Monthly Archives: October 2012

When a secret is revealed, it is the fault of the man who confided it.

I’m too sexy for this book

So said Jean de la Bruyere (a seventeenth-century essayist).  Well, what he actually said, as he was French, was:

Toute révélation d’un secret est la faute de celui qui l’a confié.

To an Anglo-Saxon intellectual property lawyer, this maxim seems highly suspect, particularly if the parties have signed a non-disclosure agreement (NDA).

There are, though, some limited situations in which IP Draughts has sympathy with the Bruyere view.

  1. No NDA.  Many technology-rich companies seek outside investment.  Some investors refuse to sign NDAs.  They use a variety of excuses, including their disclosure obligations to Stock Exchanges and their involvement with multiple companies in a sector.  This may be fine as long as the company doesn’t disclose any valuable confidential information to them.  Sometimes investment decisions can be taken without needing to know the detail of the company’s technological secrets.  However, in IP Draughts’ experience, companies sometimes disclose confidential details in the hope of securing an investment.  In this situation, it is crazy not to have an NDA in place, and the company’s management have only themselves to blame if information is subsequently leaked.
  2. Short-term NDA.  A related issue to the previous one is that some investors agree to sign NDAs but insist on limiting their duration to one, two or three years.  This may be fine for certain business information, such as the content of unpublished management accounts.  But it is far from fine in the case of technical secrets that are valuable as secrets for a much longer period of time.  For example, know-how on how to manufacture a vaccine might be a valuable secret for many years.  Rather than just accept a limited term, the company should consider a provision that carves out technical information and provides for a longer confidentiality period for such information.
  3. Bad NDA.  Whatever the circumstances of the confidential discussions, the content of the NDA matters.  Some companies regard NDAs as symbolic, and the detailed content as unimportant.  This is potentially unwise.  For example, many NDAs state that orally-disclosed information will only be treated confidentially if the oral disclosure is confirmed in writing and marked as confidential.  That may be fine if the disclosing party has a process in place to ensure that oral disclosures are confirmed in writing.  But in IP Draughts’ experience, many companies do not follow such a process.  Thus the content of conversations between a company and potential investors, or potential licensees, will not be subject to the NDA.  Oh we can’t confirm every conversation, we would never get any work done, says the exasperated CEO or CFO.  Well, so be it, says the legal adviser with zen-like calm, but in that case don’t accept the confirmation wording in the NDA, or don’t disclose confidential information in the conversation.
  4. Over-reliance on the NDA.  Having a suitably-worded NDA in place is not a licence to disclose without due care and attention.  Sometimes it is an unwise business decision to disclose certain confidential details, and better to provide just a general overview.  It may be difficult to prove a breach of confidence, expensive to obtain an injunction and difficult to enforce it, and extremely difficult to recover damages that fully compensate you for the potential financial loss that may flow from the breach.  NDAs can help (and sometimes help a great deal), but they are not a panacea.  The risk of breach needs to be weighed up against the benefits of disclosure, with the presence of a well-drafted NDA being just one factor to put into the mix.

Modern French maxims here.

English maxims here.

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Data can be a singular noun

Contract drafting is a specialised form of business writing.  By business writing I mean any writing done at work, whether in a commercial, government or other environment.  Some of the “rules” of good business writing, or of writing generally, can be applied to contract drafting. For example, it is a good idea to use short sentences and paragraphs, and keep the language as plain as it consistent with your drafting intentions.  US-style contract paragraphs that run on for more than a page should definitely be avoided, as should sentences that run on for hundreds of words.

Other aspects of general writing are less relevant to contract drafting.  General writing practice may frown on repeated use of the same word, preferring what Fowler called elegant variation.  In a school essay, it may be good form to refer to someone as a boy in one paragraph, a lad in another, and a youth in a third.  In contracts, the same word should be used repeatedly if the same meaning is intended.  If a different word is used (eg affiliate in one clause and subsidiary in another), the judge may assume that a different meaning is intended.

Understanding what the general writing conventions are, when to use them, and when to avoid them, are all part of the contract drafter’s toolkit.  An advanced contract drafter is likely to be aware of some of the guide books in this area, such as (in the UK) the Complete Plain Words, originally by Sir Ernest Gowers, or (in the US) the Chicago Manual of Style.

As time passes, writing conventions change.  People of IP Draughts’ generation know that some people get very exercised about certain conventions.  If you disagree with, or don’t care about, these conventions, that is fine by me, but be aware that your professional work may be disparaged for apparently trivial reasons by people who do care about them.  Some of us are tempted to go along with the conventions for a quiet life.  Some of IP Draughts’ younger colleagues are unfamiliar with these conventions.  Perhaps Disgusted of Tunbridge Wells has reached retirement age, and no longer carries the nation with him or her (or do I mean them?)

In no particular order, and with no attempt at being comprehensive, here are some that have been hard-wired into IP Draughts’ consciousness as a result of childhood indoctrination.  When he breaks the convention (as he often does) he does so with a few drops of residual guilt running through his veins.

Don’t split an infinitive.  But splitting an indicative is fine.  To boldly go where no man has gone before is considered wrong, but for tedious historical reasons you will boldly go is fine.

Data is a plural noun.  The singular form is datum.

Don’t end a sentence with a preposition.  Winston Churchill is thought to have been writing ironically when he scribbled in the margin of a paper that had been sent to him, “up with this I will not put”.  By using this convoluted phrase he avoided saying “I will not put up with this”; the latter version ends with a preposition.

Don’t start a sentence with a conjunction (eg and or but).  As a mischievous schoolboy, IP Draughts liked to start sentences with “But for the …” (an exception to the no-conjunctions rule) in the hope of catching out his pedantic English teacher.

General drafting conventions are covered in our course on Advanced Contract Drafting – details here.

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