The Humble NDA. Everything you need to know about how your Legal team operates can be told through your experience with NDAs. This simple yet incredibly valuable document is often the first legally binding document that two parties will exchange. It will often be the point at which your Legal team are involved in a matter. Suppose the document becomes negotiated (heaven help you), you may get to speak with the other side's legal team for the first time as well. Experience their approach to working, their risk appetites and their negotiation idiosyncrasies.
Practical considerations such as who are the correct contracting parties, who has authority to sign the document and even what are the parties doing for each other are flushed out by the production of this innocent looking document.
The symbolism of an NDA
But could the days of negotiating NDAs be numbered. The One NDA Club (https://onenda.club/) has been founded with the mission to create a universally standardised NDA. One NDA believes that standardising an NDA's contents and producing a pre-agreed set of wording which is then deviated from by exception will reduce legal work, increase transparency, and speed up business dealings.
The motivations here are noble. However, is there a risk that removing the NDA (and the associated conversations that go with getting one in place) means that all the issues previously flushed out by NDA conversations are now encountered in more complex, more strategic, higher value, riskier stages? Getting something wrong on an NDA rarely results in significant negative consequences (how many times have you ever heard of anyone bringing an action under an NDA alone?). Anyone who has ever been involved in trying to enforce one will tell you that their real value has always been in their symbolism. However, fast forward through the NDA stage, and all of the practical issues get played out in the context of more important matters.
New role to play?
Perhaps though, the NDA has another role to play. Anyone currently in conversations with any form of legal tech vendor should 'stress test' the offering by seeing how it copes with all the issues currently thrown up by requesting, completing, signing, filing and retrieving a humble NDA.
Lawyers reluctance to let go of the pen on NDAs may also be symptomatic of their reluctance to embrace alternative ways of working (significantly ways of working that cede human interaction to standardisation and automation). For example, if you are not going to trust a standardised NDA, produced and signed electronically by non-lawyers, how are you ever going to get on board with AI reviewing your indemnity clauses or an RPA tool routing your auto-renewal notices (regardless of how much you profess to be a Legal Tech advocate)? Once again, the value of the NDA reveals itself.
Propose an NDA solution that utilises automation and standardised language, removes lawyer involvement, and see if your in-house counsel runs for the hills. If they stay, then perhaps you can set up that second meeting with the legal tech vendor.
if you are not going to trust a standardised NDA, produced and signed electronically by non-lawyers how are you ever going to get on board with AI reviewing your indemnity clauses or an RPA tool routing your auto-renewal notices (regardless of how much you profess to be a Legal Tech advocate)