Non-disclosure agreement

A non-disclosure agreement (NDA) may be classified as unilateral, bilateral, or multilateral:

A unilateral NDA (sometimes referred to as a one-way NDA) involves two parties where only one party (i.e., the disclosing party) anticipates disclosing certain information to the other party (i.e., the receiving party) and requires that the information be protected from further disclosure for some reason (e.g., maintaining the secrecy necessary to satisfy patent laws^[5] or legal protection for trade secrets, limiting disclosure of information prior to issuing a press release for a major announcement, or simply ensuring that a receiving party does not use or disclose information without compensating the disclosing party).

A bilateral NDA (sometimes referred to as a mutual NDA, MNDA, or a two-way NDA) involves two parties where both parties anticipate disclosing information to one another that each intends to protect from further disclosure. This type of NDA is common for businesses considering some kind of joint venture or merger.

When presented with a unilateral NDA, some parties may insist upon a bilateral NDA, even though they anticipate that only one of the parties will disclose information under the NDA. This approach is intended to incentivize the drafter to make the provisions in the NDA more "fair and balanced" by introducing the possibility that a receiving party could later become a disclosing party or vice versa, which is not an entirely uncommon occurrence.

A multilateral NDA involves three or more parties where at least one of the parties anticipates disclosing information to the other parties and requires that the information be protected from further disclosure. This type of NDA eliminates the need for separate unilateral or bilateral NDAs between only two parties. E.g., a single multiparty NDA entered into by three parties who each intend to disclose information to the other two parties could be used in place of three separate bilateral NDAs between the first and second parties, second and third parties, and third and first parties.

A multilateral NDA can be advantageous because the parties involved review, execute, and implement just one agreement. This advantage can be offset by more complex negotiations that may be required for the parties involved to reach a unanimous consensus on a multilateral agreement.

A NDA can protect any type of information that is not generally known. They may also contain clauses that will protect the person receiving the information so that if they lawfully obtained the information through other sources they would not be obligated to keep the information secret.^[6] In other words, the NDA typically only requires the receiving party to maintain information in confidence when that information has been directly supplied by the disclosing party

Some common issues addressed in an NDA include:^[7]

• outlining the parties to the agreement;
• whether confidential information must be labeled as confidential
• the definition of what is confidential, i.e. the information to be held confidential. Modern NDAs will typically include a laundry list of types of items that are covered, including unpublished patent applications, know-how, schema, financial information, verbal representations, customer lists, vendor lists, business practices/strategies, etc.;
• the disclosure period – information not disclosed during the disclosure period (e.g., one year after the date of the NDA) is not deemed confidential;
• the exclusions from what must be kept confidential. Typically, the restrictions on the disclosure or use of confidential data will be invalid if
  • the recipient had prior knowledge of the materials;
  • the recipient gained subsequent knowledge of the materials from another source;
  • the materials are generally available to the public; or
  • the materials are subject to a subpoena
• provisions restricting the transfer of data in violation of laws governing export control and national security;
• the term and conditions (in years) of the confidentiality, i.e. the time period of confidentiality;
• the term (in years) the agreement is binding;
• permission to obtain ex-parte injunctive relief;
• description of the actions that need to be done with the confidential materials upon the agreement ending;
• what/when it can be modified by a court
• the obligations of the recipient regarding the confidential information, typically including some version of obligations:
  • to use the information only for enumerated purposes;
  • to disclose it only to persons with a need to know the information for those purposes;
  • to use appropriate efforts (not less than reasonable efforts) to keep the information secure. Reasonable efforts is often defined as a standard of care relating to confidential information that is no less rigorous than that which the recipient uses to keep its own similar information secure; and
  • to ensure that anyone to whom the information is disclosed further abides by obligations restricting use, restricting disclosure, and ensuring security at least as protective as the agreement; and
  • destruction or return upon request
• types of permissible disclosure – such as those required by law or court order (many NDAs require the receiving party to give the disclosing party prompt notice of any efforts to obtain such disclosure, and possibly to cooperate with any attempt by the disclosing party to seek judicial protection for the relevant confidential information).
• the law and jurisdiction governing the parties. The parties may choose exclusive jurisdiction of a court of a country.
• whether or not juries, arbitration allowed
• who owns or has rights over the information

Deeds of confidentiality and fidelity (also referred to as deeds of confidentiality or confidentiality deeds) are commonly used in Australia. These documents generally serve the same purpose as and contain provisions similar to NDAs used elsewhere.

NDAs are used in India.^[8] They have been described as "an increasingly popular way of restricting the loss of R&D knowledge through employee turnover in Indian IT firms".^[8] They are often used by companies from other countries who are outsourcing or offshoring work to companies in India.^[9][10] Companies outsourcing research and development of biopharma to India use them, and Indian companies in pharmaceuticals are "competent" in their use.^[11][12] In the space industry, NDAs "are crucial".^[13] "Non-disclosure and confidentiality agreements ... are ... generally enforceable as long as they are reasonable."^[14] Sometimes NDAs have been anti-competitive and this has led to legal challenges.^[15]

In the United Kingdom, the term "back-to-back agreement" refers to an NDA entered into with a third party who legitimately receives confidential information, putting them under similar non-disclosure obligations as the initial party granted the information. Case law in a 2013 Court of Appeal decision (Dorchester Project Management v BNP Paribas) confirmed that a confidentiality agreement will be interpreted as a contract subject to the rules of contractual interpretation which generally apply in the English courts.^[16]

NDAs are often used as a condition of a financial settlement in an attempt to silence whistleblowing employees from making public the misdeeds of their former employers. There is law, the Public Interest Disclosure Act 1998, which allows "protected disclosure" despite the existence of an NDA, although employers sometimes intimidate the former employee into silence despite this.^[3][17]

In some legal cases where the conditions of a confidentiality agreement have been breached, the successful party may choose between damages based on an account of the commercial profits which might have been earned if the agreement had been honoured, or damages based on the price of releasing the other party from its obligations under the agreement.^[18]

Commercial entities entering into confidentiality agreements need to ensure that the scope of their agreement does not go beyond what is necessary to protect commercial information. In the case of Jones v Ricoh, heard by the High Court in 2010, Jones brought an action against the photocopier Ricoh for breach of their confidentiality agreement when Ricoh submitted a tender for a contract with a third party. Ricoh sought release from its obligations under the agreement via an application for summary judgment, and the court agreed that the relevant wording "went further than could reasonably be required" to protect commercial information. The agreement was held to be in breach of Article 101 of the Treaty on the Functioning of the European Union, which prohibits agreements which had the object or effect of distorting competition, and was therefore unenforceable.^[19]

NDAs are very common in the United States, with more than one-third of jobs in America containing an NDA. The United States Congress passed the Speak Out Act in 2022, which prohibits them in regard to sexual harassment and sexual assault, and the bill was signed into law by President Joe Biden on December 7, 2022.^[20]

Some states, including California, have special circumstances relating to NDAs and non-compete clauses. California's courts and legislature have signaled that they generally value an employee's mobility and entrepreneurship more highly than they do protectionist doctrine.^[21][22]

• Arrow information paradox
• Attorney–client privilege
• Bank–client confidentiality
• Due diligence
• Gag order
• Non-compete clause
• Physician–patient privilege
• Severance package

• Confidentiality and Confidential Disclosure Agreements (CDA) booklet edited by the UK Intellectual Property Office - (2005-01)
• Information about non-disclosure-agreements (NDAs) published by the UK Intellectual Property Office - (2018-01-15)