The recent ACC Docket has an article entitled Fencing the Herd about confidentiality agreements.  It generally has some good advice.  But then it says the following:

“As a first line of defense in protecting your company’s confidential information, you must first identify what information is confidential and/or proprietary.” OK, we’ll get this done tomorrow.  This is almost impossible to do. Think of all the hundreds of thousands of documents a typical large company produces. Plus for every document you review, there will be four or five new ones created.

Then the article says, “identify the population of employees, independent contractors and/or vendors who have access to the information …” OK, we’ll get this done right away. Do you interview every employee? Do you review their job descriptions which typically are out of synch with what employees really do.  Do you look at every contract you have with independent contractors?

But there’s more, “identify what steps will be required to support the claim that the information deserves confidential treatment.” Huh? Then the authors say, “once this is done” as if it’s so easy to do, you can generate standard agreements for each population and a process for obtaining executed agreements from each. Yes, this is so easy to do.

This is the type of advice that gives lawyers a bad name. This is unreasonable and over-lawyering. There are easier ways of protecting confidential information.