Does Delaware's trade secrets act wipe out the confidentiality clause's own remedies?
No. The Delaware Uniform Trade Secrets Act displaces conflicting tort, restitutionary and other law of the State providing civil remedies for misappropriation of a trade secret, but it expressly does not affect contractual remedies, whether or not based upon misappropriation of a trade secret, other civil remedies not based upon misappropriation, or criminal remedies.
The trap
The contract is the part that survives, which inverts the usual instinct to plead the statute and treat the NDA as makeweight. Because § 2007(b)(1) preserves contractual remedies 'whether or not based upon misappropriation of a trade secret', a confidentiality clause covering information that would fail the statutory trade-secret definition still gives a claim. Do not draw the obvious inference about the tort side: § 2007(a) displaces only conflicting law providing civil remedies FOR MISAPPROPRIATION OF A TRADE SECRET, and § 2007(b)(2) expressly preserves other civil remedies NOT based upon misappropriation of a trade secret. So what is displaced is the parallel tort claim over information that IS a trade secret; a tort claim over information that is not one is preserved by the statute itself. Which side of that line a case falls on turns on the statutory definition in 6 Del. C. § 2001(4), which has to be applied to the information in question. The chapter's own remedies also carry limits a contract need not: fees under 6 Del. C. § 2004 require bad faith or wilful and malicious misappropriation, and § 2006 sets a 3-year limitation running from discovery.
4 authorities
- statute6 Del. C. § 2007enactment date not established
The words that state the rule
(a) Except as provided in subsection (b) of this section, this chapter displaces conflicting tort, restitutionary and other law of this State providing civil remedies for misappropriation of a trade secret. (b) This chapter does not affect: (1) Contractual remedies, whether or not based upon misappropriation of a trade secret;
- statute6 Del. C. § 2004enactment date not established
The words that state the rule
If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or wilful and malicious misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.
- statute6 Del. C. § 2006enactment date not established
The words that state the rule
An action for misappropriation must be brought within 3 years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim.
- statute6 Del. C. § 2007enactment date not established
The words that state the rule
(b) This chapter does not affect: (1) Contractual remedies, whether or not based upon misappropriation of a trade secret; (2) Other civil remedies that are not based upon misappropriation of a trade secret; or (3) Criminal remedies, whether or not based upon misappropriation of a trade secret.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.