Drafting Effective Non-Disclosure Agreements

Every successful organization, whether high- or low-tech, develops information its competitors do not know, giving it an advantage in the marketplace. Databases, secret formulas, product ideas, customer analyses, software, manufacturing processes, and future business strategies, whether short- or long-term, can be the key to an organization’s future success. But to make its vision a commercial reality, every business has to share some of its confidential information with others—employees, vendors, customers, business partners, potential business partners, sometimes regulators, investors, and others. How can a business keep its information safe but share it with others to help obtain maximum value?

Drafting clear and effective non-disclosure agreements (NDA’s) are valuable ways to clarify expectations, manage information, and prevent later information loss. A poorly drafted agreement can lead to confusion, leave information unprotected, and even run afoul of new statutes, case law, and enforcement actions by administrative agencies. The upshot can be information loss, injunctions, and significant fines against the party that was trying to protect information.

Many organizations devote little attention to NDA’s when sharing or receiving information, treating them as simple “boilerplate” without thinking them through or sometimes even reading them. But they can be the first and often best tool for sharing information safely. In this program, we will discuss ways to develop and use effective and concise non-disclosure agreements to select information for sharing, identify who will receive it, manage the information flow, and recapture the information once the purpose for sharing it ends. We will consider common drafting pitfalls that can usually be avoided. And we will discuss what information can’t or shouldn’t be protected through NDA’s.

NDA’s are operational guides for managing information.  Make sure that the rules of the road they lay out take your organization where you need it to go.

Discussions will include :

• When do you need a non-disclosure agreement?
• Should you develop a standard form of NDA? What might one look like?
• What if your counterparty insists on using its own form?  How can you tell if it suits your needs and how can you suggest simple revisions?
• What are common drafting pitfalls, and how can you avoid them?
• Are time-limited non-disclosure agreements required by law?  Are they always a bad, or good, idea?
• How to develop special provisions in tailored NDA’s
• What information can’t be legally protected under an NDA?

This program is suitable for lawyers and managers in any business that shares information with others—which is every business.

Learning Objectives:

• Understand what confidential information your organization is sharing, with whom, and what confidential information your organization is receiving
• Consider who should gain access to that information—and who shouldn’t?  Mapping out access controls
• Investigate how information should be managed and used by the receiving party
• Learn to draft clear agreements spelling out expectations, and avoid common weaknesses in NDA’s
• Explore what information cannot be the subject of NDA’s, in the workplace, in business arrangements, and in settlement agreements