Template:Without limitation and ejusdem generis

Without limitation and ejusdem generis

“Without limitation” is surely tedious enough, but what is a legal eagle’s most sacred mission if is not to make the tedious tediouser? In furtherance of that clause we recently spotted the following in that most saintedly over-vexed of all contracts, an NDA: a specific carve-out for application of the “ejusdem generis” rule:

“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 can take, including some forms it cannot take, and others you wish it could not take such as cat memes, GIFs 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 “statutory interpretation” tutorial, is a rule of thumb for interpreting legal lists. It says, “wherever, in a list, general words follow specific ones, the general words should be read to include only objects similar in nature to those 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 capital, but not well-meaning European flash-mobs performing The Sound of Music in European bahnhoffs, 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 unquestionably qualify as “a civil commotion,” justifying spontaneous violence if not constituting it, in oprdinary parlance.)

This, colleagues, is legal eaglery taken to extraordinary, self-contradictory lengths. For what is a laundry list of specifics for, if not somehow to contextualise and meaningfully delimit the sorts of things that might appear on a list that would otherwise be a impossibly wide in application?

If all you want is to capture “all information”, 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.