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Three Things You Should Have in Your NDA, But May Not

1. A requirement that the party receiving confidential information identify all personnel who are given access to the information, make them aware of the NDA and insure that they are bound by it. Identification is particularly important, in case you wind up in litigation with the receiving party, or if personnel leave. If an employee leaves the receiving company and his new company seems to be using your confidential information, you’re going to want to know that the employee had access to it at his former company.

2. A requirement that the receiving party preserve all materials pertaining to the confidential information that are generated or received by all personnel who are given access to the confidential information. If you wind up in litigation, you’re going to want those materials in discovery.

3. A bright line test for what constitutes confidential information. It can be everything disclosed, or only what is labeled, so long as its clear. You don’t want to litigate whether about whether the information was appropriately identified.

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