Comments on: The Passive Voice Has Its Uses

By: Adam Levin

Adam Levin — Fri, 23 Oct 2009 12:35:32 +0000

In my posting, I’m assuming that the phrase in question would be followed by the steps that the Recipient is required to take to avoid disclosure – e.g. notify the owner of the confidential information.

The following short passive voice phrase should, I believe, do the trick: “If disclosure of any Confidential Information is sought …”

Firstly, it’s unnecessary to refer to the Recipient. One could hardly contend with any seriousness that if disclosure is sought from the owner of the Confidential Information, then the Recipient must take some or other steps.

Secondly, it obviates the issues caused by use of terms such as “any person”, “party”, “third party”, “non-party” and so on.

Thirdly, it obviates the issues of use of the term “proceedings”. A demand made on the Recipient to disclose Confidential Information and to which the Recipient must submit, need not necessarily be made in legal proceedings. Disclosure could be required in terms of a contract. It is difficult to think of circumstances where a contract would require disclosure of another’s confidential information, but such a contract is not inconceivable.

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Mon, 05 Oct 2009 03:36:23 +0000

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By: Alex Bligh

Alex Bligh — Thu, 01 Oct 2009 07:43:52 +0000

It appears odd to go to the bother of carving out parties to the agreement here. Without context it is of course hard to tell, but one presumes the two parties have access to the Confidential Information already, and thus the carve out is otiose and “if a proceeding is brought” is fine. However, if it is that important, shouldn’t you also be carving out proceedings brought by a legal representative on one party’s behalf, by group companies, by a third party at one party’s instigation, and so forth? They are “nonparties to this agreement”. In practical terms, if this was important, one would surely provide that neither party would initiate or assist in such a proceeding, rather than seeking to carve out every possible actor through which they might do so.

By: Mark Anderson

Mark Anderson — Thu, 01 Oct 2009 07:19:57 +0000

If a Third Party brings a proceeding to compel the Recipient to disclose any Confidential Information…

“Third Party” means any person other than a Party [or its Affiliate].

By: Evan Brown

Evan Brown — Thu, 01 Oct 2009 03:17:58 +0000

I like the economy of the third, active voice option except that a proceeding does not seek. That’s the job of one’s opponent.