By Julia Di Vito
Most government contractors, or any company with confidential information or trade secrets, have confidentiality or non-disclosure agreements with their employees, subcontractors, or other entities they do business with. While these agreements are crucial to keeping your confidential information out of the public eye, simply having an agreement in place is not sufficient to keep this information confidential. Failure to take other precautions may result in an inability to enforce a confidentiality or non-disclosure agreement. To help ensure you can enforce a nondisclosure or confidentiality agreement, follow these guidelines:
- Keep It consistent. Look at your agreements that protect confidential information, and make sure they are consistent. They should designate the same kind of information as “confidential” or “proprietary” or a “trade secret.” They should be enforceable for the same amount of time. They should provide for the designation of confidential information in the same manner (i.e. writing “confidential” on a document that is confidential). While agreements with different persons or entities naturally will not be identical, keep in mind that a court may be less likely to enforce an agreement against one party when you allowed another party access to the same information without the same protections.
- Safeguard your confidential information. Think about how your confidential information is stored. Is it stored electronically and can only be accessed by authorized users with a password? Is it stored in hard copy under lock and key? Can anyone at your company access it, or only certain personnel? These are all factors a court could consider when deciding whether this information should be kept confidential. If you do not take reasonable precautions to protect this information, a court is less likely to enforce a restriction on disclosure.
- Label your confidential information. This may seem obvious, but labeling a document as “confidential” can be very helpful in maintaining the document’s confidentiality. First, it could reduce any unintended disclosures, as a person who is not authorized to see this information will know immediately that it was meant to be confidential. Second, it is (or should be) required by your confidentiality or non-disclosure agreements, and labeling the documents will ensure they fall within the agreements’ protection. Finally, keeping a consistent system for labeling confidential documents will make it easy for anyone viewing the documents to determine whether they are confidential. It should be very obvious whether you meant to keep a certain document confidential.
In general, whether a court will enforce a confidentiality or non-disclosure agreement will depend on the circumstances surrounding the agreement, so unfortunately, there is no magic formula for making sure your agreement will be enforced. However, making a concerted effort to protect confidential information in all situations will make it more likely that a court will prohibit someone from disclosing your confidential information.
About the Author: Julia Di Vito practices in the areas of government contracts, litigation, employment, and labor. She may be reached at [email protected].