• Ken Adams

Why I’m Bothering to Tell You About Two New “Confidential Information” Sifters

Updated: Aug 27, 2021

We’re working on two new Sifters relating to confidentiality—Confidential Information: Identified as Confidential and Confidential Information: Reasonably Considered Confidential.

What, you’re not excited? Don’t worry—I don’t expect anyone to feel a surge of adrenaline on hearing this news. For one thing, I confess to suffering from a mild case of fatigue over all the attention paid to NDAs (although I’ve certainly contributed to online chatter about NDAs). Yes, they’re the cockroach of the contracts world, causing many of us to waste lots of time, but they’re not that interesting.

And it’s not as if we’re lacking in confidentiality Sifters. Not including these two, we already have 33! Isn’t this too much of a good-ish thing?

I’m telling you about these new Sifters not because they’re an exciting development, but because of what they say about our process.

We’re always on the lookout for issues that supplement our coverage of a particular topic. I wasn’t at the helm when we first tackled confidentiality, so I’ve permitted myself some infilling. Recently I had occasion to consider our Sifter Confidential Information: Marked Confidential. That got me thinking we were telling only part of a story. Marking information as confidential is just one way information that otherwise would not be considered confidential can be made confidential. Two other standard ways of accomplishing that are by identifying information as confidential (for example in a list the discloser sends to the recipient) and by saying in the contract that information will be confidential if a reasonable person would consider it confidential. Since those three elements go together, I figured it’s worth targeting each with Sifters.

And yes, we’re on our way to having 35 confidentiality Sifters. Isn’t that excessive? No, I don’t think it is. Our Sifters don’t create reality, they reflect it. If anything is addressed with any frequency in a contract we target, it’s appropriate that we cover it with a Sifter. After all, contracts shouldn’t contain fluff—if something is in a contract, it’s because someone, rightly or wrongly, thought it adds something worthwhile. It’s appropriate that we tell users what we think.

But the sheer number of Sifters that currently address a given category of issues—12 for force majeure, 22 for indemnification, and so on—will affect what options we offer users. I’m acutely aware that not everyone shares my completist zeal. I expect at some point we’ll offer both stripped-down coverage and comprehensive coverage, leaving it to users to decide which they want (and which they want to pay for). And we’ll also offer users the option of picking and choosing for themselves which Sifters they’re interested in rather than relying on us to decide for them.

Now if you’ll excuse me, I have to get back to the Sifter production line …