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/triage-nda -- NDA Pre-Screening

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Triage the NDA: @$1

Rapidly triage incoming NDAs against standard screening criteria. Classify the NDA for routing: standard approval, counsel review, or full legal review.

Important : You assist with legal workflows but do not provide legal advice. All analysis should be reviewed by qualified legal professionals before being relied upon.

Invocation

/triage-nda

Workflow

Step 1: Accept the NDA

Accept the NDA in any format:

• File upload : PDF, DOCX, or other document format
• URL : Link to the NDA in a document system
• Pasted text : NDA text pasted directly

If no NDA is provided, prompt the user to supply one.

Step 2: Load NDA Playbook

Look for NDA screening criteria in local settings (e.g., legal.local.md).

The NDA playbook should define:

• Mutual vs. unilateral requirements
• Acceptable term lengths
• Required carveouts
• Prohibited provisions
• Organization-specific requirements

If no NDA playbook is configured:

• Proceed with reasonable market-standard defaults
• Note clearly that defaults are being used
• Defaults applied:
  • Mutual obligations required (unless the organization is only disclosing)
  • Term: 2-3 years standard, up to 5 years for trade secrets
  • Standard carveouts required: independently developed, publicly available, rightfully received from third party, required by law
  • No non-solicitation or non-compete provisions
  • No residuals clause (or narrowly scoped if present)
  • Governing law in a reasonable commercial jurisdiction

Step 3: Quick Screen

Evaluate the NDA against each screening criterion systematically.

1. Agreement Structure

• Type identified : Mutual NDA, Unilateral (disclosing party), or Unilateral (receiving party)
• Appropriate for context : Is the NDA type appropriate for the business relationship? (e.g., mutual for exploratory discussions, unilateral for one-way disclosures)
• Standalone agreement : Confirm the NDA is a standalone agreement, not a confidentiality section embedded in a larger commercial agreement

2. Definition of Confidential Information

• Reasonable scope : Not overbroad (avoid "all information of any kind whether or not marked as confidential")
• Marking requirements : If marking is required, is it workable? (Written marking within 30 days of oral disclosure is standard)
• Exclusions present : Standard exclusions defined (see Standard Carveouts below)
• No problematic inclusions : Does not define publicly available information or independently developed materials as confidential

3. Obligations of Receiving Party

• Standard of care : Reasonable care or at least the same care as for own confidential information
• Use restriction : Limited to the stated purpose
• Disclosure restriction : Limited to those with need to know who are bound by similar obligations
• No onerous obligations : No requirements that are impractical (e.g., encrypting all communications, maintaining physical logs)

4. Standard Carveouts

All of the following carveouts should be present:

• Public knowledge : Information that is or becomes publicly available through no fault of the receiving party
• Prior possession : Information already known to the receiving party before disclosure
• Independent development : Information independently developed without use of or reference to confidential information
• Third-party receipt : Information rightfully received from a third party without restriction
• Legal compulsion : Right to disclose when required by law, regulation, or legal process (with notice to the disclosing party where legally permitted)

5. Permitted Disclosures

• Employees : Can share with employees who need to know
• Contractors/advisors : Can share with contractors, advisors, and professional consultants under similar confidentiality obligations
• Affiliates : Can share with affiliates (if needed for the business purpose)
• Legal/regulatory : Can disclose as required by law or regulation

6. Term and Duration

• Agreement term : Reasonable period for the business relationship (1-3 years is standard)
• Confidentiality survival : Obligations survive for a reasonable period after termination (2-5 years is standard; trade secrets may be longer)
• Not perpetual : Avoid indefinite or perpetual confidentiality obligations (exception: trade secrets, which may warrant longer protection)

7. Return and Destruction

• Obligation triggered : On termination or upon request
• Reasonable scope : Return or destroy confidential information and all copies
• Retention exception : Allows retention of copies required by law, regulation, or internal compliance/backup policies
• Certification : Certification of destruction is reasonable; sworn affidavit is onerous

8. Remedies

• Injunctive relief : Acknowledgment that breach may cause irreparable harm and equitable relief may be appropriate is standard
• No pre-determined damages : Avoid liquidated damages clauses in NDAs
• Not one-sided : Remedies provisions apply equally to both parties (in mutual NDAs)

9. Problematic Provisions to Flag

• No non-solicitation : NDA should not contain employee non-solicitation provisions
• No non-compete : NDA should not contain non-compete provisions
• No exclusivity : NDA should not restrict either party from entering similar discussions with others
• No standstill : NDA should not contain standstill or similar restrictive provisions (unless M&A context)
• No residuals clause (or narrowly scoped): If a residuals clause is present, it should be limited to information retained in unaided memory of individuals and should not apply to trade secrets or patented information
• No IP assignment or license : NDA should not grant any intellectual property rights
• No audit rights : Unusual in standard NDAs

10. Governing Law and Jurisdiction

• Reasonable jurisdiction : A well-established commercial jurisdiction
• Consistent : Governing law and jurisdiction should be in the same or related jurisdictions
• No mandatory arbitration (in standard NDAs): Litigation is generally preferred for NDA disputes

Step 4: Classify

Based on the screening results, assign a classification:

GREEN -- Standard Approval

All of the following must be true:

• NDA is mutual (or unilateral in the appropriate direction)
• All standard carveouts are present
• Term is within standard range (1-3 years, survival 2-5 years)
• No non-solicitation, non-compete, or exclusivity provisions
• No residuals clause, or residuals clause is narrowly scoped
• Reasonable governing law jurisdiction
• Standard remedies (no liquidated damages)
• Permitted disclosures include employees, contractors, and advisors
• Return/destruction provisions include retention exception for legal/compliance
• Definition of confidential information is reasonably scoped

Routing : Approve via standard delegation of authority. No counsel review required.

• Action : Proceed to signature with standard delegation of authority

YELLOW -- Counsel Review Needed

One or more of the following are present, but the NDA is not fundamentally problematic:

• Definition of confidential information is broader than preferred but not unreasonable
• Term is longer than standard but within market range (e.g., 5 years for agreement term, 7 years for survival)
• Missing one standard carveout that could be added without difficulty
• Residuals clause present but narrowly scoped to unaided memory
• Governing law in an acceptable but non-preferred jurisdiction
• Minor asymmetry in a mutual NDA (e.g., one party has slightly broader permitted disclosures)
• Marking requirements present but workable
• Return/destruction lacks explicit retention exception (likely implied but should be added)
• Unusual but non-harmful provisions (e.g., obligation to notify of potential breach)

Routing : Flag specific issues for counsel review. Counsel can likely resolve with minor redlines in a single review pass.

• Action : Counsel can likely resolve in a single review pass

RED -- Significant Issues

One or more of the following are present:

• Unilateral when mutual is required (or wrong direction for the relationship)
• Missing critical carveouts (especially independent development or legal compulsion)
• Non-solicitation or non-compete provisions embedded in the NDA
• Exclusivity or standstill provisions without appropriate business context
• Unreasonable term (10+ years, or perpetual without trade secret justification)
• Overbroad definition that could capture public information or independently developed materials
• Broad residuals clause that effectively creates a license to use confidential information
• IP assignment or license grant hidden in the NDA
• Liquidated damages or penalty provisions
• Audit rights without reasonable scope or notice requirements
• Highly unfavorable jurisdiction with mandatory arbitration
• The document is not actually an NDA (contains substantive commercial terms, exclusivity, or other obligations beyond confidentiality)

Routing : Full legal review required. Do not sign. Requires negotiation, counterproposal with the organization's standard form NDA, or rejection.

• Action : Do not sign; requires negotiation or counterproposal

Step 5: Generate Triage Report

Output a structured report:

## NDA Triage Report

**Classification**: [GREEN / YELLOW / RED]
**Parties**: [party names]
**Type**: [Mutual / Unilateral (disclosing) / Unilateral (receiving)]
**Term**: [duration]
**Governing Law**: [jurisdiction]
**Review Basis**: [Playbook / Default Standards]

## Screening Results

| Criterion | Status | Notes |
|-----------|--------|-------|
| Mutual Obligations | [PASS/FLAG/FAIL] | [details] |
| Definition Scope | [PASS/FLAG/FAIL] | [details] |
| Term | [PASS/FLAG/FAIL] | [details] |
| Standard Carveouts | [PASS/FLAG/FAIL] | [details] |
| [etc.] | | |

## Issues Found

### [Issue 1 -- YELLOW/RED]
**What**: [description]
**Risk**: [what could go wrong]
**Suggested Fix**: [specific language or approach]

[Repeat for each issue]

## Recommendation

[Specific next step: approve, send for review with specific notes, or reject/counter]

## Next Steps

1. [Action item 1]
2. [Action item 2]

Step 6: Routing Suggestion

Based on the classification, recommend the appropriate next step:

For YELLOW and RED classifications:

• Identify the specific person or role that should review (if the organization has defined routing rules)
• Include a brief summary of issues suitable for the reviewer to quickly understand the key points
• If the organization has a standard form NDA, recommend sending it as a counterproposal for RED-classified NDAs

Common NDA Issues and Standard Positions

Issue: Overbroad Definition of Confidential Information

Standard position : Confidential information should be limited to non-public information disclosed in connection with the stated purpose, with clear exclusions. Redline approach : Narrow the definition to information that is marked or identified as confidential, or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.

Issue: Missing Independent Development Carveout

Standard position : Must include a carveout for information independently developed without reference to or use of the disclosing party's confidential information. Risk if missing : Could create claims that internally-developed products or features were derived from the counterparty's confidential information. Redline approach : Add standard independent development carveout.

Issue: Non-Solicitation of Employees

Standard position : Non-solicitation provisions do not belong in NDAs. They are appropriate in employment agreements, M&A agreements, or specific commercial agreements. Redline approach : Delete the provision entirely. If the counterparty insists, limit to targeted solicitation (not general recruitment) and set a short term (12 months).

Issue: Broad Residuals Clause

Standard position : Resist residuals clauses. If required, limit to: (a) general ideas, concepts, know-how, or techniques retained in the unaided memory of individuals who had authorized access; (b) explicitly exclude trade secrets and patentable information; (c) does not grant any IP license. Risk if too broad : Effectively grants a license to use the disclosing party's confidential information for any purpose.

Issue: Perpetual Confidentiality Obligation

Standard position : 2-5 years from disclosure or termination, whichever is later. Trade secrets may warrant protection for as long as they remain trade secrets. Redline approach : Replace perpetual obligation with a defined term. Offer a trade secret carveout for longer protection of qualifying information.

Notes

• If the document is not actually an NDA (e.g., it's labeled as an NDA but contains substantive commercial terms), flag this immediately as a RED and recommend full contract review instead
• For NDAs that are part of a larger agreement (e.g., confidentiality section in an MSA), note that the broader agreement context may affect the analysis
• Always note that this is a screening tool and counsel should review any items the user is uncertain about

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