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I am a lifelong academic. Recently I requested a job interview at a tech company doing commercialization of some of the research in my field, and they sent me an NDA to sign (we're in the US).

From what I've read, this NDA is reasonable. It specifies that it applies only to information I learn during the interview and didn't already have access to. It doesn't try to prevent me from working with competitors in general. My concern is that if I take a job or do a collaboration with a competitor, this company could ask us to prove that I didn't share anything, even in the absence of specific evidence that I did. Or that they could demand written documentation of when and how I came up with every idea I publish subsequent to the interview. Even if that would ultimately be unenforceable, it could tie us up and keep us from getting funded.

I understand that this isn't the intent of an NDA or the way they're typically used, and I don't have any particular concerns about this company in specific. I'm just wondering whether they're open to this kind of abuse. Or is it widely accepted that requests like the ones I described are so totally illegitimate that a company couldn't try it even as a chilling tactic?

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  • They can demand anything they like, but you don't have to provide anything they ask you to provide. And there is nothing stopping you from publicising such a demand, which would show them up as a bunch of nasty fools.
    – gnasher729
    Sep 27, 2014 at 21:03
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    I think you should take this up with a lawyer rather than with random people on the internet...
    – Jenny D
    Sep 28, 2014 at 6:17
  • A good point to bring up with your lawyer is burden of proof. It would be nearly impossible to prove that some information came from you, so if proof is legally their responsibility then the tactics you describe are very risky expensive business.
    – Myles
    Sep 29, 2014 at 17:06

2 Answers 2

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The abuse you seem to be worried about isn't really abuse of an NDA, and doesn't require a NDA be sign -- what you are describing is "I can waste more money on lawyers than you", aka nuisance lawsuits.

So, yes, hypothetically a NDA could be abused in the way you describe, but if a comapny is set on that tactic, not having signed a NDA would hardly slow them down. Instead of the violating the NDA for instance in many places they could sue you for theft of trade secrets. If they want to do this, they will make up something.

Research the company before dealing with them -- see what kind of reputation they have. I would presume that something like this would make the news and if not and you are really worried about it, check with the courts -- I'm pretty sure such suits would be public.

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An NDA of this sort is pretty much standard for technical and executive jobs once you reach the second round of interviews.

If they want to ask you some contextual questions about how you'd handle a problem they are having or have had in their product or business processes, they don't want you going out to the world and saying "Company XYZ can't even get their widgets to kerfuffle properly."

No competently-run company is going to give you extremely sensitive information during an interview process. "Pipe Dreamers" with startup ideas do this often, though, thinking their idea is the most valuable thing in the world. (BTW: A good idea written down on a piece of paper is worth half the value of the piece of paper, as you can still write on the back side. Implementation and marketing/market share are what make ideas worth something.)

You don't specify where you are from, but in most Western countries, the burden of proof on an NDA violation is on the claimant, meaning they will have to document that they shared the information with you in their direct communications with you, and that you actively used that information elsewhere or specifically disclosed it to someone else.

And finally, as far as "tieing up" another venture: Lawyers love to send letters. They mean absolutely nothing. Until something is filed in court, you don't have to do anything. Then, unless it's signed at the bottom by a name preceded by "The Honorable," it only means you have to answer it.

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  • Thanks, this is helpful. I'm aware that what I described isn't the proper, intended, or usual use of NDAs, but I was wondering whether they're open to that kind of abuse.
    – octern
    Sep 27, 2014 at 16:29
  • Edited to add that I'm from the US, which is probably true of most people who think they can blithely ask questions on international sites and not say where they're from :P
    – octern
    Sep 27, 2014 at 16:30
  • I accepted jmoreno's answer because it seems more definitive with respect to my specific question: signing a (properly crafted) NDA doesn't increase the chances of this scenario because if a company intends to bring a nuisance lawsuit, they can do so whether or not I sign. However, I did upvote your answer and I think it's the more broadly informative of the two.
    – octern
    Sep 28, 2014 at 22:54
  • @octern - Don't sweat it. I see you're new, here, but it's no big deal. We all put the best answer out that we can. If someone has a better answer than I, fantastic. If I were the best source of information on this site, then we'd all be in a lot of trouble. :) Sep 29, 2014 at 0:28

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