CONFIDENTIAL INFORMATION, "RETURN OR DESTROY" CLAUSES AND THE PERNICIOUS PERSISTENCE OF ELECTRONIC RECORDS
Parkhill Venture Counsel, P.C.
As lawyers we strive to say what we mean in contracts, and mean what we say. Sometimes though, tradition, force of habit or seemingly competing priorities lead us to write things one way, but act completely differently.
This happens regularly with confidentiality provisions in business agreements. It is common to see language in NDAs and commercial agreements similar to the following:
Indubitably companies doing business together want to know that if they exchange confidential information the other party will protect that information against disclosure. I will posit, however, that the "industry standard" language we use to describe those obligations is a relic of paper-document times, is impossible for most companies to comply with and may result in uncomfortable discussions. I will suggest instead that we focus on strong processes for managing electronic data rather than the impossible ideal of complete expungement.