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New Mexico Non-Disclosure Agreement Requirements

NMSA 1978 Section 24A-4-2 (recompiled in 2024 from the original Section 24-1I-2) makes a non-compete provision restricting a covered practitioner's right to provide clinical health care services in New Mexico unenforceable once the underlying agreement, its renewal or extension, or the practitioner's employment ends.

Introduction

NMSA 1978 Section 24A-4-2 (recompiled in 2024 from the original Section 24-1I-2) makes a non-compete provision restricting a covered practitioner's right to provide clinical health care services in New Mexico unenforceable once the underlying agreement, its renewal or extension, or the practitioner's employment ends. A 2023 amendment expanded the covered list to physicians, osteopathic physicians, dentists, podiatrists, certified registered nurse anesthetists, certified nurse practitioners, certified nurse-midwives, psychologists, physician assistants, and pharmacists. A New Mexico Non-Disclosure Agreement is otherwise an ordinary contract in which one or both parties agree to keep specified information confidential, mutual or one-way, and the health care rule matters mainly when an NDA is paired with or doubles as an employment agreement in that sector: a confidentiality clause is not a non-compete by itself, but one written broadly enough to functionally stop a covered practitioner from treating patients afterward risks running into this statute. Outside health care, New Mexico has no general non-compete statute and applies the common-law reasonableness test to any restrictive covenant embedded in an NDA. Trade secrets shared under a New Mexico NDA are separately protected under the New Mexico Uniform Trade Secrets Act (NMSA 1978 Sections 57-3A-1 through 57-3A-7), and a misappropriation claim generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered.

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Key Things to Know

  1. 1

    Trade secret protection runs through the New Mexico Uniform Trade Secrets Act (NMSA 1978 Sections 57-3A-1 through 57-3A-7), separate from whatever the NDA itself says.

  2. 2

    New Mexico's health care practitioner non-compete ban (NMSA 1978 Section 24A-4-2, recompiled in 2024 from Section 24-1I-2) voids a non-compete provision restricting a covered practitioner's right to provide clinical health care services once the agreement, its renewal, or the practitioner's employment ends. The covered list, expanded in 2023, now reaches ten practitioner types: physicians, osteopathic physicians, dentists, podiatrists, certified registered nurse anesthetists, certified nurse practitioners, certified nurse-midwives, psychologists, physician assistants, and pharmacists.

  3. 3

    That statute targets non-compete provisions specifically, not confidentiality obligations. An NDA that protects genuine trade secrets and sensitive information, without reaching into a covered practitioner's ability to treat patients afterward, is not the kind of provision Section 24A-4-2 targets.

  4. 4

    Outside health care, New Mexico has no general non-compete statute. Any restrictive covenant embedded in an NDA is tested under the common-law reasonableness standard applied by New Mexico courts, including in Bowen v. Carlsbad Insurance & Real Estate, Inc., which upheld a lengthy covenant tied to the sale of a business as reasonable given its structure and consideration.

  5. 5

    A trade secret misappropriation claim in New Mexico generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered (NMSA 1978 Section 57-3A-7).

  6. 6

    New Mexico has no statute requiring an NDA or employment agreement to carve out inventions an employee develops on their own time and own equipment, the way California, Kansas, and several other states do. If a New Mexico NDA or employment agreement assigns employee inventions to the employer, that assignment is governed by the contract's own terms and ordinary common-law principles, not a state carve-out statute.

  7. 7

    Mutual NDAs, where both sides share confidential information, and one-way NDAs, where only one side does, are both ordinary enforceable contracts in New Mexico; which one fits depends on whether the exchange runs both directions, like a partnership or acquisition discussion, or one direction, like pitching an investor.

  8. 8

    A New Mexico court can order injunctive relief to stop an ongoing or threatened breach of a valid NDA, in addition to any damages the disclosure caused.

Key decisions before you file

Before you file a Non-Disclosure Agreement in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Non-Disclosure Agreement guide walks through them.

Open the Non-Disclosure Agreement guide

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NEW MEXICO NON-DISCLOSURE AGREEMENT

[Party A Name] of [City], New Mexico and [Party B Name] of [City], New Mexico (each a "Party") enter into this Non-Disclosure Agreement as follows.

  1. Purpose. The Parties intend to explore [describe business purpose, e.g. a potential business relationship], which may require one or both to disclose Confidential Information to the other.

  2. Definition of Confidential Information. "Confidential Information" covers technical, business, and financial material a disclosing Party labels confidential, plus anything a reasonable person would recognize as confidential given how it was shared, including any trade secret meeting the definition at NMSA 1978 Section 57-3A-2 of the New Mexico Uniform Trade Secrets Act: information not generally known, valuable because of that, and kept secret through reasonable effort. The term does not reach information a third party passes along without violating a duty of secrecy, or information the receiving Party held before this Agreement, developed on its own, or saw become public without fault on its part.

  3. Obligations. The receiving Party will use Confidential Information only for the purpose in Section 1, protect it with at least the care it gives its own sensitive information, and not share it outside its organization without prior written approval, except with employees, contractors, or advisors who need it for that purpose and are themselves bound to confidentiality at least as protective as this Agreement's.

  4. Scope Limitation (New Mexico-Specific). NMSA 1978 Section 24A-4-2, recompiled in 2024 from the former Section 24-1I-2 and expanded by a 2023 amendment to ten covered practitioner categories, voids any non-compete provision restricting a covered health care practitioner's right to provide clinical health care services in New Mexico once the agreement, its renewal, or the practitioner's employment ends, and voids sidestepping that rule through another state's law or forum. If either Party here is a physician, osteopathic physician, dentist, podiatrist, certified registered nurse anesthetist, certified nurse practitioner, certified nurse-midwife, psychologist, physician assistant, or pharmacist, nothing in this Agreement restricts that Party's ability to practice clinically in New Mexico once it ends. Outside health care, New Mexico has no general non-compete statute, so a restrictive covenant this Agreement might otherwise create is instead measured under the common-law reasonableness test applied in Bowen v. Carlsbad Insurance & Real Estate, Inc., 1986-NMSC-060, which weighed a covenant's duration and geographic reach against the interest protected.

  5. Federal Whistleblower Notice. Neither New Mexico's trade secret statute nor federal law punishes someone for reporting wrongdoing: 18 U.S.C. Section 1833(b) keeps a person free of criminal and civil trade secret liability for handing a trade secret, in confidence, to a government official or a lawyer to report suspected wrongdoing, or for using it in a sealed court filing. Congress tied an employer's access to the Defend Trade Secrets Act's exemplary-damages and fee-shifting remedies to giving this exact notice, which is why it is written into this Agreement rather than assumed.

  6. Term. Confidentiality obligations here run for [X years] from signing, but information still meeting the trade secret definition in Section 2 stays protected for as long as it retains that status, regardless of this Agreement's stated term.

  7. Return or Destruction. Once the disclosing Party requests it, or the Section 1 purpose concludes, the receiving Party will return all Confidential Information in its possession or, at the disclosing Party's election, certify its destruction.

  8. Remedies. A breaching disclosure may be stopped by a New Mexico court through an injunction under Rule 1-066 NMRA, since money alone often cannot undo the harm; if the information also meets New Mexico's trade secret definition, the New Mexico Uniform Trade Secrets Act supplies further remedies, including damages for actual loss and for unjust enrichment.

  9. Governing Law. New Mexico has no statute fixing a default choice of law for contracts; New Mexico courts instead apply the common-law doctrine of lex loci contractus, looking to where the contract was made, so the Parties confirm New Mexico law governs this Agreement as the state where it is signed.

  10. Miscellaneous. An electronic signature is valid here under the New Mexico Uniform Electronic Transactions Act (NMSA 1978 Sections 14-16-1 through 14-16-21) and the federal ESIGN Act (15 U.S.C. Section 7001). If a court finds any provision unenforceable, every remaining provision stays in force. Each Party's own promises here, including its promise to protect the other's Confidential Information, serve as valid consideration for the other's promises in return.

[Party A Signature] ____________________ Date: __________ [Party B Signature] ____________________ Date: __________

New Mexico Requirements for Non-Disclosure Agreement

Definition of Confidential Information (New Mexico Uniform Trade Secrets Act, NMSA 1978, Sections 57-3A-1 to 57-3A-7)

Clearly defines what constitutes confidential information under New Mexico law, including trade secrets as defined in the New Mexico Uniform Trade Secrets Act.

Trade Secret Protection (New Mexico Uniform Trade Secrets Act, NMSA 1978, Sections 57-3A-1 to 57-3A-7)

Specific provisions addressing the protection of trade secrets in accordance with New Mexico's adoption of the Uniform Trade Secrets Act, including remedies for misappropriation.

Federal Defend Trade Secrets Act Compliance (18 U.S.C. Section 1836 and Section 1833(b))

Includes provisions complying with the federal DTSA's general civil-remedies framework under Section 1836, and separately cites Section 1833(b), the source of the whistleblower immunity notice for disclosing a trade secret to a government official or attorney to report a suspected violation, or in a sealed court filing.

Economic Espionage Act Considerations (Economic Espionage Act of 1996, 18 U.S.C. Sections 1831-1839)

Acknowledges federal protections against economic espionage and theft of trade secrets that may apply to the confidential information covered by the NDA.

Duration of Confidentiality Obligations (New Mexico common-law reasonableness test; Bowen v. Carlsbad Insurance & Real Estate, Inc., 1986-NMSC-060)

Specifies the time period for which confidentiality obligations remain in effect. New Mexico has no statute setting a reasonable duration for a restrictive covenant; the controlling authority is Bowen v. Carlsbad Insurance & Real Estate, Inc., 104 N.M. 514, 724 P.2d 223 (1986), which upheld a lengthy covenant ancillary to a business sale as reasonable given its consideration structure, weighing duration and geographic reach against the interest protected.

Remedies for Breach (New Mexico Rules of Civil Procedure, NMRA 1-066, Injunctions and Receivers)

Rule 1-066 NMRA governs the procedure for obtaining a preliminary injunction or temporary restraining order in New Mexico courts, the operative remedy for stopping an ongoing or threatened breach. Damages and attorney's fees for a trade secret breach come from the New Mexico Uniform Trade Secrets Act and general contract law, not from Rule 1-066 itself.

Electronic Signatures Compliance (New Mexico Uniform Electronic Transactions Act, NMSA 1978, Sections 14-16-1 to 14-16-21; federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq.)

Ensures the NDA can be executed electronically in compliance with both New Mexico and federal electronic signature laws.

Return or Destruction of Confidential Information (New Mexico common law on confidential business information)

Requires the return or certified destruction of confidential information upon termination of the agreement or business relationship.

Non-Circumvention Provisions (New Mexico common law on fair business practices)

Includes provisions preventing the recipient from circumventing the discloser to pursue business opportunities revealed through confidential information.

Data Privacy Compliance (New Mexico Data Breach Notification Act, NMSA 1978, Sections 57-12C-1 to 57-12C-12)

Addresses compliance with New Mexico's data breach notification law when confidential information includes personal identifying information of New Mexico residents.

Exceptions to Confidentiality (New Mexico common law on confidentiality exceptions)

Clearly outlines exceptions to confidentiality obligations, such as information that becomes public through no fault of the recipient.

Securities Law Compliance (Securities Exchange Act of 1934, 15 U.S.C. Section 78a et seq.; SEC Rule 10b-5)

Ensures compliance with federal securities laws when confidential information may include material non-public information about publicly traded companies.

Antitrust Compliance (New Mexico Antitrust Act, NMSA 1978, Sections 57-1-1 to 57-1-19; Sherman Antitrust Act, 15 U.S.C. Sections 1-7)

Ensures the NDA does not inadvertently create anticompetitive effects that could violate federal or New Mexico antitrust laws, most relevant where the NDA involves competitors or a joint venture.

Disclosure Required by Law (New Mexico Rules of Civil Procedure, NMRA 1-045, Subpoenas)

Rule 1-045 NMRA governs how a subpoena for documents or testimony is served and enforced in New Mexico courts, the mechanism through which disclosure of confidential information may be legally compelled. Any requirement to notify the disclosing Party before complying is a contractual obligation this Agreement adopts, not a requirement imposed by Rule 1-045 itself.

Frequently Asked Questions

A Non-Disclosure Agreement in New Mexico is an ordinary contract in which one or both parties agree to keep specified information confidential. It can be mutual, where both sides share confidential information, or one-way, where only one side does. Trade secrets shared under the agreement are also separately protected by the New Mexico Uniform Trade Secrets Act (NMSA 1978 Sections 57-3A-1 through 57-3A-7) regardless of what the NDA itself says.

No, not if it restricts a covered practitioner's ability to provide clinical health care services in New Mexico. NMSA 1978 Section 24A-4-2 makes a non-compete provision in an agreement with a physician, osteopathic physician, dentist, podiatrist, certified registered nurse anesthetist, certified nurse practitioner, certified nurse-midwife, psychologist, physician assistant, or pharmacist unenforceable once the agreement, a renewal or extension, or the practitioner's employment ends. An NDA's confidentiality clause is not itself a non-compete, but one drafted broadly enough to stop a covered practitioner from treating patients afterward risks the same result.

A 2023 amendment (House Bill 385) expanded the list of covered practitioners beyond the original 2015 group of physicians, osteopathic physicians, dentists, podiatrists, and certified registered nurse anesthetists to also include certified nurse practitioners, certified nurse-midwives, psychologists, physician assistants, and pharmacists, and made related nonsolicitation provisions unenforceable as well. Effective July 1, 2024, the statute was recompiled from NMSA 1978 Section 24-1I-2 to Section 24A-4-2 as part of New Mexico's new Health Care Code, with the same substantive protections.

Outside health care practitioner agreements, no. New Mexico has no statute of general applicability governing non-compete enforceability. Any restrictive covenant embedded in an NDA outside the health care context is evaluated under the common-law reasonableness test New Mexico courts apply, weighing the employer's legitimate business interest against the duration, geographic scope, and hardship the covenant creates, as in Bowen v. Carlsbad Insurance & Real Estate, Inc., 1986-NMSC-060.

A trade secret misappropriation claim under the New Mexico Uniform Trade Secrets Act generally must be brought within three years after the misappropriation is discovered, or after it reasonably should have been discovered with reasonable diligence (NMSA 1978 Section 57-3A-7). A separate breach-of-contract claim over the NDA itself follows New Mexico's ordinary written-contract limitations period.

New Mexico has no statute like California's Labor Code Section 2870 that automatically excludes an employee's own-time inventions from an assignment clause. Whether a New Mexico NDA or employment agreement reaches an invention an employee develops on their own time, without the employer's equipment or trade secrets, depends entirely on how the agreement itself is drafted, not a statutory carve-out.

It depends on whether confidential information will flow in both directions or only one. A mutual NDA fits a two-way exchange, such as a merger, partnership, or joint-venture discussion where both sides disclose sensitive information. A one-way NDA fits a one-directional exchange, such as pitching a business plan to an investor who is not sharing anything confidential back. Both forms are equally enforceable in New Mexico; the choice is about which structure matches the actual relationship.

No. A New Mexico NDA is an ordinary contract, not a formal instrument like a will or power of attorney, so it does not require notarization or witnesses to be valid. It only needs the standard elements of a valid contract: an offer, acceptance, and consideration, along with signatures from the parties being bound.

The non-breaching party can seek injunctive relief to stop an ongoing or threatened disclosure, along with damages caused by the breach. If the disclosed information also qualifies as a trade secret, the New Mexico Uniform Trade Secrets Act provides an additional, independent basis for relief, including damages for actual loss and unjust enrichment, separate from whatever remedies the NDA itself specifies.