Commercial Division Confidentiality Agreement

Accordingly, the New York Rules prohibit the sealing of court records « unless it is a good reason in writing, » which must state the reasons for the waterproofing and « take into account the interests of the public and the parties. » Even if the parties to the trial agree to waterproofing, the public`s strong interest in the transparency of judicial proceedings may terminate their consent. Today, business conflicts often involve the creation of large documents in discovery. At the same time, clients may want their documents to remain confidential and the people they can consult to be limited. The solution is usually for the parties to submit the preparation of the documents and the resulting disclosure to a confidentiality agreement. The finding is that while in the midst of document production it may seem convenient to sign a confidentiality agreement and subsequently worry about the impact, there are some provisions that may warrant more immediate review and analysis to avoid significant problems in the future. And the attribution as « confidential » of a document filed in court should be limited to situations such as.B. Trade secrets in which sealed bids are effectively justified. The New York City Bar Association website offers a model confidentiality agreement supported by the New York City Business Division. The standard contract does not contain a provision only for the eyes of a lawyer; However, it contains « waterproofing provisions » that can lead to both logistical and legal complications. Given the time constraints of meeting investigation deadlines and the astonishing number of documents to be verified and produced, the lawyer may agree to a previously used confidentiality agreement and a « think about it later » approach when it comes to identifying certain documents that will be the subject of the agreement. Similarly, New York`s rules of professional conduct require lawyers to keep their clients informed to an extent that would go against the rules of most lawyers.

In particular, Rule 1.4(b) requires counsel to « explain a matter to the reasonable extent necessary to enable the client to make informed decisions with respect to representation. » The rules also require a lawyer to « properly consult with the client on the means to be taken to achieve the client`s objectives », « adequately inform the client of the status of the case » and « respond immediately to appropriate requests for information from a client ». Rule 1.4 (a) (2-4). If a lawyer`s determination prohibits the attorney from consulting in-house attorneys or general managers only for the eyes of a lawyer with respect to certain documents or information obtained at the time of discovery, compliance with this provision may result in a violation of New York professional rules. In the Gryphon case, the New York Appellate Division ruled that the documents should not be qualified as « only the eyes of the lawyers » if such a designation « prevents the lawyer from fully discussing all relevant information in the case with his clients in order to properly formulate a defense against the complaint against them. » In that finding, the First Division also stated that the defendants in the Gryphon case were not commercial competitors of the applicants; Instead, the parties were just adversaries in the disputes. Allegations of « prejudice » in litigation, which do not involve trade secrets, do not justify identifying the documents as « the eyes of lawyers ». The classic situation in which there might be a « good reason » to waterproof would be a real trade secret, perhaps a patented manufacturing formula. On the other hand, claiming a « prejudice » in the dispute is not enough, especially when the counterparty is not a commercial competitor, but only an opponent of the garden. Provisions that apply only in the eyes of lawyers generally prohibit the transfer of documents so designated to persons other than the lawyers negotiating the case, including the prohibition of disclosure to the client. . .

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