Template:Onenda 2(c) summ: Difference between revisions

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Created page with "{{confidentiality and regulatory disclosure}} {{regulator requests}} ====Court proceedings==== Is it any different for court proceedings? Now, my friends, we are deep in anally retentive territory here.<ref>This may seem a rather unsavoury metaphor, but it seems apposite.</ref> If you should find yourself even broaching the question of what one must do when compelled by ''sub poena'' or court-mandated discovery to submit another fellow’s {{confiprov|confide..."
 
Replaced content with "{{Nda disclosure to regulators summ}}"
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{{confidentiality and regulatory disclosure}}
{{Nda disclosure to regulators summ}}
{{regulator requests}}
====Court proceedings====
Is it any different for court proceedings? Now, my friends, we are deep in anally retentive territory here.<ref>This may seem a rather unsavoury [[metaphor]], but it seems apposite.</ref> If you should find yourself even broaching the question of what one must do when compelled by ''[[sub poena]]'' or court-mandated [[discovery]] to submit another fellow’s {{confiprov|confidential information}} into the hands of your combatants in connection with an unrelated civil proceeding, then the game is up, this is a [[I’m not going to die in a ditch about it|ditch you might, if you insist on it, die in]], and for the betterment of all you should really just surrender and move on, but for what it is worth, it ''is'' arguably different from compulsory disclosure to a regulator:
 
On one hand:
*A (third party) litigant may be the disclosing party’s competitor, and its intentions may not be as pure as driven snow — a disposition which one can (or has little choice but to) take as read for a regulator;
*The discovery request may thus be an abusive use of a court progress to fish out some commercial material. So one should be on one’s guard and ready to defend it, to the advantage of the disclosing party;
On the other hand:
*It is a compulsory legal process and, at the limit, you can’t stop it;
*A civil litigation between you and some other dude, even if it somehow involves the disclosing party’s {{confiprov|confidential information}}, is generally sensitive and may not be the sort of thing you want the disclosing party to know about: there is a “clash of the confidentialities” here
*As a litigant you will be generally incentivised to resist wider disclosure than is absolutely necessary and so shouldn’t need to have to promise this to the disclosing party. But it is not inconceivable that this confidential agreement ''is'' exactly the ammunition you need to shut down the litigation, so your interests may favour disclosure, while the “discloser’s” may not. You don’t want your confidentiality agreement to crimp your ability to show your best you to the court process.
When all is said and done, these are all ''extraordinarily'' remote and implausible hypotheticals. They neatly illustrate the fatuity of obsessing over the minutiae of an imponderable future, and it pains me to even talk about them. ''However'', it is in just such a fatuous neck of the woods that the [[legal eagle]] likes to build its nest so — unless you want to [[die in a ditch]] in that fatuous neck of the woods (some do; there is no accounting for taste) — you might just take a view and nod along.

Revision as of 11:47, 1 October 2024

There are times in the life of a regulated institution when it must open its kimono to those with the power to police it. These might be prudential regulators, competition and antitrust authorities, parts of the market infrastructure, courts, and, well, the police.

It really should go without saying that one may disclose information one is, in any case, legally obliged to disclose; there are grey areas of course: what if the information is requested but not demanded, or where there is no available power of compulsion? What happens to the information once the regulator has it? Is it still confidential?

The JC starts with the pragmatic observation that, in advanced democracies, competent regulators generally mean well, are there for our collective good, and so giving them information shouldn’t usually do great violence to the commercial principles of confidentiality (namely, protecting the commercial value of the information disclosed).

“Pragmatic” because, whether or not this is true, there is not much we can do about it. If you are not in an advanced democracy, you will generally have bigger things to worry about than whether your regulator can keep its trap shut,

So the starting point is to define “{{{{{1}}}|regulator}}s” widely, not stand on ceremony, be able to provide information to themon request, without fuss and without troubling the discloser, much less assisting it in its efforts to stymie what we must presume is a bona fide motivation for disclosure. Yes, the information absolutely should remain confidential as far as it is in the recipient’s hands, or those of its voluntary disclosees. And in all likelihood it will stay that way in the {{{{{1}}}|regulator}}’s hands too.

Now there are nefarious regulators, to be sure, and there are certainly careless or stupid ones, and if they lose, leak or wantonly broadcast proprietary information it would be a shame, but should not really be the recipient’s problem. Regulatory disclosure is an externality. No-one asks for information in the hope of giving it away.

Note that incidences of regulatory indiscretion are rare — JC has never heard of one — and resulting diminution in commercial value rarer still. Most “confidential information” really isn’t half as special as its discloser would have you believe.

The NDA process is, largely, a pantomime, that is to say.

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