Certification - NDA Provision

NDA Anatomy™ JC’s guide to non-standard confidentiality agreements. For the OneNDA, see the OneNDA Anatomy A Jolly Contrarian owner’s manual™ Go premium Overview — Summary — See also — Wikitext NDA Showdown OneNDA Homemade NDA What is Confidential Information? Confidential information Exclusions from confidential information Who can I share it with? Affiliates Permitted receivers Disclosure to regulators What are my obligations? Confidentiality obligation Procure compliance Return of information How long do my obligations last? Term Other important information Boilerplate Remedies Don’t go there girlfriend topics Non-solicitation Exclusivity Indemnity Sample text If so requested by the Discloser at any time by notice in writing to the Recipient, the Recipient shall: destroy or return to the Discloser all copies of Discloser’s Confidential Information; erase all Discloser's Confidential Information from its computer and communications systems and devices; As far as is practicable, erase all the Discloser's Confidential Information in electronic form; and certify in writing to the Discloser that it has complied with the requirements of this Clause. Resources and Navigation Index: Click ᐅ to expand: NDA

Summary

What a “certification” clause does — well, search me. If you certify falsely that you have destroyed the information when you haven’t, then what? Is that any more egregious breach of the contract than not having destroyed it as directed in the first place? Is the measure of damage different?

No.

Are you any more able to prove any breach or loss?

No.

But there is a fun organisational time-bomb buried in this provision. Your negotiator has a free option now to create paranoid mayhem among senior people, who should know better, at some unstated point in the future, when she is well clear of the blast zone. This should gladden her heart. The requirement for some warm body in your organisation, at some unstated future date, to certify that secret squirrel information, which as far as anyone knows was sent by email and propagated through inboxes, sent items, email canoes and cloud servers in 74 different jurisdictions and could be anywhere, has been effectively destroyed or put beyond practical use will send normally sober people scuttling for exits, leaping into laundry baskets, planking, and painting the soles of their feet yellow and hiding upside down in custard.

“I can’t certify that!” the general counsel will wail. “How am I supposed to know whrther it’s been fully destroyed? What does “beyond practical use” even mean? The sky will fall in on my head if I certify this and it hasn’t! Help help we’re all going to die!”

For a cynic, this is an edifying sight. It tends to confirm one’s careful, lengthily cultivated prejudices.