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Who can I share it with? - OneNDA Provision: Difference between revisions
Who can I share it with? - OneNDA Provision (view source)
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A [[doyen of drafting]] writes: | 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.}} | {{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.}} | ||
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''. | |||
=== Ensure they are informed of the confidential nature of the information === | |||
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. | 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. | ||
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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. | 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 | Generally your right to disclose to your affiliates and so on is constrained to those who need the information to further the project, and is further conditioned by some kind of obligation to impose corresponding confidentiality terms on such a disclosee, or at least ''inform'' it of the confidential nature of the information. Expect some bleating that having to implement full-scale back-to-back confis is too onerous, or overkill, which is probably fair, as long as your counterparty grasps the essential fact that simply passing [[Confidential information - OneNDA Provision|confidential information]] to a permitted third party does not relieve it of the obligation to ensure the information doesn’t get disclosed to anyone else. If a delegate posts it on 4chan — whether the delegate was subject to an industrial grade back-to-back NDA — this is still the receiver’s problem. The information got out, and the receiver promised it wouldn’t. | ||
[[OneNDA]] addresses 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. | It is the receiver’s problem, in other words, to make sure its agents are not clowns. | ||
You may see some flummery along these lines: | |||
{{Quote|...except that there shall be no requirement to inform a recipient of the confidential nature of the information if it is subject to professional obligations to maintain confidentiality or is otherwise already bound by requirements of confidentiality.}} | |||
This is well-intended and harmless — lawyers are innately bound by confidence and privilege, so it goes without saying — and it rather points up the misconception of contractually requiring such a notice or a back-to-back arrangement in the first place. For failing to give the necessary notice is not the thing: no consequences flow intrinsically from that. What matters is that the delegated recipient keeps the information to itself. If it ''does'', it doesn’t matter that no-one told it it had to. If it does ''not'', it doesn’t matter that everyone did. | |||
==General== | ==General== | ||
{{confidentiality and regulatory disclosure}} | {{confidentiality and regulatory disclosure}} | ||