Purpose - OneNDA Provision: Difference between revisions

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 ===OneNDA discussion ===
 {{confi purpose}}
+====but be clear====
+Take care to describe the purpose at least make it to clear. This does not require a legal drafting skill; a salesperson with a decent command of English should be able to manage it (indeed, many [[legal eagle]]s have so curious a grip on English — like some kind of half-Nelson or choke-hold —that they ''can’t'' manage it); just enough facility to be broad enough to capture all information flowing between the parties that reasonably relates to the secret undertaking, so that you know it will be kept quiet, but not ''so''  indeterminate that it could take in any kind of random information that happens to pass between the parties, whether related to the purpose or not, and whether commercially sensitive or not.
-Take care to describe the purpose at least make it to clear. This does not require specific legal skill; a salesperson with a decent command of English should be able to manage it (indeed, many [[legal eagle]]s have so curious a grip on English — like some kind of half-Nelson or choke-hold —that they ''can’t''); just enough facility to be broad enough to capture all information flowing between the parties that reasonably relates to the secret undertaking, so that you know it will be kept quiet, but not ''so''  indeterminate that it could take in any kind of random information that happens to pass between the parties, whether related to the purpose or not, and whether commercially sensitive or not.
+Once inked, [[legal eagles]] will obsess about the precise ''limits'' of the purpose. All sorts of shades of meanings and subtleties will emerge from shadows. The question will arise, “I have this document the customer gave me; I should like to send it to this other person, who has a good reason for wanting it. Is it within the scope of the [[Purpose - OneNDA Provision|Purpose]]?”
-Once inked, legal eagles will obsess about the precise limits of the purpose. The question will arise, “I have this document; I should like to send it to this person, who has a good reason for wanting it. Is it within the scope of the purpose?”
+To answer this question they will burrow deeply into drafting that was, we now know, dashed off rangily by someone in [[Sales]]. It won’t clearly address the present situation. Unsatisfied, and having set common sense aside for the moment, the legal eagle will look further afield for help, soon getting themselves tangled up in the definition of “[[Confidential information - OneNDA Provision|confidential information]]” — also a thing of some craftspersonship — the manifest exceptions, [[carve-out]]s and exclusions to it, and before long the winding path will lead them to the tentative conclusion that ''perhaps the [[litigation]] team might have a view'', or even [[outside counsel]]?
+====A gratuitous slight on litigation lawyers====
+If you want a sensible answer, do not ask the [[litigation department]]. The litigation department owes its existence to people’s collective inability to ask themselves sensible questions.
-To answer this question they will burrow deeply into drafting that was, we now know, dashed off rangily by someone in Sales. Unsatisfied, they will look further afield for help, soon getting themselves tangled up in the definition of “[[Confidential information - OneNDA Provision|confidential information]]” — also a thing of some craftspersonship — the manifest exceptions, [[carve-out]]s and exclusions to it, and before long the winding path will lead them to the tentative conclusion that perhaps the [[litigation]] team might have a view, or even [[outside counsel]]?
+The [[JC]] has a view that {{maxim|if you have to ask the litigation department if something’s okay, it is probably not okay.}}<ref>Excepted from this are exceptions to the [[sovereign immunity]] policy and dispensations with the need to appoint [[process agent]]s. Litigation will say no anyway. Sub-rule: if something ''is'' okay, and you ask the [[litigation department]] if it is okay, they will say it is not okay. Meta-rule: ask a silly question, you will get a silly answer.</ref> We get to that point on this line of reasoning: we are interpreting our rights and obligations under a legal contract with a (presumably) valuable customer. If we have in mind that a consequence of adopting our desired interpretation is (i) the customer might sue us, but (ii) after a full trial, we would win, then we are wildly missing the point: the primary mischief here is not ''losing in court'', but ''being sued by a valuable customer'', that latter thing itself being a consequence of ''pissing off a valuable customer''.
-The [[JC]] has a view that {{maxim|if you have to ask the litigation department if something’s okay, it is probably not okay.}}<ref>Excepted from this are exceptions to the [[sovereign immunity]] policy and dispensations with the need to appoint [[process agent]]s. Litigation will say no anyway. Sub-rule: if something ''is'' okay, and you ask the [[litigation department]] if it is okay, they will say it is not okay. Meta-rule: ask a silly question, you will get a silly answer.</ref> We get to that point on this line of reasoning: we are interpreting our rights and obligations under a legal contract with a (presumably) valuable customer. If we have in mind that a consequence of adopting our desired interpretation is (i) the customer might sue us, but (ii) after a full trial, we would win, then we are wildly missing the point: the primary mischief here is not ''losing in court'', but ''being sued by a valuable customer''. Customers who are actively pursuing you in court tend not to give you as much business as those who are not. To “ask litigation for a view” is to acknowledge that ''our customer might violently object to what we are proposing to do''.
+To “ask litigation for a view” is to acknowledge that ''our customer might violently object to what we are proposing to do''. Customers whom you have pissed off so badly that they are are actively pursuing you in court tend not to give you as much business as those whom you have not.
 Here we call to attention our old friend the [[commercial imperative]]. Commerce is a long game, friends. There are ''very'' few cases where the short term benefit of winning on this point, now, outweighs the longer reward of ongoing revenue, gladly imparted, by a happy customer. They usually come about where customer is in the process of spiralling into the side of a hill. Usually, this does not happen in connection with an NDA.
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 {{Sa}}
 [[The Ultimate Purpose]], being the reason any commercial undertaking exists.
+*[[If you have to ask the litigation department if something’s okay, it is probably not okay.]]
 {{ref}}