North Dakota Non-Disclosure Agreement (NDA) Review
North Dakota is the rare state where a confidentiality agreement is often the only post-employment restriction that can actually be enforced. Section 9-08-06 of the Century Code voids contracts restraining a lawful profession, trade or business, and the state Supreme Court has applied that rule to non-solicitation clauses as well. That puts real weight on the NDA itself, which is why North Dakota employers sometimes try to stretch confidentiality language into something that works like a non-compete.
Trade-secret law
Uniform Trade Secrets Act
Bundled non-compete
Generally void
Confidentiality & trade secrets in North Dakota
North Dakota protects trade secrets under its version of the Uniform Trade Secrets Act, and the federal Defend Trade Secrets Act applies on top. A reasonable NDA is enforceable, but courts still look at scope, an over-broad definition of "confidential information" with no exclusions is the most common weakness.
Watch for a non-compete inside the NDA
Employee non-competes are void by statute. Only narrow sale-of-business exceptions are allowed.
A confidentiality agreement should protect information, not restrict who you can work for. If an NDA in North Dakota also tries to bar you from competitors or from soliciting contacts, treat that as a separate restrictive covenant and judge it by North Dakota's non-compete rules above.
Can a North Dakota NDA stop you contacting former clients?
Generally not through a non-solicit. N.D. Cent. Code 9-08-06 voids restraints on a lawful profession, trade or business, with narrow exceptions for the sale of goodwill and partnership dissolution. In Warner & Co. v. Solberg, 2001 ND 156, the North Dakota Supreme Court treated a customer non-solicitation provision the same as a non-compete under that statute.
What remains enforceable is a genuine promise not to use or disclose trade secrets. A customer list that qualifies as a trade secret is protected; your relationships and memory of who works in the industry are much harder to lock up.
What does North Dakota's trade secret statute require?
North Dakota's Uniform Trade Secrets Act is N.D. Cent. Code chapter 47-25.1. Information must derive independent economic value from not being generally known and must be the subject of reasonable efforts to keep it secret. An action must be brought within three years after the misappropriation is discovered or should have been (47-25.1-06), and a continuing misappropriation is a single claim.
If an NDA defines confidential information so broadly that it covers public facts or general skill, the clause may be doing the work of a void restraint, and that is the argument to raise.
One practical point: because so little else can be enforced in North Dakota, employers here sometimes add long tail periods or liquidated damages to the confidentiality clause itself. Those terms are worth questioning on their own merits.
North Dakota sources checked 2026-10-09: N.D. Cent. Code ch. 47-25.1 (Uniform Trade Secrets Act) · Osborne v. Brown & Saenger (2017): ND non-compete ban prevails over choice of law (Legal Examiner) · 18 U.S.C. 1833, DTSA whistleblower immunity (Cornell LII). Laws change; confirm the current rule before relying on it.
What ClauseAudit checks in a North Dakota NDA
- Definition of "confidential information", narrow, or everything?
- The four standard exclusions (public, already known, independently developed, third-party)
- Duration, a defined term, or a perpetual obligation?
- A "residuals" clause allowing use of what is remembered
- Any bundled non-compete or non-solicitation, judged by North Dakota law
- Return/destruction obligation and one-sided injunctive relief
North Dakota NDA FAQ
Is an NDA enforceable in North Dakota?
Yes, a reasonable confidentiality agreement is generally enforceable in North Dakota, backed by the state’s Uniform Trade Secrets Act and, at the federal level, the Defend Trade Secrets Act. What matters is scope: an NDA with an over-broad definition of "confidential information," no standard exclusions, or a perpetual term is far weaker than it looks and worth narrowing.
Can an NDA include a non-compete in North Dakota?
NDAs sometimes bundle in non-compete or non-solicitation language. In North Dakota, non-competes are generally void, Employee non-competes are void by statute. Only narrow sale-of-business exceptions are allowed. So a non-compete smuggled into an NDA usually will not stop you working, though a narrow non-solicit might.
What makes an NDA fair in North Dakota?
A sound NDA defines confidential information narrowly, includes the standard exclusions (public information, what you already knew, what you independently develop, and what a third party gives you), has a defined term rather than a perpetual one, and does not include a broad "residuals" clause or a hidden non-compete. ClauseAudit checks each of these against North Dakota law.
Can North Dakota enforce a non-compete buried in an NDA?
North Dakota is one of 4 US jurisdictions treating employee non-competes as void rather than merely limited. Employee non-competes are void by statute. Only narrow sale-of-business exceptions are allowed. Confidentiality obligations are a separate question and are not affected by any of that, which is why a restraint tucked into an NDA deserves reading on its own terms rather than as part of the secrecy clause.
Does it matter which state's law the agreement names?
It can, because North Dakota's neighbours do not all agree: Montana (generally enforceable), South Dakota (generally enforceable). Which law applies turns on the governing-law and venue clauses and on where the work is actually done, so those two clauses are worth reading before signing an NDA.
Will a North Dakota court honor a clause choosing another state's law to enforce a non-compete?
Generally not. In Osborne v. Brown & Saenger (2017 ND 288), the North Dakota Supreme Court refused to enforce a clause choosing South Dakota law and courts against a Fargo employee, and held her non-compete and non-solicit void under 9-08-06. Read the governing-law and venue clauses in your NDA carefully, because they are often how an out-of-state employer tries to avoid 9-08-06.
Is there a North Dakota statute on harassment NDAs?
The protection most North Dakota workers rely on is the federal Speak Out Act, which makes pre-dispute nondisclosure and nondisparagement clauses unenforceable in sexual assault and sexual harassment disputes. NDAs in employment agreements must also carry the federal whistleblower immunity notice if the employer wants to recover exemplary damages or fees under the Defend Trade Secrets Act.
Asked to sign an NDA in North Dakota?
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How neighbouring states treat restrictive covenants
Nationally: 4 jurisdictions treat employee non-competes as void, 13 allow them only in limited circumstances, 34 generally enforce them if reasonable.
North Dakota rules summarized as of October 2026; laws change. This is automated educational information, not legal advice. ClauseAudit verifies current North Dakota law when you run your NDA, and you should confirm anything critical with a qualified attorney.