Links from this article:
Read the article here.

The NDA stated that to trigger either party’s obligations, the disclosed information must be either marked as confidential at the time of disclosure, or be unmarked and treated as confidential at the time of disclosure and designated later as confidential by written memorandum identifying the confidential information. Years later, information which was not marked but was considered confidential was shared in a presentation. The written memorandum was never sent. The deal collapsed and one party used the other party’s “confidential” information. The (California) court held that the NDA did not apply to protect the information if the procedure set out in the agreement was not followed.

The authors conclude: “If an NDA has a marking requirement…a procedure to discuss and fix procedural errors should be instituted to prevent accidental disclosure of confidential information.”

Read the article here.


Take away:

  • If the NDA has a marking requirement, it is most important to understand the procedures for marking, and to implement them. If the procedures are not followed, the NDA may not protect those pieces of confidential information since the mark is what determines if that document was confidential.


–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find where you see this logo.