Legal Aspects of Sharing Business Documents

Publish date: Jan 10, 2008

As a commercial lawyer in PJ O' Driscolls Solicitors in Bandon I think its a great idea to share a fairly standard legal document such as an NDA.

However, as a heads up, in these matters it is the background legal (and commercial) advice that is as important as the document itself, so, in the same spirit, please see some material legal and commercial pointers which I hope might be useful:

  1. Do not rely on an NDA as it will be very hard to prove the other party took your confidential information!
  2. bearing that in mind if you want to keep it confidential, then, keep it confidential ! Be very wary of letting too many cats out of the proverbial bag, because, apart from a third party walking off with your idea (or unprotected name) it also can mean that the information is "out there" in the public domain which could hurt your chances of, for example, having a patent granted later on as it might be perceived as no longer being an "invention" as it would already be perceived as being part of the state of the art;
  3. if handing information over actually mark it "CONFIDENTIAL" so that there can be no doubt in anyones mind as to it's confidential status;
  4. don't let me put you off !! .. it is very important to use an NDA if only for the simple commercial reason that it focuses the parties on the existence of, and, importantly the ownership of the IP in question (which normally includes know how/trade secrets) and that you view it as something protectable and therefore, valuable!

I would however grant a serious note of warning on using anothers legal businesses document in so far as it has no doubt been tailored to suit heir own business needs, not yours, and, most times, it’s what is not already contained within an agreement that is the pitfall, and not necessarily how you tailor what is already there…

Finally, (phew!), legal (I am just focusing on legal documents, not business plans/pitches etc) documents such as shareholder agreements can be very complex and, they govern the relationship between parties (to include investors for example) for years to come on matters such as ownership, time spent, division of profits, transfer of shares, exit events/strategies etc and therefore each one has to be (sometimes heavily) individually tailored to suit the individuals concerned.

The sharing of information is a good thing, especially in the start up market where cost-is-king, but, in essence, some information should be just that, for information purposes only and not used to govern financial and legal relationships going forward.

Sorry for the long post, typical lawyer eh !!

I would add that if a start up member of Open Coffee wants to have a background chat on a commercial legal matter then I am happy to have a quick chat with them to (hopefully) give some pointers and basic advice and, at no charge.