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Three Reasons Why Not To Sign Non Disclosure Agreements

38 points by tarmac 17y ago

tptacek 17y ago
These people are --- and excuse the breach of decorum here --- insane. VC's (for instance) won't sign NDAs because they don't want to be sued by spurned startups over something they "never" do (stealing ideas from pitches --- note: this is something several of them do). VC's get to not sign NDAs, because no VC will sign them, and they have all the money. Consultancies sign NDAs because they are going to work in close contact with their clients code, documentation, client roster, sales pipeline, and, oh-yes, client protected information. Consultancies don't get to not sign NDA's, because every other professional consultancy will sign them, and because they have none of the money. NB: Many fun prospective clients are legally and/or contractually required to have you sign NDAs. NB: Many smart clients don't simply want to give you cart blanche with their name and logo for your portfolio page, which is the real subtext behind not signing an NDA. My advice, as both a consultant and as a buyer of consulting services, is: if you have even the faintest sense that your client has legal representation, don't bother ever trying to negotiate out of the NDA. Just walk away from the deal, which you aren't going to get anyways once you try to avoid signing contracts.
- qeorge 17y ago
  Respectfully, I disagree. I'm in the same business as the author (web design / development consulting) and this rings true. Clients have tried to get us to sign all manner of ridiculous NDAs, and are constantly trying to buffalo us with threats of taking their business elsewhere, but I've yet to lose a sale because of refusing to sign an NDA. We've been successful here though because we're very clear about what we are willing to sign NDAs about, and why. I will not sign an NDA to hear your cool idea because that could limit my opportunities going forward, but I will sign one that says I won't disclose your client roster or sensitive client data to an outsider. VC's (for instance) won't sign NDAs because they don't want to be sued by spurned startups over something they "never" do (stealing ideas from pitches --- note: this is something several of them do). VC's get to not sign NDAs, because no VC will sign them, and they have all the money. There's another facet at work here too: VCs won't sign an NDA to hear your pitch because you're providing absolutely no value to them, in exchange for something of great value (their ability to fund similar projects later). That's exactly the reason I won't sign an NDA just to have a meeting either. Your point about the VC having all the leverage holds here as well. We like to say the VC is "the hot chick" in the situation. I think you'd find that in the design/development business there's a lot more "hot chicks" than you might think. My advice is simple: get your lawyer to draft a generic NDA that you are comfortable signing, and offer that instead. Otherwise, if any contract makes you uncomfortable at all, don't sign it. You can jeopardize the entire future of your business, just to make that one sale.
  - tptacek 17y ago
    There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, though, it's irresponsible for them not to have you NDA'd. For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client.
    - qeorge 17y ago
      For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client. That's what I was trying to say, but you put it much more succinctly. The main friction points we encounter involve what exactly is "client specific", as everyone likes to think their ideas are unique, which is rarely the case.
      - tptacek 17y ago
        I just looked at 4 NDAs we recently handled from megacorps, and all of them were very clear that the NDA covered: * valuable or sensitive information * that was disclosed by the client to the vendor * that hadn't been publicly disclosed by anyone * and hadn't been known to the vendor prior to the NDA * and hadn't been disclosed to the vendor by someone else sans-NDA That seems to me like extraordinary care not to be overbroad. These were megacorp boilerplate MNDA's, not something we had to negotiate. Three of these NDA's, from totally different megacorps, used literally identical language to define "Confidential Information".
- grellas 17y ago
  In Silicon Valley, the "pitch" level of nda is basically worthless and not much better than not having one at all. For this reason, anyone pitching for investment money will not be (or at least should not be) relying on any form of nda to protect anything that is truly proprietary (i.e., distinctive to that company and giving it a significant competitive advantage) and confidential, at least until negotiations reach an advanced stage and a strong comfort level is established. That said, in almost every other context, confidentiality agreements are invaluable ways to protect competitive advantage and, indeed, if a company fails to use them, it may legally compromise the right to protect its trade secret information. That is why companies use these as a matter of course, both with employees and with contractors. Such agreements do not protect abstract ideas (which are basically in the public domain for the most part) and do not subject the recipient to risk if the recipient had pre-existing knowledge of any information from a separate source. Thus, the argument not to sign an nda really amounts to saying that the consultant doesn't want to be hassled with a small extra burden even while asking for the privilege of working with the company's most closely protected information. For 99% of the cases, this argument will go nowhere. The fact that some companies that have essentially worthless information use nda's, or that nda's are sometimes abused, does nothing to change the above fundamentals. Of course, if an nda is onerously worded, it should be negotiated (and rejected, if insisted upon) - but that does not dispense with the need of an nda that is bona fide for the needs of the situation.
- NateLawson 17y ago
  I agree. There is a time and a place for signing an NDA. Don't sign everything that crosses your desk just to get the initial meeting and don't try to avoid signing one as part of finalizing a contract with a good client. An NDA protects you as a consultant as well. That is, if you're smart enough to make sure it's bidirectional. Always make sure every NDA has an expiration date for the obligation to keep the information secret (not just for the contract itself). Tech knowledge has a shelf life and you don't want to be on the hook for backing up 10-year-old data because it's impossible to prove you've destroyed it. Note I am not in the web consulting business so there are slightly different sensitivities.
- bensummers 17y ago
  When I worked as a consultant, I never found my refusal to sign an NDA a problem. I did, of course, carefully explain my reasons. It's a slightly different matter after the contract is signed, though. If they have some unique technology or sensitive data to protect, then an NDA is reasonable. But not before the work is agreed!
tonystubblebine 17y ago
Does anyone have a good way to explain why they're not going to sign an NDA? We'll sign as part of signing a contract, but not as part of the initial discussion. I've never found a way to say no without getting a shocked reaction from the requester.
- NateLawson 17y ago
  Just ask for an initial conf call to discuss the project, leaving out the most sensitive details. They can decide what is too sensitive. If they won't even tell you the gist of the project without an NDA, they're probably not a good client and you should walk away.
- Tichy 17y ago
  For me the risk just seems too high. I have lots of ideas all the time. The problem with an NDA is that I don't know beforehand what they want to tell me. What if they tell me something I already had as an idea myself, and was looking forward to working on? Worse, it seems difficult to prove in hindsight what is things they told me and what isn't. An NDA might give them the option to hijack any of my further work by claiming that it is based on something they told me beforehand. So I have a lot to lose and nothing to gain.
- Angostura 17y ago
  As I've posted above, I've never refused but I have frequently suggested small amendments and explained why I was concerned. It's never been a problem, though in all honesty this has been with mid-sized businesses rather than megacorps.
andrewhyde 17y ago
FriendDA rocks: This agreement has absolutely no legal binding. However, upon breach or violation of the agreement, I will feel free to do any of the following: 1. Curse you under my breath. 2. Publicly disclose the manner of your screw-i-tude. 3. Write about your transgressions in ALL CAPS. 4. No longer consider you a person with whom I can share my ideas. http://friendda.org/ http://friendda.org/

38 points by tarmac 17y ago

These people are --- and excuse the breach of decorum here --- insane. VC's (for instance) won't sign NDAs because they don't want to be sued by spurned startups over something they "never" do (stealing ideas from pitches --- note: this is something several of them do). VC's get to not sign NDAs, because no VC will sign them, and they have all the money. Consultancies sign NDAs because they are going to work in close contact with their clients code, documentation, client roster, sales pipeline, and, oh-yes, client protected information. Consultancies don't get to not sign NDA's, because every other professional consultancy will sign them, and because they have none of the money. NB: Many fun prospective clients are legally and/or contractually required to have you sign NDAs. NB: Many smart clients don't simply want to give you cart blanche with their name and logo for your portfolio page, which is the real subtext behind not signing an NDA. My advice, as both a consultant and as a buyer of consulting services, is: if you have even the faintest sense that your client has legal representation, don't bother ever trying to negotiate out of the NDA. Just walk away from the deal, which you aren't going to get anyways once you try to avoid signing contracts.

qeorge 17y ago
Respectfully, I disagree. I'm in the same business as the author (web design / development consulting) and this rings true. Clients have tried to get us to sign all manner of ridiculous NDAs, and are constantly trying to buffalo us with threats of taking their business elsewhere, but I've yet to lose a sale because of refusing to sign an NDA. We've been successful here though because we're very clear about what we are willing to sign NDAs about, and why. I will not sign an NDA to hear your cool idea because that could limit my opportunities going forward, but I will sign one that says I won't disclose your client roster or sensitive client data to an outsider. VC's (for instance) won't sign NDAs because they don't want to be sued by spurned startups over something they "never" do (stealing ideas from pitches --- note: this is something several of them do). VC's get to not sign NDAs, because no VC will sign them, and they have all the money. There's another facet at work here too: VCs won't sign an NDA to hear your pitch because you're providing absolutely no value to them, in exchange for something of great value (their ability to fund similar projects later). That's exactly the reason I won't sign an NDA just to have a meeting either. Your point about the VC having all the leverage holds here as well. We like to say the VC is "the hot chick" in the situation. I think you'd find that in the design/development business there's a lot more "hot chicks" than you might think. My advice is simple: get your lawyer to draft a generic NDA that you are comfortable signing, and offer that instead. Otherwise, if any contract makes you uncomfortable at all, don't sign it. You can jeopardize the entire future of your business, just to make that one sale.
- tptacek 17y ago
  There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, though, it's irresponsible for them not to have you NDA'd. For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client.
  - qeorge 17y ago
    For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client. That's what I was trying to say, but you put it much more succinctly. The main friction points we encounter involve what exactly is "client specific", as everyone likes to think their ideas are unique, which is rarely the case.
    - tptacek 17y ago
      I just looked at 4 NDAs we recently handled from megacorps, and all of them were very clear that the NDA covered: * valuable or sensitive information * that was disclosed by the client to the vendor * that hadn't been publicly disclosed by anyone * and hadn't been known to the vendor prior to the NDA * and hadn't been disclosed to the vendor by someone else sans-NDA That seems to me like extraordinary care not to be overbroad. These were megacorp boilerplate MNDA's, not something we had to negotiate. Three of these NDA's, from totally different megacorps, used literally identical language to define "Confidential Information".
grellas 17y ago
In Silicon Valley, the "pitch" level of nda is basically worthless and not much better than not having one at all. For this reason, anyone pitching for investment money will not be (or at least should not be) relying on any form of nda to protect anything that is truly proprietary (i.e., distinctive to that company and giving it a significant competitive advantage) and confidential, at least until negotiations reach an advanced stage and a strong comfort level is established. That said, in almost every other context, confidentiality agreements are invaluable ways to protect competitive advantage and, indeed, if a company fails to use them, it may legally compromise the right to protect its trade secret information. That is why companies use these as a matter of course, both with employees and with contractors. Such agreements do not protect abstract ideas (which are basically in the public domain for the most part) and do not subject the recipient to risk if the recipient had pre-existing knowledge of any information from a separate source. Thus, the argument not to sign an nda really amounts to saying that the consultant doesn't want to be hassled with a small extra burden even while asking for the privilege of working with the company's most closely protected information. For 99% of the cases, this argument will go nowhere. The fact that some companies that have essentially worthless information use nda's, or that nda's are sometimes abused, does nothing to change the above fundamentals. Of course, if an nda is onerously worded, it should be negotiated (and rejected, if insisted upon) - but that does not dispense with the need of an nda that is bona fide for the needs of the situation.
NateLawson 17y ago
I agree. There is a time and a place for signing an NDA. Don't sign everything that crosses your desk just to get the initial meeting and don't try to avoid signing one as part of finalizing a contract with a good client. An NDA protects you as a consultant as well. That is, if you're smart enough to make sure it's bidirectional. Always make sure every NDA has an expiration date for the obligation to keep the information secret (not just for the contract itself). Tech knowledge has a shelf life and you don't want to be on the hook for backing up 10-year-old data because it's impossible to prove you've destroyed it. Note I am not in the web consulting business so there are slightly different sensitivities.
bensummers 17y ago
When I worked as a consultant, I never found my refusal to sign an NDA a problem. I did, of course, carefully explain my reasons. It's a slightly different matter after the contract is signed, though. If they have some unique technology or sensitive data to protect, then an NDA is reasonable. But not before the work is agreed!

tonystubblebine 17y ago

Does anyone have a good way to explain why they're not going to sign an NDA? We'll sign as part of signing a contract, but not as part of the initial discussion. I've never found a way to say no without getting a shocked reaction from the requester.

NateLawson 17y ago
Just ask for an initial conf call to discuss the project, leaving out the most sensitive details. They can decide what is too sensitive. If they won't even tell you the gist of the project without an NDA, they're probably not a good client and you should walk away.
Tichy 17y ago
For me the risk just seems too high. I have lots of ideas all the time. The problem with an NDA is that I don't know beforehand what they want to tell me. What if they tell me something I already had as an idea myself, and was looking forward to working on? Worse, it seems difficult to prove in hindsight what is things they told me and what isn't. An NDA might give them the option to hijack any of my further work by claiming that it is based on something they told me beforehand. So I have a lot to lose and nothing to gain.
Angostura 17y ago
As I've posted above, I've never refused but I have frequently suggested small amendments and explained why I was concerned. It's never been a problem, though in all honesty this has been with mid-sized businesses rather than megacorps.

andrewhyde 17y ago

FriendDA rocks: This agreement has absolutely no legal binding. However, upon breach or violation of the agreement, I will feel free to do any of the following: 1. Curse you under my breath. 2. Publicly disclose the manner of your screw-i-tude. 3. Write about your transgressions in ALL CAPS. 4. No longer consider you a person with whom I can share my ideas. http://friendda.org/ http://friendda.org/