Everyone knows what an NDA is at a high level, a contract preventing one party from disclosing information deemed confidential by the other party. However, I am interested in how to write an NDA from scratch DIY without a lawyer, and am having a hard time finding any examples online that seem respectable.

If one would like to share information with another party (either an employee of another company or just a friend or acquaintance), I am confused as to what exactly would count as a valid NDA.

From what I've seen, many of the example NDAs say something along the lines of "...confidential information will be shared orally, and followed up in 30 days in written form so as to be valid." I was initially under the impression that just having the NDA say everything was purely communicated orally -- with nothing in writing -- would be sufficient. But maybe perhaps writing down what is confidential that was talked about somehow makes it better.

Also, I don't see how you can write it down efficiently enough, so as to avoid essentially creating a detailed patent document lol. If you describe orally something for an hour, that could be the outline of a patent in principle, so it would seem that you would then need to "follow up with them in 30 days or less with a written form of the confidential information". This to me seems (a) hard and time consuming, and (b) a security leak. At the same time it would help clarify exactly what was talked about, that's for sure.

So my question is, what the key attributes are of an effective (software related) one-sided NDA.

It seems to me that you could simply have a generic NDA for all of potential software ideas, saying basically "Anything I share with you related to any legally allowable business activity or idea is confidential" and that's it, not needing to list anything in particular. Once you start saying you need to list particular things, I don't see how you can avoid going down the rabbit hole and writing a detailed patent-like document.

Also I'm wondering what sorts of edge cases you must cover. Or, in general, if a legal document must cover every possible edge case, or can somehow just cover the main ones and leave the rest as assumed somehow. For example, some NDAs say something to the effect of "You are free to reveal the confidential information to authorities if it comes down to it" or "You may disclose information to whomever if you first get written permission from me." I don't see why it's necessary to say this stuff. There's so much you could potentially say, I don't see why you can just leave this out. If it turns out that the situation comes up where they would like to disclose something in the future to someone, then they could ask you and you could come up with an amendment to the contract, or another contract specific to that. It seems better that way, rather than trying to cover every edge case, but I'm not sure what is the best approach.

  • I think the answer is "don't". There is an excellent chance that your NDA is worthless because it has loop holes, or because it is so excessive that it would be thrown out of court, or just not signed. – gnasher729 Dec 28 '18 at 22:52
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    The reason NDAs have a requirement that confidential information be identified in writing is so that it clear what is considered confidential so the NDA is not overly broad. This doesn't mean you have to write down every word you say. It is often done as a summary bullet - "sorting algorithm associated with processing customer records," as an example. You can then explain the sorting algorithm in a meeting, when describing the algorithm you identify it as confidential and protected under the NDA and you identify later in writing that the discussed sorting algorithm is confidential. – Dave D Dec 29 '18 at 0:07
  • I would not have a DIY NDA agreement. I was in the software business for decades and would never sign one, as an individual or as a representative of a company, without having my attorneys review it - both the terms and the items considered confidential. Some Silicon Valley firms actually have the confidentially agreement tied to their visitor's log so that when entering a facility you're required to sign an overly broad NDA. I've met with people in a parking lot so as to avoid signing those agreements. It's very easy to create an unenforceable NDA. – Dave D Dec 29 '18 at 0:12
  • I am confused as to what exactly would count as a valid NDA This statement shows lack of research before asking this question. Elements of a valid NDA and specifics of software engineering NDA are separate concerns. Asking them all together makes the question too broad and messy, so I downvote to encourage you to rework it. – Greendrake Dec 29 '18 at 0:18
  • @DaveD thank you you might as well add that as the answer, that was helpful. One more point. You can identify some topics/algorithms in advance to a verbal meeting, and write them down and have it signed before. But I'm wondering if after they've signed the NDA you add a few more things here and there, what to do. Capture it in writing, and have them sign again perhaps, or I'm not sure the workflow here. Perhaps even you say something before capturing it in writing, or maybe this should always be avoided. – Lance Pollard Dec 29 '18 at 6:20

It is not that easy. There is no such thing as an all-encompassing perfect contract, nor are there magical words. In fact, many contracts contain uses language such as the one you found (example: the "freedom" to reveal confidential information to authorities "if it comes down to it") or are in violation of legislation.

The protocol you saw as to oral disclosure and its 30-day follow up really helps no purpose. It is unclear why that contract would outline that rule or how it would protect trade secrets.

Instead, you should read court opinions and try various search keywords to get an idea of how NDA controversies are decided. Ultimately, you want your NDA to prevail in a judicial review.

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