I disagree with your point about the privilege, though. It’s not really relevant to confidentiality, just evidence (and the spouse could waive anyway). In reality, though, spouses just don’t talk because they just don’t care… or at least mine doesn’t anyway.

Also, we draft our agreements so that even information that becomes known to [some segment of the population] as a result of criminal activity/breach/security breach must still be treated confidentially and subject to whatever use restrictions apply. No point opening the front doors because a window got cracked.

First, your first example exception contains a very common mistake. The “public domain” is a copyright concept inappropriately imported into confidentiality agreement. “Public domain” in copyright means a work of authorship to which the owner has given up his ownership rights. No one would want this critical exception limited to public domain documents. Instead, the exception shoudl be for information that is available to the public, or is publicly known, or something along those lines.

Second, I agree with your main point. There is a parallel private construction that I sometimes see. The exception is for something like “information that the disclosing party discloses to any third party who has no legal obligation to maintain its confidentiality.” The problem with that is that you might give information to someone that you know is never going to disclose it, and even someone where you can prevent the disclosure. For example, many employees talk to their spouses about what happens at work. There is zero risk of further disclosure, most of the time. In fact, in many states, communications between spouses are privileged. Similarly, you might give information to someone else you trust and who never, in fact, discloses it further. That should not blow up your trade secret.

Chris Lemens