Does the agreement reach what was taken
Non-disclosure agreements protect only what they define as confidential, and many definitions exclude information that was already public or that the recipient developed independently. The first job is to compare what was disclosed, and how it was marked or described at the time, with what the other side appears to be using. The agreement's duration matters too, because some confidentiality obligations end after a set period while others continue for trade secrets. Separate from the contract, trade secret law can provide its own claims, through the federal Defend Trade Secrets Act and through state law, which in New York has historically rested on court decisions rather than a uniform statute.
Preserving proof of the breach
Build the record before sending any accusation. Gather the signed agreement and any amendments, the materials you shared and the logs showing when and how they were sent, and the evidence suggesting misuse, such as marketing materials, product listings, or reports from customers. If data-room access logs or file-sharing records exist, ask the provider to preserve them. Do not access the other side's systems or accounts to look for proof, and be careful about asking the other company's current employees for information. A preservation demand to the other side is often sent early, but how and when to send it is a judgment to make with counsel.
Choosing a remedy
Money damages for a breach of NDA can be hard to measure, which is why many agreements say an injunction is available and why courts are often asked to order the other side to stop using the information. Courts still require a real showing before granting one, and delay can weaken a request for urgent relief. Some agreements require notice, negotiation, or arbitration before a lawsuit, and some shift legal fees to the losing side. In a first meeting we look at the strength of the evidence, the business harm, and whether a cease-and-desist letter, a negotiated resolution, or a court filing suits the situation, keeping in mind that an overreaching accusation can invite a counterclaim.
