Wednesday, February 23, 2011

Can you protect oral disclosures under NDA?

Dear Rich: I am considering creating an nondisclosure agreement (NDA), but I am curious and concerned about what form a document might take indicating that the recently transmitted oral communication was confidential. In one of the free NDAs you posted, it has the following statement: "If Confidential Information is transmitted orally, the Disclosing Party shall promptly provide a writing indicating that such oral communication constituted Confidential Information." So my question is how should one go about constructing this writing? My other question is on stamping; does a traditional red ink stamp saying "confidential" suffice for stamping documents?  If  you've made oral disclosures without an NDA in place, you can't claim what you said is confidential. As they say, the horse has left the barn. But if you have the agreement in place before the disclosure, then you should be okay provided you follow up with an email or other writing confirming that you disclosed something that's a secret. It's best to reference the secret without fully disclosing it in the email -- for example, "Bob, it was great seeing you for lunch. This is to confirm that I disclosed certain information at our lunch that should be treated as confidential per our nondisclosure agreement. That confidential information includes information I provided regarding our plans to develop a new mobile application for gymnasts and ballet dancers."
Stamps and other trade secret stuff. Any stamp (or handwriting) that indicates the material is "confidential" will suffice. Of course, we should remind you that the stamp is useless unless you treat the information with confidentiality. For example, stamping it "Confidential" won't mean much if the document is shown to people who are not bound by nondisclosure requirements. Here's plenty more free stuff to read about NDAs.