Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Contract / Contract – Confidentiality – Public Docket – ‘Litigation Privilege’ – Waiver 

Contract – Confidentiality – Public Docket – ‘Litigation Privilege’ – Waiver 

Plaintiffs have cited no North Carolina decisions which support their argument that a party to a confidentiality agreement possesses a privilege to file documents on the public record in violation of that confidentiality agreement. Business Court Rule 5 provides a mechanism for a party to request that a filing be made under seal. Plaintiffs’ decision not to use that mechanism is not protected by a “litigation privilege.” 

Plaintiffs’ motion to dismiss defendants’ counterclaim is denied. 

Defendants’ counterclaim alleges that (1) the parties’ contract required plaintiffs to keep confidential the information contained in their contract, (2) plaintiffs breached the confidentiality provisions by filing the contracts on the public docket and (3) defendants were damaged thereby. Accordingly, defendants have stated a claim for breach of contract. 

The complaint alleges that it was plaintiffs who accepted a contractual duty not to disclose confidential information. Nothing in the complaint alleges that defendants agreed to be bound by the same duty. Furthermore, defendants’ decision to file the confidential material with their counterclaim came only after plaintiffs had already put the same material on the public record. Thus, defendants’ decision to file confidential material does not constitute a waiver of plaintiffs’ alleged breach. 

Chi v. Northern Riverfront Marina & Hotel, LLLP (Lawyers Weekly No. 020-046-22, 9 pp.) (Julianna Theall Earp, J.) Katherine Burghardt Kramer for plaintiffs; George Oliver, Clifton Brinson, Grace Gregson, Kevin Ainsworth and Jennifer Carpenter for defendants. 2022 NCBC 46 

Leave a Reply

Your email address will not be published. Required fields are marked *