Settlement agreements often also include in the confidentiality terms that if one of the settling parties is presented with a subpoena for the settlement agreement or terms therein, the settling party which received the subpoena must contest the subpoena (e.g., try to quash the subpoena) or at least limit its scope, AND request the court to enter a protective order before the settlement agreement or a summary of its terms are provided if the subpoena is deemed to be valid.
So, if Company XYZ is subpoenaed for the settlement agreement, the Company has an obligation to file a motion to quash the subpoena, and if the motion is nott granted, then to request the court restrict the scope of the settlement agreement that is to be provided (and usually in severely redacted form per the scope allowed by the court) AND enter a protective order that usually limits the distribution of the produced material to outside counsel eyes only and perhaps one or a few internal legal counsel of the counterparty, as legally justified to the court.
The funniest thing I've ever seen is a document that was produced which was a funded grant application from a large Federal research funding agency under a FOIA request. The grant applicant/recipient is given an opportunity to redact their grant application to remove confidential trade secret information prior to the agency disclosing it. The Federal agency has no ability or authority to second-guess the grant applicant/recipient judgement. The grant applicant/recipient has sole discretion to specify what they deem to be trade secrets and make whatever redactions they wish.
So we gott a 40-some page grant proposal that was entirely redacted except for title, party name, and other stuff already in the CRISP data file. For kicks, the legal counsel chose nott to redact certain individual words or phrases. So for example, on say page 14, everything was redacted except for "and", "therefore", and "with". Kinda like a Hillary Clinton email.
The only recourse is for the requesting party (the party that requested the grant application from the Federal agency per a FOIA request) to go to court and seek a court order compelling, for example, an in camera review of what the grant applicant/recipient is asserting to be trade secrets. As one can imagine, this is rarely feasible.
And I freely admit to using the same redaction strategy when I'm on the other side of the fence (e.g., representing the grant applicant/recipient). In the "old days" before modern computer redactions with Adobe Acrobat, Word, etc. I had one of the largest collections of ultrablack black markers and correction tape to make the redactions prior to photocopying - carefully reviewing the photocopies to make sure nothing could be seen under the blacked or correction tape overlay portions. (Well, I also had a secretary do that last step of reviewing to make sure I didn't miss something that was left visible.)
BTW, trade secret cases are, IMO, among the most interesting to litigate. I have many inneresting stories from trade secret cases - including the time I was deposed and made the opposing counsel taking my depo turn beet red and bust ~OUTT crying when I laughed at her ridiculous questions. She was in fact a head case and I guess that was something that pushed her button that day. We adjourned subject to my possible recall for the 7 hour depo period - butt I was never recalled. She wound up leaving her firm (a BIG name firm where she had just made partner) later that year and I am told she was institutionalized for a period. She now lives in Utah or Colorado doing who knows what. She sure isn't doing complex business litigation, that's for sure.
Good laffs, good times. I love trade secret cases.
