Maintaining Confidentiality in Business Relationships

Confidentiality is important for most business relationships. When a client reaches out to me for assistance in structuring, drafting and negotiating an agreement for a new relationship with another business; this is one of the first questions I ask: have you executed a confidentiality agreement, commonly referred to as an NDA (non-disclosure agreement)? When parties intend to enter into discussions regarding a possible, actual or existing business relationship and intend to disclose, or have disclosed, to each other information which may include confidential information, executing an NDA is critical. Depending on the nature of the relationship, an NDA may be more important for one party than the other party. Nonetheless, negotiating an NDA ideally occurs before preliminary discussions begin or at the earliest point possible in a potential business relationship.

Before preliminary discussions proceed, an NDA is prepared by one of the parties and negotiated between the parties. In the NDA, the parties agree on the definition of “Confidential Information” and how such information must be handled between the parties. Depending on the nature and size of the business, certain businesses commonly develop and maintain a standard template NDA which such business will request be executed by the parties. Such a standard template NDA may be acceptable as is or there may be certain tweaks the other party may desire. Whether your business is asked to execute another party’s template NDA or needs an NDA drafted for a potential relationship, consulting an attorney experienced in this area of law is most efficient and will protect your interests.

Ultimately, if the parties agree to structure and memorialize a business relationship in a written agreement, the NDA may be attached and incorporated by reference and continue for the duration of the written agreement between the parties. Additional confidentiality provisions may be included in such written agreement, if applicable. Including the NDA as part of the written agreement structuring the business relationship allows the NDA to run coterminous and control during the life of the relationship. With the approach outlined above, you add a layer of protection against the ever present risk of disclosure of your confidential information from start to finish.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

CONTACT ATTORNEY JENNIFER PFLUNG MURPHY

Jennifer Pflug Murphy
Partner – Milwaukee
735 N. Water Street, Suite 610, Milwaukee, WI 53202
P: (414) 436-0353 / F: (414) 436-0354
E: jennifer.pflugmurphy@mwhlawgroup.com
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