2.1 Confidentiality and Non-Disclosure Agreements
Key Takeaways
- AAERT ethics require protecting information heard both on and off the record and keeping assignments confidential.
- An NDA supplements applicable law, court rules, orders, and professional duties; it does not authorize conduct forbidden by higher authority.
- Need-to-know access, secure communications, and careful conversation practices reduce disclosure risk.
- A subpoena, public-record request, or informal demand must be routed through the authorized response process rather than answered personally.
The scope of confidentiality
AAERT's Code requires members to preserve the confidentiality and security of oral and written information, not discuss remarks heard on or off the record, and keep assignments strictly confidential. A passage does not become free for casual discussion merely because it was spoken in an open courtroom. Public access is administered through lawful channels; it is not a personal license for the reporter to publish, summarize, or gossip.
Confidential material may include:
- sealed proceedings, bench conferences, in-camera discussions, and grand-jury material;
- personal identifiers, health information, trade secrets, juvenile information, and protected addresses;
- audio, video, annotations, appearance sheets, draft transcripts, exhibits, and access links;
- passwords, encryption keys, system diagrams, and security procedures;
- assignment schedules that reveal protected hearing locations or witness participation; and
- remarks made during recesses or before a formal on-record announcement.
A reporter needs situational discipline. Headphones do not make a shared workspace private. Case names should not be discussed in elevators, restaurants, online groups, or with family. Screens should be positioned to prevent casual viewing. Notifications that display participant names should be disabled during unrelated screen sharing. Paper notes and removable media should not be left unattended.
Non-disclosure agreements
A non-disclosure agreement (NDA) is a contract defining protected information, permitted uses, authorized recipients, duration, return or destruction duties, and remedies. Read it before accepting the assignment. Clarify ambiguous provisions through the contracting or legal channel rather than guessing. Determine whether subcontractors, transcribers, or platform providers may receive the information and what downstream agreements are required.
An NDA sits within a larger hierarchy. It cannot privately cancel a statute, court order, reporting obligation, or lawful demand. Conversely, a person who is not named in the NDA does not automatically gain access merely by claiming to be counsel. The reporter verifies authority through the approved process. If an NDA conflicts with an instruction from a presiding official, preserve the material and seek prompt clarification; do not destroy files or disclose them while the conflict is unresolved.
Minimum disclosure and authorized access
Use a need-to-know model. Each recipient should receive only the files and permissions required for an authorized task. Confirm identity and destination before transfer, especially when names or email addresses are similar. Avoid autocomplete mistakes by selecting contacts from an approved matter workspace. Use court or agency portals and required encryption controls rather than personal accounts. Time-limited links, access logs, and separate delivery of passwords may be appropriate when the governing procedure permits them.
A useful pre-send check is matter, material, recipient, authority, method:
- Is this the correct matter?
- Is this the authorized version of the material?
- Is the recipient's identity verified?
- What rule, order, or request authorizes release?
- Is the delivery method approved for the sensitivity?
Requests and legal process
Reporters may receive subpoenas, public-record requests, media inquiries, attorney requests, or calls from participants. Do not decide validity alone unless that is part of an assigned role. Preserve potentially responsive material, avoid alteration, note applicable deadlines, and route the demand to the custodian, clerk, agency counsel, or supervisor. Do not confirm the existence of a sealed matter to an unauthorized caller.
If information is sent to the wrong recipient, quick containment matters. Follow the incident plan: notify the designated authority, attempt approved revocation or recall, preserve audit logs, record what was exposed, and avoid promises about legal consequences. Concealing the mistake prevents a proper response and aggravates the ethical failure.
Exam scenario distinction
The strongest answer usually protects confidentiality and respects lawful process. “Never disclose anything” is too absolute; authorized access and lawful orders exist. “It happened in court, so send it” is equally wrong. The reporter confirms authorization, uses the approved channel, releases only what is permitted, and documents the transfer.
Exam application
Suppose an attorney who attended yesterday calls from an unfamiliar number and asks the reporter to read a confidential answer aloud. Familiarity with the name is not sufficient identity verification, and oral disclosure can breach confidentiality just as surely as sending a file. The reporter should use the matter's verified contact and request procedure. If a lawful subpoena later seeks the same information, preserve it and route the subpoena rather than refusing forever or complying personally. The controlling distinction is authorized process, not the requester's urgency.
A reporter receives an informal email asking for audio from a sealed hearing. What is the best response?