Comments on: “Confidentiality” or “Nondisclosure”?

By: Ken Adams

Ken Adams — Wed, 16 Sep 2009 16:12:18 +0000

Ben: That seems arbitrary. Ken

By: Ben

Ben — Wed, 16 Sep 2009 15:48:23 +0000

I’ve always understood the distinction to be that non-disclosure agreements are signed by vendors, suppliers and potential customers whereas confidentiality agreements are signed by employees.

By: Ken Adams

Ken Adams — Wed, 16 Sep 2009 14:39:47 +0000

Jack: I think your approach makes sense. Ken

By: Jack

Jack — Wed, 16 Sep 2009 14:31:58 +0000

People will use the convenient shorthand regardless of the actual title. I have seen people refer to a real estate purchase agreement as a PSA, even though the agreement may call itself a Purchase Agreement, Real Estate Purchase and Sale Contract, Contract of Sale, or just plane Agreement. Dirt lawyers commonly refer to a nondisturbance agreement as an SNDA (subordination, non-disturbance and attornment agreement), even though SNDA is never a true acronym for the title of the agreement. (At best, the acronymn should be SNAA.) This practice does not trouble me; I guess I am just not an acronymaniac.

By: Mel

Mel — Tue, 15 Sep 2009 18:21:34 +0000

I use the term nondisclosure agreement or proprietary information agreement. In the government contracting arena, confidential is a security classification level. Thus, it is confusing and potentially misleading when the parties agree to hold information as “confidential”.

By: Joyce Morrison

Joyce Morrison — Tue, 15 Sep 2009 17:59:25 +0000

I routinely use the term “CDA” as mentioned by Mark Anderson (even if the title of the document is Nondisclosure Agreement) because I work in the pharmaceutical/biotech industry and NDA means New Drug Application. The CDA is routinely used for confidentiality agreements and non-disclosure agreements. It avoids momentary confusion.

By: Ken Adams

Ken Adams — Fri, 11 Sep 2009 12:29:48 +0000

Gil: Who said anything about aid to a judge? My only interest is figuring out which title works best for the reader, in terms of being both concise and informative.

In terms of positive versus negative, in any kind of writing you’re better off expressing a concept as X rather than not Y, all other things being equal.

Ken

By: Gil

Gil — Fri, 11 Sep 2009 12:06:47 +0000

Ken, the titles that parties use to label their agreements are not conclusive. Therefore, the actual content of the agreement is of more aid to a judge.

I think the above is also relevant to your point about drafting in the positive rather than the negative. I wasn’t fully persuaded on this point by the way…

By: Ken Adams

Ken Adams — Thu, 10 Sep 2009 22:07:56 +0000

Eric: My Edgar searches didn’t look for contracts with the title “confidentiality agreement” or “nondisclosure agreement.” Instead, I looked for use of the terms anywhere in any kind of contract. Ken

By: mark anderson

mark anderson — Thu, 10 Sep 2009 17:08:35 +0000

But for the title of the agreement, confidentiality agreement is more often used than nondisclosure agreement.

Illogical, isn’t it?

By the way, I have always disliked the language, often seen in US CDAs/NDAs along the lines of: “the obligations of confidentiality and nondisclosure set out in this agreement…” Surely “and nondisclosure” is redundant?