Bottom line:  make sure you take appropriate precautions to erase the hard drive when you get rid of your digital copier.

As a frequent traveler, I can tell you that I have innocently overheard many interesting and presumably confidential conversations just because the passenger behind or next to me has forgotten the rule of inside voices.  So, this is just a reminder that when you are in a public place, make sure you are using an inside voice and not discussing private or confidential matters that may be overheard by others in listening distance.

1. Mutual v. Non Mutual. It is important to initially decide whether the duties of confidentiality will apply to both parties (mutual) or only apply to one party (non-mutual).
2. Explicit Term. The Confidentiality Agreement should have an explicit term that is reasonable under the facts and circumstances of disclosure. Be careful for perpetual confidentiality requirements. Also, think about whether the agreement should expire on a certain date if not executed.
3. Definition of Confidential Information. The definition of what is considered “confidential information” is one of the most important parts of the confidentiality agreement. The recipient usually wants the definition to be as detailed and specific as possible, while the discloser usually wants some flexibility so that information is not inadvertently left out. Another relevant concern is whether to include a requirement that confidential information must be marked “confidential.”
4. Exclusions from Confidentiality. Along with the definition of what IS confidential, the information that IS NOT confidential is quite important. Typical exclusions include: information the recipient already knew, information learned from a third party, information that becomes publicly known, information disclosed pursuant to applicable law or information that is independently developed.
5. Obligations of Recipient. Another vital part of a confidentiality agreement is the obligation that the recipient will not disclose the confidential information it receives. Typical issues here surround disclosure to employees and/or agents and who is responsible if those parties further disclose the confidential information.
6. Recipient’s Standard of Care. The typical standard of care in a confidentiality agreement is that the recipient will treat the confidential information in the same way that it treats its own. Of course, this is only as good as the recipient’s internal control of its confidential information. Alternatively, the confidentiality agreement could contain specific provisions regarding the treatment of confidential information.
7. No License or Representations. Confidentiality agreements may contain a provision stating that no license (implied or otherwise) is granted to the recipient with respect to the confidential information. In addition, the confidentiality agreement may include a provision that states that no representations or warranties are made with respect to the confidential information.
8. Return of Information. The discloser usually wants to ensure there are adequate provisions for the return or destruction of all confidential information upon request or at the end of the agreement. Challenging areas include electronic records, especially those stored in a database or in email and the recipient’s desire to keep archival copies pursuant to document retention policies.
9. Non-Solicitation Provisions. Sometimes parties will include a non-solicitation or non-competition provision in a confidentiality agreement. Although all situations are different, confidentiality agreements are typically not the best place for these types of commitments.
10. Boiler Plate Provisions. While your eyes might be glazed over by the time you get to this section, there are a few key points usually located here. First, make sure the correct governing law applies. Second, the discloser typically wants a provision that allows it to seek injunctive relief upon breach. Finally, make sure the parties are correct in the preamble as well as the signature blocks.