Don’t Use a “Can Reasonably Demonstrate” Standard

Consider the following provision, which I encountered by chance:

Confidential Information will not include information that the Recipient can reasonably demonstrate … was rightfully known by it or its Affiliates prior to the date it was disclosed by the Discloser.

No, we’re not going to get into nuances of confidentiality agreements. Instead, this post is about the notion of a standard based on whether a party can reasonably demonstrate something.

I say that’s a bad idea. It appears that you’re seeking to replace whatever burden of proof would apply in litigation with one established by contract. It’s uncertain whether that would work, given that seeking to preempt judicial discretion is a dicey proposition. (Hey, two guys wrote this article about that.) It’s also unnecessary, as it would likely be equivalent to the standard a court applies.

So add that X can reasonably demonstrate to the reject pile.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.