Non-disclosure agreements exist so that companies can safely have discussions about developing ideas of technology without worrying about one company stealing the trade secrets of another. However, the language involved in the non-disclosure agreement is crucial. The line between what information is confidential and what information is not confidential must be clearly defined. When a company lays out the parameters for confidential information in their non-disclosure agreement, it is advisable that the company then be sure to work within the parameters which they have set.
One company that ran into trouble with the definition of confidential information as laid out in their own non-disclosure agreement is Convolve. Beginning in the late 1990’s, Convolve and Compaq Computers began doing business together using non-disclosure agreements. Those agreements specified that confidential information was to be defined as any information which was marked as confidential at the time that it was disclosed. If it was unmarked, or if the information was disclosed in a presentation, then it had to be designated as confidential in a written memorandum following the disclosure.
In late 1999, Convolve made certain presentations to Compaq regarding computer hard-drive technology, but the two companies never reached a licensing agreement for the technology. When Company then went on to use some of the information which they had gleaned from those presentations, Convolve sued Compaq for breach of contract. However, the presentations at issue were never followed by written memos to confirm that the information presented was confidential. The lower court ruled that, without the necessary memos, as laid out in the non-disclosure agreement, the agreement did not apply to any information which was disclosed in those presentations. The court decided that the non-disclosure agreements “do not appear reasonably susceptible to the interpretation Convolve urges.”
Convolve appealed the decision, arguing that, despite the lack of written memos, Compaq had understood that all of their disclosures were confidential. The appellate court rejected this argument, pointing out that it contradicted the terms of the non-disclosure agreement.
Convolve then tried to argue that, regardless of the non-disclosure agreement, state confidentiality law still applied. The appellate court also rejected that argument, stating that a non-disclosure agreement replaced any implied duty of confidentiality which might have existed between the two companies under the law. According to the Court, Convolve could not force their business partners to abide by one set of rules as laid out in their non-disclosure agreement while simultaneously forcing them to abide by a different set of rules under the law. The Court stated that “One party should not be able to circumvent its contractual obligations or impose new ones over the other via some implied duty of confidentiality.”
The Court therefore ruled in favor of Compaq, having decided that “Convolve did not follow the procedures set forth in the NDA to protect the shared information, so no duty ever arose to maintain secrecy of that information.”
The lesson learned here is that, if you are going to specifically define confidential information in your non-disclosure agreement, you should be careful to abide by all the terms of your own contract if you wish for your information to remain safe.
The business litigation attorneys at Lubin Austermuehle near Chicago and Oak Brook represent business owners and professionals regarding non-competition agreements and other claims throughout the Chicago area, including Cook, DuPage, Lake, Kane, McHenry and Will Counties; and in the Mid-West region, including Indiana, Michigan, Wisconsin and Iowa. You can contact us by calling our toll free number 630-333-0333 for a consultation or contact us online by filling out the form at the side of this blog