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Confidentiality agreement: Difference between revisions
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===='''Return of information'''==== | ===='''Return of information'''==== | ||
The disclosing party will want rights to get the information back at the end of the project. In this modern era of distributed network computing, the old entreaties to “return all copies of information” are faintly absurd: as if they’ve been kept in a manila folder in a filing cabinet somewhere, only inspected by chaperoned employees wearing white cotton gloves. Of course everything will have been transmitted electronically, will exist on servers all around the world, and the very action of attempting to return it will oblige it to be copied onto other servers. Some of these copies will be stored for years under document retention policies. So the real ask ought to be “to put beyond practical use” and have an exception for regulatory retention. There’s also a conceptual issue with information the receiving party has derived from the confidential information — this may include information which is confidential to the receiver, and should not have to be offered up to the discloser. | The disclosing party will want rights to get the information back at the end of the project. In this modern era of distributed network computing, the old entreaties to “return all copies of information” are faintly absurd: as if they’ve been kept in a manila folder in a filing cabinet somewhere, only inspected by chaperoned employees wearing white cotton gloves. Of course everything will have been transmitted electronically, will exist on servers all around the world, and the very action of attempting to return it will oblige it to be copied onto other servers. Some of these copies will be stored for years under document retention policies. So the real ask ought to be “to put beyond practical use” and have an exception for regulatory retention. There’s also a conceptual issue with information the receiving party has derived from the confidential information — this may include information which is confidential to the receiver, and should not have to be offered up to the discloser. | ||
====Term=== | ====Possibility of injunctions==== | ||
Some people like to acknowledge that the potential consequences of breach of confidence are so severe that ordinary contractual damages might not be adequate and [[equitable]] relief might be the only means of protecting your position. Injunctions, dawn raids and so on. Whatever floats your boat. Really an acknowledgment so that the poor wronged person who goes to the [[courts of chancery]] seeking injunctive relief can point to M'lud and say, “You see, your honour? That rascal knew perfectly well I might need an injunction here.” | |||
Like I say, whatever floats your boat. | |||
====Term==== | |||
Some folks will insist on a hard stop, say two years, after which supplied information ceases to be confidential. [[Inhouse lawyer|Inhouse lawyers]] may profess themselves to be immutably bound to have such a term by internal [[policy]]]]. While the commercial value of much information does go stale over time (blueprints fo a BetaMax, anyone?), this isn’t universally true — a client list is valuable however long you hold it — and the usual justification for the hard stop (“we don't have the systems to indefinitely hold infoirmation subject to confidence and don't want indeterminate liability for breach”) is a canard. Whatever information security systems you do have don’t suddenly stop working after three years. And as for indeterminate liability — well, [[no harm no foul]]: if the information really is stale then no loss follows from a breach, right? No loss, no damages. | Some folks will insist on a hard stop, say two years, after which supplied information ceases to be confidential. [[Inhouse lawyer|Inhouse lawyers]] may profess themselves to be immutably bound to have such a term by internal [[policy]]]]. While the commercial value of much information does go stale over time (blueprints fo a BetaMax, anyone?), this isn’t universally true — a client list is valuable however long you hold it — and the usual justification for the hard stop (“we don't have the systems to indefinitely hold infoirmation subject to confidence and don't want indeterminate liability for breach”) is a canard. Whatever information security systems you do have don’t suddenly stop working after three years. And as for indeterminate liability — well, [[no harm no foul]]: if the information really is stale then no loss follows from a breach, right? No loss, no damages. | ||