Confidential Information Primer

Although the term "Confidential Information" is not one that is succinctly defined for legal purposes, it is generally understood to include any information that a company or individual creates, discovers or acquires that is held in confidence and the improper disclosure of which would be harmful to the owner. A variety of different kinds of information may constitute Confidential Information, such as software programs, business plans, marketing plans, financial statements, trade secrets, customer lists, formulas and product models. When in doubt, assume that your information is confidential and can be protected.

Certain steps are advisable to insure that the confidentially of this information is maintained. The owner of Confidential Information must, within its organization, treat the information as confidential. This includes such things as marking or otherwise identifying such information as "Confidential", "Sensitive" or "Proprietary", securing it from inadvertent disclosure, and implementing written policies and procedures for employees with respect to its handling and care.

It may become necessary or practical for the owner of the Confidential Information to share it with another party. For example, the owner may be considering a joint venture or other arrangement with someone else that desires to receive and evaluate the Confidential Information before formalizing that arrangement. To insure that the information is not improperly disclosed by the party receiving it, the owner should enter into an appropriate non-disclosure (i.e. confidentiality) agreement prior to disclosure.

Also, in many industries and businesses, it is customary that certain key employees, such as sales executives, enter into a non-competition agreement. In addition to other provisions of these agreements, they customarily contain promises by the employee that he or she will not, after employment, disclose any of the Confidential Information of his or her former employer.

It is never sufficient to simply mark Confidential Information and assume that it is protected for all purposes. In the event that an owner of Confidential Information seeking redress for improper disclosure or attempting to restrain such disclosure, the foregoing practices will assist in convincing the court that the information is normally maintained in privacy and that disclosure is inappropriate.