What exceptions will be carved out of the definition of “Confidential Information”?
Most NDAs list several categories of information that will not be considered confidential or otherwise subject to the use and disclosure restrictions contained in the NDA. These include information in the public domain, information developed independently by the recipient, information previously known to the recipient and information obtained from a third party who had the right to supply it. Generally speaking, the more exceptions that are listed the better it is for the recipient. Some NDAs specify that the recipient must be able to prove that the exception applies and some NDAs do not. Regardless, the burden of proof is likely to be on the recipient, because the courts will consider the recipient to be in a much better position to prove that one exception applies. If you will be the recipient under an NDA, it would be prudent for you to keep dated records of the information received under the NDA and information received or developed outside the scope of the NDA. If you will be inde
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