Evil Lawyer Tricks: Gag Orders, Free Speech, and Non-Disclosure Agreements
By Nate Thayer
February 6, 2016
Yesterday, I was contacted, unsolicited, by the folks who are responsible for the epic TV hit reality series “Housewives of New Jersey.” They appear to want to make me a TV star.
My name is Karen XXXXXX and I am a Producer with Leftfield Entertainment, an ITV company. We’re currently working on a new series with the world’s leading Internet television network that will feature the highest level of investigative reporting in a news documentary format. The series will feature seasoned Investigative Journalists as they explore both domestic and international crime, using some of the most advanced and unique technologies available. I would love the opportunity to speak with you in more detail about the project. If you are interested in learning more, we can set up a time to connect this week, either in person (if you are NYC-based) or via the phone.
Looking forward to speaking with you.
Documentaries Leftfield Entertainment
The information in this email and any attachments may contain proprietary and confidential information that is intended for the addressee(s) only. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, retention or use of the contents of this information is prohibited. When addressed to our clients or vendors, any information contained in this e-mail or any attachments is subject to the terms and conditions in any governing contract. If you have received this e-mail in error, please immediately contact the sender and delete the e-mail.
Feel free to give me a shout anytime. I am based in D.C. and at 443 205 9162. Your project sounds like it could be intriguing.
443 205 9162
Karen responded promptly:
Thanks for the quick response. How about we set up a call for tomorrow (2/3) at 2 pm?
Does that work for you?
Looking forward to it!
Being the polite professional that I am, I responded to her response to my response:
I have a meeting tomorrow that will finish by 2:30. Does that work for you? If so, it is a plan
2:30 pm EST works perfectly! I will put that in my schedule. I will initiate the call.
Looking forward to it!
Just tried to reach you but it didn’t go through. Can you give me a call at 202 xxx xxxx extension xxxx
Will call now
Karen and I talked.
She works for a big time New Yorky, Hollywoody outfit, Leftfield Entertainment, of which 80% was recently purchased by ITV for $360 million dollars. Leftfield Entertainment are the folks responsible for the “Real Housewives of New Jersey” and the “Pawn Shop”, which features the real life adventures of a Las Vegas pawn store proprietor. They have a new reality TV show in the works featuring investigative journalists and they are keen on having my fat-bellied, bald-headed self become a Hollywood pin-up boy, it appears.
Karen to me:
So let me give you the brief outline. We are one of the leading documentary filmmakers in the world. We are in the production process of a new television series that will feature famous investigative journalists like yourself pursuing true crime stories.
Me: I see. Do you realize I am fat and bald and have—to some potential viewers– very, very unappealing teeth?
Karen: No, I didn’t.
Me: Well in the interests of full disclosure, I am.
Karen: I can’t tell you much about the details about the project until you sign a legal non-disclosure agreement.
Me: I see. Well that does make it a bit difficult to have a conversation about the subject at the moment, no?
Karen: Yes. But if you are interested, I can email you the NDA form and then I will be at liberty to discus the details.
Me: Well, let me ask you this. I take my profession rather seriously. Does this involve real journalism and would real journalists—that would be me—choose the story or would it be you people?
Karen: It would be a combination.
Me: I also need to eat. Does this project involve paying me real cash money. I really have no need for the fame—which honestly is a downside—but I do need to feed my starving children.
Karen: There would be compensation.
Me: I see
Karen: I can’t talk about the details until you sign a NDA, but we are featuring a ground breaking investigative tool created by Microsoft.
Me: I see
Karen: Our producers would meet with you here in New York, and if they decide to choose you, you would be working with them.
Me: Choose me for what?
Karen: Unfortunately, I can’t really tell you the details until you sign an agreement.
Me: Let me get this straight. You want me to sign a gag order of prior restraint in order to have me be in some murky pool of reality TV wannabees to participate in your for-profit project of which you can’t tell me what it is or whether you will pay me but I have to agree to shut up before we can have a conversation where you are able to detail the specifics of what you are asking me to do, maybe for free?
Karen: Yes, basically.
Me: You did call me, right? And you do realize I am a journalist, right?
Karen: Yes, that is why I am contacting you, because of your reputation as an investigative journalist.
Me: I see. I do take my reputation seriously so I appreciate that. It seems like we really can not move forward in this conversation until that NDA is signed so why don’t you send it along and then we can discuss the details.
Karen: Perfect. I will do that now.
Presently, I received the following email:
It was a pleasure speaking with you today! As discussed, I’m attaching a copy of the NDA here. Please review and return your signed copy via email at your convenience. If you have any questions or concerns please let me know. From there, I would love to schedule another time to discuss the project in greater detail.
Since I have not signed said NDA, I am posting the above conversation and the below text of the NDA.
Honestly, I may still sign it and then further report on the clueless outrage that some bonehead TV hacks controlled by lawyers and driven by greed would have the airhead audacity to try to gag journalists while attempting to recruit them to participate in their stain on the institution of a Free Press.
Fuck them if they try to enforce it. In lawyer speak, I am firmly in the category of “judgment proof” because you can’t get blood from a stone. But you can suck the life out of someone’s integrity. For the record, that will not be mine….
Here is the unexpurgated non-disclosure agreement:
“The following sets forth the material terms of the agreement between Leftfield Entertainment LLC, its parents, affiliates and subsidiaries (collectively, “LFE”) and _______________________________ (“you”), in connection with certain confidentiality requirements concerning LFE regarding information to which you may be exposed by virtue of your relationship with LFE or otherwise. This agreement may be entered in conjunction with another engagement agreement by and between you and LFE or may be entered into alone. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you hereby agree to the following:
You agree to keep strictly confidential and not to disclose, or cause to be disclosed, to any third party any information which may be confidential/trade secret information regarding LFE and/or its affiliates or subsidiaries including, but not limited to, methods of doing business, program ideas, business data, future plans, casting and marketing strategies, financial results and business conditions, the terms of any agreement with any employee, vendor, licensee, program participant or other third party, any nonpublic information in any way related to LFE and/or its affiliates, subsidiaries and licensees and any information related to any potential or actual past, present or future LFE programs, including, without limitation, LFE’s intention to develop programs, any proposed program formats, contents, casts, characters, or other elements under consideration by LFE for inclusion in any program, the terms and conditions of this Agreement, and any and all other information disclosed to or obtained by you at any time from any source concerning or relating to the development, production, distribution and/or other exploitation of any such programs (collectively, “Confidential Information”), except as expressly authorized in advance by LFE in writing; or as required by law or order of a court of competent jurisdiction.
You further acknowledge and agree that any direct or indirect disclosure of any Confidential Information will constitute a material breach of this agreement and will cause LFE substantial and irreparable injury entitling LFE to, among other things: (i) if you are presently engaged by LFE, your immediate termination for breach of the terms of your engagement; (ii) injunctive or other equitable relief, without posting any bond, to prevent and/or cure your breach or threatened breach of this agreement; (iii) recovery of any damages suffered by LFE arising from such breach or threatened breach including, without limitation, any attorneys’ fees, legal expenses and court costs incurred to enforce this paragraph; and (iv) disgorgement of any monies, profits, or other consideration or benefits which you derive from any and all sources (including but not limited to LFE’s competitors and the media) relating to any disclosure or exploitation of any Confidential Information, in each case without prejudice to any other legal or equitable rights or remedies that LFE may have as a result of a violation of the terms hereof. In no event shall you be entitled to equitable relief or otherwise to enjoin, restrain or interfere with the proposed development, production, exhibition or other exploitation of such programs. You agree to honor the provisions of this agreement in perpetuity.”
I will return this signed to Karen today, along with the above commentary. Frankly, my future as a Hollywood poster boy appears bleak.