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Subpoenas, SEC filings, and confidential information

Disclosure in response to subpoenas, etc.

Some confidentiality provisions make the mistake of categorically excluding subpoenaed information from the definition of “protected information.” That’s often ill-advised, because it might well entirely wipe out the confidentiality status of disclosed information. Often that would be too bad, because the subpoena might contain (or be modified to contain) court-ordered provisions to protect confidentiality.

A better approach is simply to require the receiving party to alert the disclosing party to any such event and to provide reasonable cooperation if the disclosing party elects to try to quash the subpoena, seek a protective order, etc.

(Realistically, that’s usually what the disclosing party would most want in such a situation anyway.)

Some clauses of this type specify that the receiving party’s cooperation in the disclosing party’s attempts to seek protection from a subpoena will be at the disclosing party’s expense. That will often be appropriate (and perhaps usually so), but it seems unnecessary to lock the parties into this requirement in advance.

Disclosures in SEC filings, etc.

A party receiving confidential information might want the explicit right to disclose some or all of the information if it believes it’s required to disclose the information in SEC filings (for example). It might argue for that right as follows:

We’re a publicly-traded company; if things go well with our business relationship, this Agreement might turn out to be a ‘material agreement’ for us. If that were to happen, we might be required by law, or by Nasdaq- or NYSE rules, to file your confidential information with the SEC or some other authority. (We might even have to file a copy of the Agreement itself with the SEC.)

It wouldn’t do either of us any good for us to be in violation. So as long as we give you as much advance notice as practicable, and work with you to try to get the SEC to keep the information confidential, that should give both of us as much protection as we can reasonably expect.

In a given case, the parties might negotiate a more-detailed clause along these lines, perhaps specifying particular information that cannot be filed with regulatory authorities without the disclosing party’s consent.

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