Disclosed information - NDA Provision

NDA Anatomy™ JC’s guide to non-standard confidentiality agreements. For the OneNDA, see the OneNDA Anatomy →Go uptown Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | OneNDA | Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | No licence | Non-solicitation | Permitted disclosees | Permitted disclosures | Procure compliance | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term of confidentiality | Index: Click ᐅ to expand: Confidentiality OneNDA Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

The confidentiality obligation typically is restricted to information disclosed by a disclosing party to the other under a confidentiality agreement. There are other ways a party might come by confidential information, and it is worth thinking about why they might or might not be included.

Generally you are protecting secret sauce: this is not an intellectual property arrangement per se — confidential information may not attract copyright protection at all, and even if it does the disclosed may not own it — so the emphasis here is preserving an advantage the disclosed has because no-one else has the information at all.

Therefore information you may get in connection with a project but from someone else — that wasn’t the discloser’s secret to protect — does not attract protection just because you get it in connection with the project.

and information you generate yourself in connection with the project — even though it might be quite sensitive and valuable — also does not necessarily fall within the province of an NDA.

For example, a broker who handles its client’s order flow and executes on exchange accumulates a lot of sensitive trading data, but this was not “disclosed” by the customer so would not ordinarily be covered. If your NDA covers a brokerage arrangement you might want to think about that.

Ideas that a creative team at an advertising agency generate while working on a customer brief, too, would not typically be captured by an NDA (and it would be fairly onerous on the ad agency if they were).

See also

• Confi Anatomy