What most businesses neglect when managing confidentially

If you are a lawyer, you may find this response fairly obvious and something you’d advise all clients to consider. However, in my experience as an IP Specialist within Scottish Enterprise, when it comes to managing confidentiality the majority of business are not aware of the importance of keeping records.

Simply put, to strengthen your ability to take action if a disclosure occurs it is imperative that you have appropriate record keeping. If you review the UK IPO’s guidance on NDAs, it explicitly states:

During your meeting

You should record what you disclose at meetings or in presentations. Ask people present to sign a paper copy of a presentation, or a technical drawing to prove they have seen it.

Record what information you disclose in informal situations such as discussions or conversations. Note when and where that took place.

This is a valid approach in the (old) world of paper based communication where it would be advised to present printed materials at meetings and have them returned so that no copies reside with an individual outside of the business. However, with a focus on digital communication and online presentations/meetings, this seems almost historic.

When conducting an online meeting which you wish to remain confidential and an NDA is in place, companies must continue to keep appropriate records of disclosure: 

• Consider what specific meetings are considered confidential?
• Will minutes be taken to keep a written record of the specific confidential matters discussed?
• Who will be in attendance?
• What explicit confidential information will be disclosed?
• Are participants aware of these points? (Prior to the meeting)

It could be considered fairly easy to document who has been invited to the call, when it took place and have a recording as evidence of disclosure. However, (being rather technically cynical), you may never know if someone else in the room (off screen), if they are taking screenshots (or even recording the whole meeting) which could then be passed on to a third-party.

Regarding the NDA, as a legal document itself there is one further point to be made: has the purpose been clearly defined? Meaning, what is the purpose of having the NDA in place? e.g. to discuss the development of a new formula, to disclose an invention to a company who may create a prototype for you or to discuss sourcing of materials. Without a clearly defined purpose, the receiving party (who is legally at risk if a disclosure occurs) may not recognise what elements of the meeting are considered confidential - does it include the new product to be launched, financial projections and/or what they are having for dinner?

Regardless of where you intend to utilise an NDA (online or face-to-face meetings), it is important to establish trust and help those you are working with (possibility for the first time) to recognise that your use of such an agreement does not indicate mistrust, it binds the relationship to allow for improved communications.

I was wondering what your experience is in managing confidentiality (above and beyond the legal documents) and have you changed how it is managed when you have limited face-to-face meetings with those outside your business?

Lastly are there any other IP relating topics you'd like covered?