NDA retroaction
Thread poster: Vladimir Zakharov

Vladimir Zakharov
Russian Federation
Local time: 22:38
Russian to English
+ ...
Feb 23, 2012

Hi all,

Just as a matter of interest, would an NDA be enforceable in case the signee discloses information which was known to them prior to NDA signing (provided that there is no related clause in the NDA itself)?

Thanks in advance!


 

Radian Yazynin  Identity Verified
Local time: 22:38
Member (2004)
English to Russian
+ ...
That's one of the reasons to NOT sign it Feb 23, 2012

I myself don't accept NDAs offered. What you are writing about is just the case. But in your situation such a question should force them expand this document by including related details (exclusions), though the one who offers to sign it would less likely accept going into details - they simply need a secure, you know. There are lots of issues to discuss before signing such papers. One of my arguments to disagree with such provisions is the fact that information about orders, as included into invoices, can be reviewed by bank employees for currency control purposes (regulations in force in Russia) and thus be disclosed to third parties. Too many gaps to agree to "be under obligations". Maybe my reply isn't helpful, but this is a large topic, really.
Just another example: how will you know a person approaching you with a job order has had access to the sensitive information related to your "confidential" contractor or has been or is in relation with your "confidential" contractor? Will you always be asking them to confirm it? You are not a clairvoyant, are you? You can't foresee everything!

[Edited at 2012-02-23 07:56 GMT]

[Edited at 2012-02-23 07:57 GMT]


 

Phil Hand  Identity Verified
China
Local time: 03:38
Chinese to English
If there's no clause, then in general, no, but... Feb 23, 2012

It would be 1) ethical and 2) prudent to tell the counterparty at the the time of signing that such a disclosure had occurred. That would protect you from future accusations of disclosing information after you were legally required not to.

 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 21:38
Member (2005)
English to Spanish
+ ...
Sensible NDAs Feb 23, 2012

Any sensible NDA will reflect that any information that was known by either party at the time of signing the NDA or which becomes publicly known (by means other than your actions/service/work, etc.) during the validity of the agreement cannot be considered as confidential information, so I reckon that if you knew something before you signed the NDA, that information is not confidential information protected by the NDA.

I am totally in favour of signing NDA's, as long as they make sense and do not include any form of clause imposing retroactive confidentiality of the kind you describe, perpetual (more than 6 months / 1 year) confidentiality after your business relationship with the customer has expired or was terminated, or clauses that require you to break the NDA's you may have or enter to with other customers (for instance, a clause that would expect you to inform your customers that you are working for their competitors, or that would expect you to disclose information about your other customers or your relationship with them).

However, it would make a lot of sense if you explained to us the situation in more detail. The information above is based upon my experience and the kind of NDA's I have signed.

[Edited at 2012-02-23 09:51 GMT]


 

Vladimir Zakharov
Russian Federation
Local time: 22:38
Russian to English
+ ...
TOPIC STARTER
information known prior to signing Feb 23, 2012

Thanks everyone.

My (hypothetical) case is not that I disclose information prior to signing, but that the information was known prior to signing, and I disclose it after signing. For instance, I have already translated something for a customer, and then he says "These were very sensitive documents, please sign the NDA".


 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 21:38
Member (2005)
English to Spanish
+ ...
Prophylaxis Feb 23, 2012

Vladimir Zakharov wrote:
My (hypothetical) case is not that I disclose information prior to signing, but that the information was known prior to signing, and I disclose it after signing. For instance, I have already translated something for a customer, and then he says "These were very sensitive documents, please sign the NDA".

I think you would be professional enough not to reveal anything from any customer even without an NDA, so I really think this is not a particularly problematic situation.


 

Vladimir Zakharov
Russian Federation
Local time: 22:38
Russian to English
+ ...
TOPIC STARTER
matter of interest Feb 23, 2012

Yes, that's why I started the topic with the words "Just as a matter of interest"icon_smile.gif

 

Radian Yazynin  Identity Verified
Local time: 22:38
Member (2004)
English to Russian
+ ...
Just as a matter of interest Feb 23, 2012

All players pretend everything is perfectly alright.

 

Claudia Brauer  Identity Verified
United States
Local time: 15:38
Member (2011)
Spanish to English
+ ...
Yes, sign it Feb 23, 2012

Vladimir, "just as a matter of interest" I would say, "Yes, sign it, why not?" My position on non-disclosure agreements is tied at the hip to confidentiality and ethics. I am big on them. The agreement is "not to disclose" (not "not to know"). So, if they want me to sign a non disclosure for something I already know, my question is, why not? Are you planning on disclosing that information in the future, or what? So, no matter how I learned the information, if at a certain point in time they ask me specifically not to disclose that which I already know, in my opinion, if I did disclose it in the future, regardless of WHERE and WHEN I obtained that information, at that point then it would be UNETHICAL for me to disclose it (maybe not illegal, maybe not bound by a previous agreement, but nonetheless unethical because I have already been asked not to disclose it). So, we can sit here and discuss the legalities of it all day and I'm sure there will be hundreds of opinions. My question always when facing these sorts of issues (and there will be many in similar in your life as a translator or interpreter) is, WHY NOT? What do I gain in NOT signing it?

And by the way, Radian, if you are of the position of not signing NDA, you are missing on work from some of the best agencies and clients in the world. MOST companies in the world use NDA now (and with internet progressively there will be more).

Most agreements are not enforceable unless taken to court. If an agency or client decides to take someone to court on a violation of a NDA, they pretty much usually have a big case on the translator having done something that anyhow would be considered unethical by the entire translator community. I have heard of no "unfair" cases against translators, as of yet.


 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 21:38
Member (2005)
English to Spanish
+ ...
Seconded! Feb 23, 2012

Claudia Brauer wrote:
So, if they want me to sign a non disclosure for something I already know, my question is, why not? Are you planning on disclosing that information in the future, or what? So, no matter how I learned the information, if at a certain point in time they ask me specifically not to disclose that which I already know, in my opinion, if I did disclose it in the future, regardless of WHERE and WHEN I obtained that information, at that point then it would be UNETHICAL for me to disclose it...

It would be difficult to word this any better. I totally and completely agree.


 

Radian Yazynin  Identity Verified
Local time: 22:38
Member (2004)
English to Russian
+ ...
My opinion Feb 23, 2012

I am not arguing the necessity of NDAs. Moreover, I don't mean the opposite, i.e. eagerness to disclose such info. Yes, this might be a good opportunity, but in my practice (with 24 yr experience) I have only received offers to sign it and be included into agencies' dbases without a concrete proposal (volumes, particular details, deadlines). I am open for a serious offer, but not promises! This is my personal opinion. Of course, when in need, one may agree to everything. My clients are lucky without such papers, rely on me and know they have their lifesaver.
But I am not satisfied by strict NDA provisions levelled by "they pretty much usually have a big case" (Claudia, sorry for quoting you). To which extent? Where is the guarantee your counterpart won't use it against you at any time? This is a serious document, and let's not say this is just formality. I wouldn't be so straightforward in advising to sign it and be happy.
On the other hand, business cooperation isn't just an NDA, but first steps in entering into good relations, trust, first small jobs growing into large important projects, and all that. Anyway every case is particular.
Good luck!

[Edited at 2012-02-23 16:50 GMT]


 

Radian Yazynin  Identity Verified
Local time: 22:38
Member (2004)
English to Russian
+ ...
How many NDAs? Feb 23, 2012

There is hardly a person who can be absolutely sure sensitive information won't leak from her/his desktop (viruses, unfair competition, human factor, absent-mindedness etc.). What would be the consequences? - It's unpredictable. Like no one will disclose how many NDAs they may have and where there is an ultimate stress limit (conflicts between each other, eg.). Someone may say, it's normal practice, many companies and people do work with them and it's not so risky (or did I say this?). But if you have a chance to work without it why not ignore it?

[Edited at 2012-02-23 17:12 GMT]

[Edited at 2012-02-23 17:48 GMT]


 


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