Remember: the purpose of a Non-Disclosure Agreement (NDA) is to protect against the disclosure of your private and proprietary information.Thanks to the limitations of science, we can’t go back in time and undo a leak of trade secrets or confidential information.However, it is important not to let your guard down at this point.
When we say “backdating” what we usually mean is executing a document and then dating it with an earlier date than the actual date of execution, with the intention that it should be treated as giving rise to legal rights before the actual date.
However, at common law this was a criminal offence (going by the contradictory sounding name of uttering a false document) and in most English law based legal systems it is still an offence today, although in many cases statutory provisions have superseded the common law (for example, in the British Virgin Islands see section 242 of the Criminal Code 1997).
We can’t prevent something that’s already happened. First, be aware that asking a party to sign a NDA with a retroactive date is considered “bush league” to some in the legal world and may not be taken lightly by the party on the other end.
There are ways, however, to ensure that past disclosures remain confidential and then preserve that confidentiality moving forward. While adding a retroactive date to a legal agreement is not uncommon, you need to make sure you don’t come out of left field with a retroactive NDA in your hand after weeks of cooperative negotiations, conversations or partnerships.
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