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File Preliminary Notice for an NDA-Protected Project

Is there any special step to do to file Preliminary Notice for an NDA-Protected Project? The NDA states all information obtained from working on the Project or any other information that is disclosed to Recipient by our company whether in electronic, oral, written or other form, including, without limitation, all third-party information that our company is obligated to keep confidential.

1 reply

Aug 16, 2019

Generally, Non-Disclosure Agreements ("NDAs") protect confidential information that's shared in the course of some business relationship. However, the information contained on a preliminary notice will often be outside the scope of what's considered "confidential" under the agreement. Typically, that information will be pretty easily available. So, a good first step may be to look at the information required in the notice then determining whether sharing that information on the notice is actually prohibited by the NDA itself. Further, note that preliminary notices are generally only sent to parties involved in the project, itself. So, even if a preliminary notice is restrictive against information included in the notices, that information would likely be shared with parties who are already aware of the information anyway - like the GC or the owner. Even further, note that most states, including North Carolina, prohibit the use of "no lien" clauses. Meaning, construction businesses can't prevent others from being able to file a mechanics lien via contract. And, if an NDA would prevent a lien claimant from being able to send notice which is required to preserve lien rights, effectively, that might serve as a no lien clause. Since construction businesses cannot prevent their subs and vendors from filing liens based on contract provisions in North Carolina, presumably, contract provisions which prevent sending required notices would also not be upheld, if push came to shove. Finally: note that, if the information contained in the preliminary notice is truly not able to be shared pursuant to an NDA, and if the notice being sent isn't a notice that's required in order to preserve lien rights, then a party sending a preliminary notice might consider being careful about what information is included in their notice. For more information on North Carolina notices, here's a great resource: North Carolina Mechanics Lien Guide and FAQs.

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