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Who can I share it with? - OneNDA Provision: Difference between revisions
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Who can I share it with? - OneNDA Provision (view source)
Revision as of 18:07, 11 September 2021
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“'''Promptly notify'''”: The [[JC]]’s general preference is to tone down the need to notify, or god forbid, seek permission when making a regulatory disclosure (see below for obligatory essay) but there is a balance, and we think OneNDA strikes this balance fairly well. Also, if you ''notify'' the disclosure, then the question about whether you were strictly speaking entitled disclose becomes a bit moot. | “'''Promptly notify'''”: The [[JC]]’s general preference is to tone down the need to notify, or god forbid, seek permission when making a regulatory disclosure (see below for obligatory essay) but there is a balance, and we think OneNDA strikes this balance fairly well. Also, if you ''notify'' the disclosure, then the question about whether you were strictly speaking entitled disclose becomes a bit moot. | ||
===Use only “for the purpose”=== | |||
A [[doyen of drafting]] writes: | |||
{{quote|So you’re allowed to disclose only if you’re somehow able to see into the future and know that the further recipient will only use it for the permitted purpose? That makes no sense.}} | |||
Now a common ''conceptual'' problem with confidentiality arrangements — if not necessarily a ''practical'' one — grows out of our fixation with doing things ''vicariously''. Since modern management orthodoxy obliges one to find someone as cheap and stupid as possible to carry out each molecule of a process, it is scarcely thinkable that a receiver will carry out all modes of the [[purpose]] by itself.<ref>Indeed, if you take the corporate veil literally, even the directors and officers of a corporation represent an agency problem.</ref> It will share the information with all manner of agents just to accomplish the purpose. | |||
But once your agent has it, it is out of your hands and beyond [[privity]] of the contract. All other things being equal the discloser cannot sue ''your agent'' for malfeasance; but it can sue ''you''. | |||
To be sure, over time [[legal eagles]] have developed various ruses intended to control information in the hand of unbound third parties: covenants on the receiver to impose equivalent confidentiality arrangements on its agents; requirements that the agents are [[Joinder|joined]] to the contract, or otherwise pegged directly with contractual liability to the discloser. Most of these, if they work at all, are more trouble than they are worth; none really respect the contractual chain. | |||
OneNDA solves this conundrum, by making the receiver responsible, personally, for its agents’ malfeasance. If the agent respects the purposes, so good. If it does not, your disclosure is a breach of your contract. In using an agent, the receiver casts its fortune into the lap of the Gods. | |||
It is the receiver’s problem, in other words, to make sure its agents are not clowns. | |||
We are surprised that so magisterial an authority on contract phrasing should struggle with this idea. That is want contracts are for: to allocate the risk of future events, however hard they may be to see at the time of signing. In saying “you may pass the information to your agents, but only for the purpose” [[OneNDA]] makes it clear that if your agent uses the information for another purpose, that is on you. | |||
If you don’t like that kind of indeterminacy, then ''be careful who you chose as agents''. | |||
==General== | ==General== | ||
{{confidentiality and regulatory disclosure}} | {{confidentiality and regulatory disclosure}} | ||
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On one hand: | 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; | *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; | *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: | On the other hand: | ||
*It is a compulsory legal process and, at the limit, you can’t stop it; | *It is a compulsory legal process and, at the limit, you can’t stop it; | ||
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{{ref}} | {{ref}} | ||
<references /> | |||