One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.)
Consider the following:
If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information …
I’m wondering whether one could improve on that formulation—given that or can be inclusive or exclusive, it’s not clear whether the above sentence would cover a proceeding to compel the Recipient and one or more of its Representatives to disclose information. Here’s an alternative:
If a proceeding seeks to compel any one or more of the Recipient and its Representatives to disclose any Confidential Information …
It’s not particularly elegant, but it articulates the intended meaning without any ambiguity. But I don’t know that I care enough about the possible ambiguity to bother with this alternative version.
[Updated 7:45 p.m. EDT: Thank you to the commenters for pointing out that any ambiguity in the first version is benign. I will begin intensive therapy for my and and or paranoia.]
In my view, for what little it may be worth, the formulation “A or B” does indeed cover the actuality “A and B.” A proceeding that seeks to compel both is, by definition, a proceeding that seeks to compel one, irrespective of the fact that it also seeks to compel the other. Whether such a formulation can be read to automatically include “or both,” it certainly cannot be read to automatically include “but not both,” which is what I think you are doing here.
It seems pretty clear that a motion to compel both the Recipient and its Representatives would be a “proceeding to compel the Recipient.”
So, as with the second post on this issue, while the obligation following this clause is not provided, it seems to me that no matter what, this clause only matters for when there is a motion to compel anyone other than the disclosing party. A confidentiality agreement doesn’t care about how the disclosing party treats its own information except when writing the exceptions to confidential information. So, why not just say, “In any proceeding to compel the disclosure of Confidential Information, Recipient shall [or Disclosing party may]…”
Whenever I stop to ponder this problem, I decide that “or” works alone. The Recipient is a member of the set defined as “the Recipient and one or more of its Representatives.” The Recipient is also a member of the set defined as “the Recipient or one or more of its representatives.” In fact, I believe that the set defined as “the Recipient and one or more of its Representatives” INCLUDES the set defined as “the Recipient or one or more of its Representatives.”
Mike: I like the suggestion in your second paragraph. But any proceeding to compel disclosure could, at least in theory, indeed be a proceeding against the disclosing party. That wouldn’t make sense in the context, but I’m inclined to use language that rules it out. And I like your structure “In any proceeding to compel,” but in this case what follows mandates that I use a conditional clause beginning with “If”. Ken
How about:
“If a proceeding seeks to compel the Recipient or any of its Representatives, or both, to disclose any Confidential Information…”
You often see “A and/or B” in contracts which I was told should probably be changed to “A or B, or both”.
Mike: I like the suggestion in your second paragraph. But any proceeding to compel disclosure could, at least in theory, indeed be a proceeding against the disclosing party. That wouldn’t make sense in the context, but I’m inclined to use language that rules it out. And I like your structure “In any proceeding to compel,” but in this case what follows mandates that I use a conditional clause beginning with “If”. Ken