“No-one ever litigates the wording of an NDA”: wrong!

There have been several articles on this blog about confidentiality agreements. This golden oldie, from 2013, reminds us that the wording of these agreements matters and will be applied by the courts.

IP Draughts

consensuSome people regard the signing of confidentiality agreements (sometimes known as non-disclosure agreements, or NDAs) as symbolic – merely a gesture of good faith.  According to this view:

  • What matters is that a document called an NDA is signed.
  • The detailed wording of the NDA is not important.  For instance, it doesn’t matter that the NDA includes strict conditions on the confidentiality obligations, eg a requirement to confirm orally-disclosed information in writing within 30 days of the oral disclosure.  It certainly isn’t worth negotiating the wording, even though no-one is planning to keep detailed notes of the confidential discussions and send those notes to the other party as evidence of what has been disclosed.
  • The court will ignore the wording of the agreement and give effect to the general business intention that the information should be treated confidentially.
  • Anyway, who goes to court over the obligations in NDAs, and how…

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