Be careful in drafting your NDA while negotiations are ongoing, if you want it to also cover information exchanged after those negotiations end

Among other disputes in this recent case out of Idaho, Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., Docket No. 45580, is a dispute over whether or not a nondisclosure agreement between the parties was violated. There was no dispute that the information in question was confidential. The only dispute was whether it was covered by the NDA. The court ruled that it was not, because the NDA had been drafted while the parties were in the process of negotiating their business relationship with each other. For that reason, it covered information disclosed “in connection with a proposed business relationship,” and that the information was only to be used for “discussions relating to a possible vendor relationship.” Once the parties had finished negotiating their relationship, it was no longer “proposed” or “possible”; it was fact. Therefore, there needed to be another NDA to cover information exchanged during the fact of the business relationship (of which the information in dispute was some).