination. And, and of course, one thing, that, it’s always the case is if someone commits a crime, you can an NDA cannot stop you from from reporting that crime to to the police. I think in the Harvey Weinstein case, you see, the the power that these documents have even even given, that because he was so powerful and this cone of silence just made people so scared, even to report, to, to legal authorities, some of the horrible things he had done.
Krys Boyd [00:17:31] Yeah, I imagine there were cases in which people were frightened of doing things that weren’t even covered by the NDA in terms of, you know, revealing things. And, and it’s easy in the abstract to say, well, if you don’t want to sign this thing, don’t sign it and don’t take the job. But like when you think about how hard it is to get jobs in Hollywood and how desperate people are, it doesn’t really feel like there probably is much of a choice.
Reeves Weideman [00:17:58] I think that’s right. I mean, you know, people especially, you know, I mean, you could look at it a different ways. It. Yes. In Hollywood, it’s difficult to get these jobs. That’s one reason people are so willing to, to, to sign these things. When, when they’re just starting to get their foot in the door, it’s hard to get jobs all over the place. And so if you’re, you know, if you’re showing up for, for work, again, to use the janitor example, and someone wants you to sign an NDA and you need a job, are you really going to fight that? Are you really going to be in a position where that’s the thing you’re going to negotiate over, when you might be asking for a slightly larger salary? So I think a lot of people, you know, you do in some senses have a choice. Of course, everything is a negotiation. But in so many cases, I think people fear and feel that it’s they push back on these things. They’re just going to move to move on to the next candidate.
Krys Boyd [00:18:54] You know, that NDAs can be proactive or retroactive. What is the difference as it relates to these deals?
Reeves Weideman [00:19:02] I think if you take the job example, there’s sort of two ways of looking at it. One is, you know, you you show up and, and you’re getting hired for a job. In your first day, you’re asked to sign an NDA that basically says anything that happens from here on out. Any secrets you learn? You won’t be able to, to talk about, fast forward, three years later and, let’s say that your company, mails you and, and some of your other colleagues off, off. And in exchange for receiving severance, companies will again, you know, just to sort of button things up, say, you know, we now want you to sign a different NDA in order to, to, to receive this severance. The other example, which again, can happen in a workplace, as it did with Harvey Weinstein, is something bad happens to you if you’re harassed by a boss, if you’re assaulted by a coworker, if you have something, that your company, or any powerful person wants to go away, oftentimes you will enter into some kind of negotiation, where there may be some kind of monetary settlement. But often in exchange for that, the, the more powerful party, the offender in this in this case, will insist, and push for, an NDA to be part of that settlement.
Krys Boyd [00:20:22] How long can these things last? Is that just dependent on how the agreement is written?
Reeves Weideman [00:20:28] It depends on the negotiation there. There are NDAs, that are time limited. You know, often, you know, of course, in the case of Ethan Hawke working on Taylor Swift’s music video, you know, once it’s out, once the music video is out, you can you can talk about it. There will be ones that last for, a few years, and then there will be ones that last forever. And I think, again, those are those are ones in some cases that that courts, you know, have looked on with, with at least some skepticism. But, you know, when, when the lawyers are sitting down to draft these things, they’re inclined to, you know, at least start from a position of, you can’t talk to this, for as long as you have.
Krys Boyd [00:21:10] So what really happens if one party breaks the deal? Like how often are these things pursued? If somebody breaches the agreement.
Reeves Weideman [00:21:21] It’s, you know, it’s hard to put a number on this, but, you know, I but I have heard of cases and often what will happen is, is that it happens quietly. It is it is relatively rare. But but by all means, not unheard of for for someone to, be taken to court. Often what happens in these agreements is that they include, another provision, calling for forced arbitration. And what that means is that if there is a dispute, if one if one party says that the other party has violated the NDA, then you enter into a private, confidential, arbitration process, where, an arbitrator, not a judge, not a jury, decides, what what happens here? So a lot of times these are designed to keep, the, the, you know, these, these disputes out of the public. And often what happens even more before that is I’ve heard cases of people talk to numerous people who, you know, they they sign an NDA, with someone. And over the years, they hear from that person’s attorney. Hey. Want to we kind of heard their people talking about this. We want to make sure you’re not doing that. Or we saw something you said, and and we we think that could be a violation. So don’t do that again. So there’s a lot of of that kind of happening sort of soft power. I guess to, to keep people from, from speaking up.
Krys Boyd [00:22:56] You mentioned earlier that these cannot be legally used to prevent someone from reporting a crime. But what if someone you know received a non-disclosure agreement as part of a settlement, and something that might have been prosecuted as a crime was at issue, but it was never taken before the courts.
Reeves Weideman [00:23:16] You know, again, I should I should speak, somewhat cautiously as, as, not being a lawyer myself, but but oftentimes, there would be nothing from, from at least, you know, preventing you from, from going to the authorities from, from bringing a case. In many situations, you know, someone is not, you know, a the, the individual who, who was was harassed or whatever it might be is not interested in dealing with with a trial. They want they do want to find some resolution. They want this person to be chastised, but they themselves in in it to pay some penalty. But they want to to keep it quiet. So so there wouldn’t be anything to prevent you. But, for a lot of people reaching some kind of confidential settlement, that that allows them to, to move on, is something that they want.
Krys Boyd [00:24:10] Yeah. We should note that there are people who defend these on behalf of the people forced to sign NDAs, because this may be the only way that they actually can be compensated for whatever ordeal it was they went through.
Reeves Weideman [00:24:22] Yeah, there’s a there’s certainly a line of thought from, from a lot of plaintiffs lawyers who represent people who’ve had bad things happen to them that that the the NDA is, in fact a negotiating tool and that it is your best bargaining chip. And if you want someone in all of these cases, virtually all of them, the perpetrator does not admit to liability. They are they are, in fact, paying you, to basically make this go away to avoid going to a trial where they might need they might be found, be found guilty, and, and have to pay even more than they might in a settlement. So a lot of our lawyers will argue that the, the NDA, the silence is and the peace, and the peace of mind of knowing, that there is this protection that someone is not going to talk about something, that that is what people are paying for it. I think we were an interesting experiment that, it sort of was, was conducted is happening in new Jersey. New Jersey has, explicitly banned all NDAs, around, harassment and sexual harassment and sexual discrimination. You cannot enter an NDA. No, no matter what. There was a survey done by a professor at Penn State University who talked to plaintiffs lawyers, talked to corporate lawyers, talked to people who who deal with these issues before and after that law went into effect. Now, I believe 4 or 5 years ago, and they actually found no impact on settlements, that there that unlike what, what lawyers think, and what many lawyers say that it turns out you can still reach a settlement without an NDA. People still want. You know, to to buy peace. So to speak. They do not want to risk going to a trial. So, you know, it is a bit of a, a pipe dream to think that NDAs are going away, but we at least have this small experiment that suggests that, that banning them in certain situations, may still allow victims to, to reach, the settlements that they find helpful.
Krys Boyd [00:26:33] Is there any evidence that the prevalence of NDAs, Reeves might have a chilling effect on whistleblowers?
Reeves Weideman [00:26:39] I think that’s certainly a fear, and I think there is probably a good amount of evidence, that that that is the case. You know, it’s so hard to be a whistleblower, as is I know this from from being a journalist, and trying to get people to, to tell me things about companies that they worked for, about people they’ve worked with. It is so it is so difficult, to, to get people to do that. And in many cases, I’ve run into, people who say they’ve signed NDAs, for in one situation or another. And that’s the reason they can’t talk to me, even if, even if they might otherwise want to, even if I promised them privacy. And I think there is certainly been the case. That’s certainly been the case. In, in, I think, government regulations. The SEC in fact, has has a rule, NDAs are so prevalent and have been such a problem in the finance industry, protecting, executives in, in companies from, you know, from for people reporting things that they see in company in, in their financial institutions that might violate one law or another, insider trading, as one example, they’re so prevalent that the SEC now pays whistleblowers simply to report the existence of NDAs because they believe that these NDAs, are so, onerous in terms of, of keeping people from reporting things.
Krys Boyd [00:28:07] I mean, based on your experience as a journalist talking to subjects who might have information that, perhaps ought to be made public, I mean, should we be concerned about the kind of, small democratic effects of all these indicators?
Reeves Weideman [00:28:23] I think we should, you know, I’m biased, certainly in my profession, but but I, I know for a fact that, that, we are not getting a full view of what is happening, in, in the world. And that and one of I think one reason is, is the prevalence of NDAs. It gives people, it just makes gives people an extra layer of fear. It is already very difficult to to talk to a journalist, to blow the whistle to the government. There are already so many, challenges and fears that that come along with that. But yeah, I think adding this additional layer of, fear, adding this, you know, for, for people to, to have to think like, is it worth it for me to talk to this journalist if my old company can go and sue me for tens of thousands of dollars? You know who who’s really going to take that risk? Even even if the risk is small?
Krys Boyd [00:29:20] It also has to be. I mean, I don’t have to preserve people’s anonymity, but for journalists who do like, the responsibility of that is just enormous. And and it’s incumbent on you to protect sources. That that’s got to feel very challenging and very waiting.
Reeves Weideman [00:29:39] There is some pressure. And I think, you know, I certainly take it very seriously. And I guess I should say, you know, and somewhat as a pitch to potential sources, I talk to people who are breaking NDAs all the time. You know, for for every person who says, I can’t talk to you because I sign an NDA, there’s another who said, you know, I signed an NDA. So we need to be careful about this. And and, you know, I think, I think the best journalists, can find ways to, to protect their sources, while also, you know, trying to get as much of the story, out as they can.
Krys Boyd [00:30:13] Another thing you describe here is the way people like issuing NDAs. Maybe attorneys keep innovating in terms of what they limit, what they require of the people who sign. What are these things called non disparagement agreements?
Reeves Weideman [00:30:27] Yeah, I mean one lawyer described it’s an arms race. You know, you have these teams of corporate lawyers who are coming up with new and different ways to make these things even more enforceable in different ways. and non disparagement agreement is actually a slightly narrower version of an NDA has obviously the same acronym. In an NDA, you’re being told not to say anything about a particular subject at all. With a non disparagement. You are and that’s not to say anything bad about someone, and you’re not supposed to criticize someone. And and I think, you know, certainly most lawyers, most judges look, look at this as more reasonable. You know, it’s it’s not telling someone that you. Can’t talk about at all about something that happened to you, but it is acknowledging, you know, in most cases the non disparagement, I think, comes in into play with some kind of settlement. It’s acknowledging, you know, that the parties have come to some kind of agreement and we want to move on. And so we’re not going to not going to say mean things about each other.
Krys Boyd [00:31:29] I thought it was interesting that these non disparagement agreements are sometimes used by people going through like a messy or a public divorce. I mean, in some ways it sounds like maybe it’s good for everybody involved.
Reeves Weideman [00:31:41] I think so, you know, marriage is a contract. And so, you know, they’re having the NDAs as part of that. You know, in some ways it makes a certain amount of sense. But but what we found is, is there have, you know, NDAs have been used. I would say, you know, for, for the past several decades in, in very high profile divorces, celebrities, primarily, have, have used them. But yeah, it comes into play. I mean, it’s, it’s like any sort of negotiation. You, you’re when you’re going through a divorce, you you’re negotiating, you’re splitting up your, your finances, you’re dealing with with children, you’re dealing with all these other things, and you’re also dealing with the fact that you know, the person that you are divorcing from in many situations, really doesn’t like you anymore. And, and so there there is in some ways, I think in some ways there there is a reasonableness to it. And the divorce is, is potentially. I mean, you do have situations in divorces, obviously, where where one party has significantly more power leverage than the other. In other cases, it can be a protection to to both parties who who simply want to move on. I think the danger comes in that, that you kind of don’t always think about, you know, some of the ways that that signing an NDA about your personal life, might, might come back into play later on.
Krys Boyd [00:33:02] I understand. Let’s just take Apple as an example. If you are interviewing for a job where you’ll be involved in product development and things that are considered, you know, proprietary, before you know you receive that job, maybe you’re required to sign an NDA, but you discovered that some people are using non-disclosure agreements to even decide who gets to be interviewed for a job. If you if you don’t sign, you don’t get to come in and talk yourself up.
Reeves Weideman [00:33:28] Yeah, I think it’s, it’s, you know, to to take their perspective, take companies perspective on this for a moment. It’s, it’s like, well, we want you to come in, and we’re going to tell you some of our secrets because we want you to know, to see if you’re you’re capable of this. And I think, you know, this has come up, I think, most commonly in the tech world where you will see, people who work for one startup, being poached by another company, not wanting them to run back to their previous company and tell everything that they learned about their competitors. So you can understand it to a degree. But I think it is, again, just this, this encroachment of this document, even even earlier into the job seeking process.
Krys Boyd [00:34:11] Some of these, I have to say, is just sound ridiculous. People who go to work for the actor Leonardo DiCaprio or are told to promise not to tell anybody they even know him.
Reeves Weideman [00:34:24] Yeah. You’ll hear sort of funny conversations in, in Hollywood, where people are just kind of out talking about what they do and where they work, and then eventually it’ll, it’ll inch towards. Exactly. So who what company is that? Who? Who do you work for? And and people will, will clam up. You know, I, I this is just a sort of anecdotal example, but but my editor was while we were working on this was out to dinner, and, the woman at the next table, was a nanny for, for someone famous. And she appeared to be on a date, maybe even a first date. But she just could not would not share any information, about, the, the people she was working for. So there are all these really serious ways in which NDAs, can have an effect on on things. And there are also just these kind of bizarre, strange ways in which they can come into play in people’s personal lives.
Krys Boyd [00:35:20] And yet, it’s funny, because I do think it sounds ridiculous to not be able to say that you work for someone you know, let alone say what their habits are. But I think any one of us who is not famous, but thought of having, you know, someone in your household telling all your secrets, we really wouldn’t want that. The difference is, nobody’s motivated to know my secrets.
Reeves Weideman [00:35:40] Perhaps worse. Yeah, yeah, I know, and unfortunately. Or may or may be, fortunately, I guess, yeah, I think, I think there is a, there is a certain level of, of reasonableness to it, you know, these are if you’re if you’re taking the Leonardo DiCaprio example, he’s, he’s in the tabloids every other day and has been for decades and, and you know, you you on the one hand you do want there to be enough trust. You do want, to to think that the people you’re hiring, or the people you’re going on a date with or the people you’re having with over to a party, are people you can trust. But, you know, celebrities in particular, their brands are essentially companies. They’re they’re analogous in certain ways to to a trade secret word that they need to protect. And and so while it’s it’s sort of crazy making to think about how we’ve gotten to this point, you can also understand these for, for something like that, how this can make some sense.
Krys Boyd [00:36:36] You learned that NDAs are being used in some strictly social settings, like parties.
Reeves Weideman [00:36:43] Yeah, it’s creeping into our personal lives, which I think where is where? This is getting kind of weird. I mean, I heard a couple examples. Again, this was these were people in Hollywood, not famous people, and not even going to parties that at, at houses of famous people. But in one example, showing up to the home of, you know, a successful Hollywood executive and finding a stack of NDAs at the door that every, every guest, was, was being asked to sign. And, and as the person who, who went to this party told me, you know, it wasn’t like something crazy then happened at this party. In fact, he described it as kind of a surprisingly boring party. So it wasn’t necessarily that there was something that was going to happen, that, that needed to be concealed. But for a certain kind of person, this has just become kind of your basic checking the boxes thing, that you do to protect yourself.
Krys Boyd [00:37:37] Well, I mean, you mentioned the fact that, you know, for celebrities, their personal brand is who they are and has a lot to do with their ability to get work and make money. But now we live in an era where lots of people have what they consider a personal brand on social media. Are people starting to use these agreements to protect their personal brand, even if they are not like a household name?
Reeves Weideman [00:38:03] I think they are to a degree. I think that, you know, as with everything, it sort of goes from celebrity to then anonymous rich person. You know, who who are who are kind of using this. I think it it hasn’t totally trickled down to, to just your, your everyday Joe kind of person, giving this to their family members or people they’re going on dates with. But it’s, it is kind of trickling down slowly, to, to where you’ll have people who buy any, you know, one example I heard from a, from a lawyer was, you know, and she deals with this with a lot of, prenup agreements, for instance. Someone who who has a startup, you know, they are they are not famous, now, but they’re the kind of person who thinks they might be famous, one day. And, and so some people are just thinking, proactively about these things.
Krys Boyd [00:38:58] There are also people who want an NDA signed before starting up a romantic relationship.
Reeves Weideman [00:39:07] This is where it feels like we’ve crossed some kind of valley into into something strange. But yes, there there are people, you know, again, this is sort of started with celebrities. Where where some celebrities have sort of notoriously asked, partners, to sign NDAs. But what I found, was kind of talking and this was largely, talking to sort of high end matchmaking services. And in fact, one that I spoke to, that actually, you know, they have a lot of business in New York and Los Angeles. But the, the Dallas and Austin areas where we’re a place they said they had, you know, was sort of one of their biggest regions. Yeah, they were finding more and more that that men were coming in. And these, these were in some cases, you know, people with a public profile and other cases, again, just kind of wealthy people who want to maintain their privacy, coming in, with them before a first date, before the person they’re going on a date with would even know who they are. And, you know, on the one hand, again, you you can kind of understand, for a certain kind of person. Okay. You you want some privacy? You want to know that you’re going on a date with someone who wants to be there with you and isn’t just going to go spill the beans. On the other hand. And again, talking to some of these matchmakers, a lot of them will push back on people who are doing this and just say, you know, do you really want to start your first date by handing someone a legal document? It’s a little bit weird.
Krys Boyd [00:40:38] Yeah, it’s been a while since I’ve been in the dating market, but I feel like I would run away from anybody who wanted an NDA before a first date.
Reeves Weideman [00:40:46] Yeah, you do kind of wonder. So what? What’s going to happen? What’s going to happen on day three? You know that that that you’re so, you’re so worried about.
Krys Boyd [00:40:54] Are people thinking before they consciously break an NDA? You mentioned that people love to sort of violate their NDAs in a very public way. What are some of the reasons people do this?
Reeves Weideman [00:41:06] It depends. I think you have the kind of person who who goes on TikTok and says, you know, I signed an NDA with so-and-so celebrity eight years ago, and now I’m going to tell you some funny detail. And and it goes viral in some way. And so I think people, you know, there is a way in which NDA breaking has had this kind of cultural cachet now, but then you have the much more serious version of it, which is, is someone who has has seen something bad happened. And in, in some cases, in a couple cases where I talk to people, it wasn’t it wasn’t necessarily that they had, you know, that they had had something horrible happened, but they may have worked at a company. And I’ve encountered this in, in my, my own reporting, where, you know, bad things had happened, things that, should be criticized, whether it’s the example we use in the story was, a woman who who had been had been fired from Blue Origin, which is Jeff Bezos spacecraft company, and she and other employees had had a range of concerns that ranged from discrimination to to actual kind of safety issues, with, with the, the product they were building. And she agonized for a long time, about, about whether or not to, to break her NDA shortly before she, she decided to do so by publishing an essay along with some of her colleagues. She got a letter from, from the company’s lawyer saying, you know, we are going to if you publish this, we are going to claw back, you know, the $48,000 of severance, that that we paid you, so she, you know, goes and calls her mom to say, hey, I’m doing this. I might I might need some some help. Many people, including her mom, were telling her, you know, is this really worth it? Like you. Are you really going to go to all this trouble and risk this? And so it was an agonizing choice. And and and for her, she she eventually felt just like she she had to do it. She needed to, to share this, and, and it turns out she did. And, and the company never came after. And there’s, you know, every lawyer will tell you, you know, you need to take these things seriously. People do get sued. People do, you know, go to court over these things. But there is another school of thought that if you do speak out, if you make enough noise that, you know, the, the, the, the other side isn’t, isn’t going to come after you because they know that coming after you as a whistleblower, is probably only going to make things worse.
Krys Boyd [00:43:37] Reading your piece, one strong irony occurred to me, which is that, you know, people leave companies sometimes they have bad things to say about their former employer. And we generally take this with a grain of salt. Right? Like maybe everything was as bad as they said. Maybe they’re just disgruntled. It feels like if somebody had an NDA and then speaks out, whether truthfully or not, the existence of that NDA that they have broken lends credence to whatever it is they might say.
Reeves Weideman [00:44:03] I think that’s probably true. I think there’s there probably is an extra, layer of, of credibility, to, to someone who, who breaks one of these things just because, you know, again, you’re very, very few people are going to flippantly just, just break, an NDA just for fun or, you know, they there are all the studies of the number of times people actually make something up as is. So, and, and so, you know, the idea that someone is, is going to do that, when they’re taking a very real, concrete legal risk. I think it does. It does little bit of credibility to Matt Reeves.
Krys Boyd [00:44:40] Whitman is a features writer at New York Magazine, which published his article about the expanding use of nondisclosure agreements under the headline hush, Hush Affair. Reeves, thanks so much for the conversation.
Reeves Weideman [00:44:52] Yeah, thanks for having me, Chris.
Krys Boyd [00:44:53] You can find us on Facebook and Instagram, and you can subscribe to our podcast. Wherever you like to get podcasts, just search for KERA think and it will pop up. Or if it’s easier, just listen to the podcast right at our website. Think scary dawg. Again, I’m Chris Boyd. Thanks for listening. Have a great day.
