/triage-nda -- NDA Pre-Screening

If you see unfamiliar placeholders or need to check which tools are connected, see CONNECTORS.md.

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

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:

Classification Recommended Action Typical Timeline

GREEN Approve and route for signature per delegation of authority Same day

YELLOW Send to designated reviewer with specific issues flagged 1-2 business days

RED Engage counsel for full review; prepare counterproposal or standard form 3-5 business days

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