Template:Without limitation and ejusdem generis: Difference between revisions

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-===[[Without limitation]] and [[ejusdem generis]]===
+===Without limitation and [[ejusdem generis]]===
-Recently spotted: specifically carving out [[ejusdem generis]] as an articulation of the [[without limitation]] trope:
+“Without limitation” is surely tedious enough, but what is a legal eagle’s most sacred mission if is not to make the tedious tediouser?
-:''“including '''([[without limitation]] or application of the [[ejusdem generis]] rule)''' data (including risk and historic, know-how, formulae, processes, designs, personnel and operational information, photographs, drawings, specifications, computer code, persona [[data]], portfolio data and any other information or data relating to the business, staff, operations or trading strategies of the company.”''
-This, of all places, in a ''[[confidentiality agreement]]''. This is [[legal eagle]]ry taken to an extraordinary, self-contradictory lengths. This is the [[legal eagle]] as [[The farmer and the sheep|farmer, cack-handedly counting her sheep]]. For what is the purpose of a laundry list of specifics in the first place, if not to somehow craft, contextualise or otherwise put some meaningful boundaries on a general expression which might otherwise have impossibly wide application? If you just want to capture all information, just ''say'' “all information”, and don’t trouble your reader with a laundry list which is patently redundant ''or'' the [[ejusdem generis]] carve-out.
+In furtherance of that pursuit we recently spotted the following in that most saintedly over-vexed of all contracts, an ''[[NDA]]'': a specific [[carve-out]] from application of the “[[ejusdem generis]]” rule when interpreting the contract:
+:“including '''([[without limitation]] or ''application of the [[ejusdem generis]] rule'')''' ''[ ... and here follows a long and tedious catalogue of the various existential forms that copyrightable data might be presumed to take, including some forms it in law cannot, such as raw data, and others you wish it could not, such as cat memes, GIFs and [[hot takes on Twitter]]] ...'' and any and all other information, howsoever described, inasmuch and insofar as it relates to the Discloser.”
+(The ''[[ejusdem generis]]'' rule, for those who were asleep in their “[[statutory interpretation]]” tutorial, is a [[Heuristic|rule of thumb]] for interpreting legal lists. It says, “wherever, in a list, where general words follow specific ones, the general words should be read to include only objects similar in nature to the specific words”. So, for example, in the list “uprising, riot, looting, organised disobedience ''or other civil commotion''”, “other civil commotion” would include Q-Anons storming the Capitol Hill, but not well-meaning European flash-mobs bringing Delft bahnhoff to a standstill with an ad-hoc performance from ''The Sound of Music'', as long as not specifically violent in aspect, even though, in the abstract, hundreds of randoms gratingly joining in to the tune of ''Doe a Deer'' while you desperately try to deduce the right platform for the 14:35 to Interlaken Öst would certainly qualify as “a civil commotion,” and would ''justify'' spontaneous violence even if it did not, in oprdinary parlance, constitute it.)
+Now excluding [[ejusdem generis]] is surely to take [[legal eagle]]ry to extraordinary, self-contradictory lengths. For what is a laundry list of specifics ''for'', if not to contextualise and meaningfully delimit the sorts of things that a draftsperson might have in mind? To curtain what might otherwise be a impossibly wide in application?  If all you want is to capture “all information”, you just ''say'' “all information”, and be done with it: don’t trouble your counterparty with both a laundry list which [[Q.E.D.]], is ''patently'' redundant ''and'' an [[ejusdem generis]] [[carve-out]], which underscores that fact.