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Wisconsin Non-Disclosure Agreement Requirements

Wisconsin Statute Section 103.465 traces to 1957, when the legislature enacted it specifically to overrule earlier Wisconsin Supreme Court decisions that had allowed courts to blue-pencil, or judicially narrow, an overbroad restrictive covenant down to something enforceable.

Introduction

Wisconsin Statute Section 103.465 traces to 1957, when the legislature enacted it specifically to overrule earlier Wisconsin Supreme Court decisions that had allowed courts to blue-pencil, or judicially narrow, an overbroad restrictive covenant down to something enforceable. Under that statute, if any part of a covenant not to compete, not to solicit, or to keep information confidential is found unreasonable, the entire covenant is void, not just the unreasonable part. A Non-Disclosure Agreement in Wisconsin is otherwise an ordinary confidentiality contract, mutual or one-way, in which one or both parties agree to protect specified information from disclosure. Because Wisconsin courts have applied Section 103.465 to confidentiality and non-disclosure provisions that function as restraints on someone's ability to work, an NDA whose confidentiality definition reaches too far can lose its protection entirely rather than being trimmed back by a court. Trade secrets shared under a Wisconsin NDA are separately protected by the Wisconsin Uniform Trade Secrets Act (Wisconsin Statute Section 134.90), and a misappropriation claim generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered, under Wisconsin Statute Section 893.51(2). Wisconsin has no statute carving out an employee's own-time inventions from an invention-assignment clause, unlike states such as California, Illinois, or Washington, so any invention-assignment language in a Wisconsin NDA or employment agreement is governed by ordinary contract law rather than a specific statutory limit. The practical drafting effect is significant: because there is no judicial fallback to save part of an overbroad clause, precise, narrowly tailored confidentiality language matters more in Wisconsin than in states that allow reformation.

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Key Things to Know

  1. 1

    Trade secret protection in Wisconsin runs through the Wisconsin Uniform Trade Secrets Act (Wisconsin Statute Section 134.90), separate from whatever the NDA itself says.

  2. 2

    That statute applies an all-or-nothing rule to restrictive covenants, including overbroad confidentiality provisions: if any part of the covenant is found unreasonable, the entire covenant is void and unenforceable, with no judicial blue-penciling to save the reasonable parts.

  3. 3

    That all-or-nothing rule is why confidentiality language in a Wisconsin NDA needs to be drafted narrowly. A definition of confidential information broad enough to functionally restrict where or how someone can work risks voiding the whole covenant, not just the overbroad clause.

  4. 4

    Wisconsin Statute Section 103.465 dates to 1957, when the legislature enacted it specifically to overrule earlier Wisconsin Supreme Court decisions that had allowed courts to blue-pencil, or judicially narrow, an overbroad restrictive covenant down to something enforceable.

  5. 5

    A trade secret misappropriation claim in Wisconsin generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered, under Wisconsin Statute Section 893.51(2).

  6. 6

    Wisconsin has no statute carving out inventions an employee develops on their own time from an invention-assignment clause in an NDA or employment agreement, unlike states such as California, Illinois, or Washington; any own-time invention dispute is governed by ordinary contract principles.

  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 Wisconsin; which one fits depends on whether the exchange runs both directions, like a partnership discussion, or one direction, like pitching an investor.

  8. 8

    A Wisconsin 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 Wisconsin, 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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WISCONSIN NON-DISCLOSURE AGREEMENT

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

  1. Purpose. The Parties expect to exchange sensitive information in connection with [describe business purpose, e.g. evaluating a potential business relationship], and each wants the other to keep its disclosures confidential.

  2. Definition of Confidential Information. "Confidential Information" means technical, financial, or business information a disclosing Party shares that is marked confidential or that the circumstances would lead a reasonable person to treat as confidential, including any trade secret as Wisconsin defines it at Wis. Stat. Section 134.90(1)(c): information deriving independent economic value from not being generally known or readily ascertainable, kept secret through reasonable efforts. The definition excludes information the receiving Party develops on its own initiative, information it can show it already possessed before disclosure, and information a third party shares without owing anyone a duty of secrecy. It likewise excludes anything that becomes public other than through the receiving Party's own wrongdoing.

  3. Obligations. The receiving Party may use Confidential Information only for the Section 1 purpose, must protect it with reasonable care, and may not share it beyond employees, contractors, or advisors who genuinely need it and are themselves bound to confidentiality at least as strict as this Agreement's.

  4. Scope Limitation (Wisconsin-Specific). Wisconsin applies an all-or-nothing rule to restrictive covenants under Wis. Stat. Section 103.465: if a court finds any single part of a covenant, including confidentiality language broad enough to function as a restraint on someone's livelihood, unreasonable, the entire covenant fails, not just the offending clause, because Wisconsin courts cannot blue-pencil an overbroad provision down to something narrower (the legislature removed that option in 1957 to overturn earlier case law allowing it). Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157 (1959), the Wisconsin Supreme Court's leading reasonableness case, asks whether a restriction goes no further than the disclosing Party's legitimate business interest requires in subject matter, geography, and duration. Given that exposure, this Agreement's confidentiality obligations stay confined to genuine trade secrets and proprietary information under Section 2, with no restraint on the receiving Party's general skills or ability to work in its field.

  5. Federal Whistleblower Notice. 18 U.S.C. Section 1833(b) immunizes a person from liability, under any federal or state trade secret law, for disclosing a trade secret in confidence to a government official or attorney solely to report a suspected legal violation, or in a sealed court filing. This notice appears because federal law ties full Defend Trade Secrets Act remedies to giving it.

  6. Term. Confidentiality obligations run for [X years] from signing, except that anything meeting Wisconsin's trade secret definition stays protected for as long as it remains one; a Wisconsin misappropriation claim itself generally must be brought within three years of discovery, or of when discovery reasonably should have occurred, under Wis. Stat. Section 893.51(2).

  7. Return or Destruction. Within [X days] of a written request, or once the Section 1 purpose is complete, the receiving Party must return or destroy every copy of the Confidential Information and confirm it has done so if asked.

  8. Remedies. Because a breach here could cause harm money alone will not undo, the disclosing Party may seek an injunction under Wis. Stat. Section 813.01 against an ongoing or threatened breach, plus damages, and, for an actual trade secret, the actual-loss, unjust-enrichment, and willful-conduct exemplary damages under Wis. Stat. Section 134.90(4). An ordinary contract claim not resting on trade secret status instead falls under Wisconsin's six-year contract limitations period, Wis. Stat. Section 893.43, longer than the three-year deadline in Section 6.

  9. Governing Law. Wisconsin law governs this Agreement by the Parties' express choice. Wis. Stat. Section 801.05 gives Wisconsin courts personal jurisdiction over a party transacting business in, or properly served within, the state, but that statute answers which court may hear a dispute, not which state's law applies.

  10. Miscellaneous. An electronic signature carries the same legal effect as a handwritten one under Wis. Stat. Section 137.15. Should a court hold any provision unenforceable for a reason unrelated to the all-or-nothing rule in Section 4, every other provision remains in force. Each Party's promises under this Agreement serve as consideration for the other's.

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

Wisconsin Requirements for Non-Disclosure Agreement

Definition of Confidential Information (Wisconsin Statute Section 134.90)

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

Trade Secret Protection (Wisconsin Statute Section 134.90(1)(c))

Addresses the specific requirements for a trade secret to keep that status under Wisconsin law, including that the information be the subject of efforts reasonable under the circumstances to maintain its secrecy.

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

Includes the required notice that a person is immune from criminal or civil liability for disclosing a trade secret in confidence to a government official or attorney to report a suspected violation of law, or in a sealed court filing, as required to preserve the disclosing party's remedies under the Defend Trade Secrets Act.

Duration of Confidentiality Obligations (Wisconsin Statute Section 103.465)

Wisconsin's restrictive-covenant limits are statutory: Wisconsin Statute Section 103.465 requires that a covenant's duration, along with its other restrictions, be reasonably necessary to protect the disclosing party, and if any part of the covenant, including its duration, is found unreasonable, the entire covenant is void with no judicial narrowing available. Duration limits in a Wisconsin NDA should be set conservatively for that reason.

Exclusions from Confidential Information (Wisconsin Statute Section 134.90)

Identifies information not considered confidential under Wisconsin law, including information that is readily ascertainable by proper means, publicly available information, independently developed information, and information rightfully obtained from third parties.

Return or Destruction of Confidential Information (Wisconsin common law on contractual obligations)

Requirements for the return or certified destruction of confidential information upon termination of the agreement or upon request. No Wisconsin statute specifically governs this obligation; it is an ordinary contract term enforceable under general Wisconsin contract law.

Injunctive Relief (Wisconsin Statute Section 813.01)

Section 813.01 abolishes the common-law writ of injunction and confirms an injunction may serve as a final judgment or as a provisional remedy under Wisconsin procedure, consistent with seeking an injunction to stop an ongoing or threatened breach of a confidentiality agreement.

Governing Law and Jurisdiction (Wisconsin Statute Section 801.05)

Section 801.05 is Wisconsin's personal-jurisdiction statute, establishing the grounds on which Wisconsin courts may exercise authority over a party, such as transacting business in the state. It does not select which state's substantive law governs a contract dispute; that is a separate choice-of-law question the parties resolve by express agreement.

Electronic Signatures Compliance (Wisconsin Statute Section 137.15)

Section 137.15 provides that a record or signature may not be denied legal effect solely because it is in electronic form, and that an electronic signature satisfies any legal requirement for a signature, consistent with Wisconsin's enactment of the Uniform Electronic Transactions Act.

Federal Economic Espionage Act Compliance (18 U.S.C. Sections 1831 through 1839)

Acknowledges federal protections against economic espionage and theft of trade secrets, including criminal penalties, that may apply to confidential information shared under the agreement.

Non-Circumvention Provisions (Wisconsin Statute Section 103.465 and Wisconsin common law on unfair competition)

Prevents the recipient from circumventing the discloser to deal directly with the discloser's clients, partners, or contacts learned through confidential information. Sharpened to flag that a non-circumvention clause functions like a restraint on business dealings, so under Wisconsin's all-or-nothing rule in Wisconsin Statute Section 103.465, an overbroad non-circumvention clause risks voiding the entire covenant rather than only the clause itself; drafting it narrowly matters more in Wisconsin than in states permitting judicial reformation.

Severability (Wisconsin common law on contract interpretation)

Ensures that if any provision is found unenforceable under Wisconsin law, the remainder of the agreement remains in effect. No specific Wisconsin statute governs general contract severability; this reflects ordinary Wisconsin contract-interpretation principles, separate from the non-severable, all-or-nothing treatment Wisconsin Statute Section 103.465 applies specifically to restrictive covenants.

Intellectual Property Rights Preservation (17 U.S.C. Section 201(b) and Wisconsin Statute Section 134.90)

Clarifies that the agreement does not transfer ownership of any intellectual property rights. Sharpened to cite the specific operative subsection: 17 U.S.C. Section 201(b) sets the default rule that, for a work made for hire, the employer is considered the author and owner of the copyright absent a written agreement otherwise, which is the actual reason an NDA needs an explicit clause addressing whether it transfers any ownership interest; the general Wisconsin Statute Section 134.90 reference is retained for trade secret ownership context but is not itself a copyright-ownership statute.

Restrictive Covenant Reasonableness (Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157 (1959), applying Wisconsin Statute Section 103.465)

Lakeside Oil Co. v. Slutsky is a 1959 Wisconsin Supreme Court decision, decided two years after Section 103.465's enactment, setting out reasonableness factors (legitimate business interest, and scope in subject matter, time, and territory) for restrictive covenants. This case interprets Section 103.465 rather than standing alone as a separate common-law doctrine, so its reasonableness factors operate inside the statute's all-or-nothing framework.

Securities Laws Compliance (15 U.S.C. Section 78j(b) and 17 C.F.R. Section 240.10b-5)

Acknowledges that certain confidential information, such as information exchanged in connection with a financing or acquisition, may constitute material non-public information under federal securities laws, with appropriate restrictions on trading, if the NDA is used in that context.

Data Privacy Compliance (Wisconsin Statute Section 134.98)

Section 134.98 is Wisconsin's notice-of-unauthorized-acquisition-of-personal-information statute, requiring notice to affected individuals, and in larger breaches to consumer reporting agencies, within a set period after an entity learns of the acquisition. Addresses compliance with this Wisconsin data breach notification law when confidential information includes personal data of Wisconsin residents.

Statute of Limitations (Wisconsin Statute Section 893.43)

Section 893.43 sets a six-year limitations period for ordinary contract actions in Wisconsin, applying to a breach-of-contract claim under the NDA itself. This is distinct from the separate three-year discovery-rule deadline that Wisconsin Statute Section 893.51(2) sets specifically for trade secret misappropriation claims under Section 134.90; the two periods should not be conflated.

Integration and Modification (Wisconsin common law on contract interpretation)

States that the agreement constitutes the entire understanding between the parties regarding confidential information and can only be modified in writing, consistent with Wisconsin contract law.

Frequently Asked Questions

A Non-Disclosure Agreement in Wisconsin 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 Wisconsin Uniform Trade Secrets Act (Wisconsin Statute Section 134.90) regardless of what the NDA itself says.

Generally, only if it is narrowly and reasonably drafted. Wisconsin Statute Section 103.465 makes a restrictive covenant, including a non-compete or an overly broad confidentiality clause, enforceable only if the restriction is reasonably necessary to protect the employer. If any part of the covenant is found unreasonable, Wisconsin courts void the entire covenant rather than narrowing it, so a Wisconsin NDA with restrictive language needs to be conservative in scope.

Wisconsin applies an all-or-nothing rule under Wisconsin Statute Section 103.465: if a court finds any part of a restrictive covenant, including an overbroad confidentiality or non-disclosure clause, to be an unreasonable restraint, the entire covenant becomes void and unenforceable, even the parts that would have been reasonable on their own. This statute was enacted specifically to bar Wisconsin courts from blue-penciling, meaning judicially rewriting an overbroad clause down to a narrower, enforceable version, which is a different approach than many other states take.

A trade secret misappropriation claim connected to a Wisconsin NDA generally must be brought within three years after the misappropriation is discovered, or after it reasonably should have been discovered through reasonable diligence, under Wisconsin Statute Section 893.51(2), which sets the limitations period for claims under the Wisconsin Uniform Trade Secrets Act (Wisconsin Statute Section 134.90). A separate breach-of-contract claim over the NDA itself follows Wisconsin's ordinary written-contract limitations period.

No, not automatically, but Wisconsin does not have a specific statute addressing it either way. Unlike states such as California, Illinois, or Washington, Wisconsin has no law carving out inventions an employee develops entirely on their own time from an invention-assignment clause in an NDA or employment agreement. Whether such a clause reaches an employee's own-time invention depends on the specific contract language and ordinary Wisconsin contract law rather than a statutory limit.

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 Wisconsin; the choice is about which structure matches the actual relationship.

No. A Wisconsin 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 Wisconsin Uniform Trade Secrets Act provides an additional, independent basis for relief, including damages for actual loss, unjust enrichment, and, for willful and malicious misappropriation, exemplary damages up to twice the compensatory award, separate from whatever remedies the NDA itself specifies.