During the NDA editing and negotiating process, when a confidentiality agreement is being reviewed, attorneys must ensure that the agreement accurately identifies the information to be protected, and that it considers the situations in which disclosure of protected information would be allowable and hence not constitute a breach of the contract.
Scope of Protected Information
If you represent the disclosing party, the ultimate goal of the non-disclosure agreement is to protect your client’s confidential information. To that end, the description of the object of the contract should be sufficiently broad to cover a variety of circumstances. However, if the scope of the agreement is too broad, it could make a reviewing court less likely to uphold it if challenged.
Sometimes, a recipient party wants the scope of the NDA limited to documents marked “Confidential.” From the standpoint of the receiver, this provides clarity. However, if the disclosing entity inadvertently fails to mark an otherwise protected document “Confidential,” this provision in the agreement could result in lack of protection for the disclosing entity.
The agreement should clearly identify whether protected information includes both written and oral statements and information, or is limited to information contained in written documents. If oral statements are to be included, consider whether to also include a provision requiring the disclosing party to memorialize such statements in writing shortly after disclosure.
Permitted Disclosure
Consider also whether, and under what circumstances, a recipient party could share confidential information covered by the agreement without fear of legal recourse. The agreement should clearly specify when disclosure is permitted. Some common permitted disclosures include:
- Information that is already in the public domain
- Information the recipient obtained independently
- Information that was also disclosed to the recipient by a third party
- Information the recipient party develops independently, without using the disclosing party’s confidential information in the process
- Disclosures made prior to signing the NDA
- Information required to be disclosed in a legal matter
- Information required to be disclosed by federal or state laws
Baer Reed provides a variety of legal process outsourcing services including NDA editing and negotiating services,. To learn more about Baer Reed’s NDA services, contact us today!
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.