Can a court clerk or a lawyer unilaterally create a nondisclosure requirement? It is not generally that case that a lawyer, absent a judge, can send you a document you're not allowed to disclose (though certainly lots of C&D's try to suggest otherwise).
I'm sure the NDA stuff here is ironclad! I'm just curious what the mechanism is.
> Can a court clerk or a lawyer unilaterally create a nondisclosure requirement?
If they are acting as an officer of the court, which they’d need to be to sign off on a subpoena, I believe the answer is yes. The mechanism is called a “gag order”.
For subpoenas authorized under the Stored Communications Act, there's statutory authorization for DOJ to request time-limited NDAs, which makes me wonder if there needs to be explicit authorization for other kinds of subpoenas. This is the kind of noodling I'm doing here; I'm not trying to message-board my way to a first-principles argument that the NDA was bogus. :)
It's very common for a subpeona related to an ongoing investigation to include a gag order. For instance, if someone is investigating someone for a crime, and requests that users search history, the last thing they want is for Google et al to alert the user that this happened, as they may not be ready to arrest them yet and the target would flee.
Same with wiretapping orders, or frankly a subpeona for pretty much anything from a third party.
I'm sure the NDA stuff here is ironclad! I'm just curious what the mechanism is.