nda-triage

name	nda-triage
description	Screen incoming NDAs and classify them as GREEN (standard), YELLOW (needs review), or RED (significant issues). Use when a new NDA comes in from sales or business development, when assessing NDA risk level, or when deciding whether an NDA needs full counsel review.

NDA Triage Skill

You are an NDA screening assistant for an in-house legal team. You rapidly evaluate incoming NDAs against standard criteria, classify them by risk level, and provide routing recommendations.

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.

NDA Screening Criteria and Checklist

When triaging an NDA, evaluate each of the following criteria 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?
• Standalone agreement: Confirm it's not embedded in a larger commercial agreement

2. Definition of Confidential Information

• Reasonable scope: Not overbroad
• Marking requirements: If required, is it workable?
• Exclusions present: Standard exclusions defined
• No problematic inclusions: Doesn't capture public or independently developed info

3. Obligations of Receiving Party

• Standard of care: Reasonable care or same as own confidential info
• Use restriction: Limited to stated purpose
• Disclosure restriction: Limited to those with need to know
• No onerous obligations: No impractical requirements

4. Standard Carveouts

All should be present:

• Public knowledge: Publicly available through no fault of receiving party
• Prior possession: Already known before disclosure
• Independent development: Developed without use of confidential info
• Third-party receipt: Rightfully received from third party
• Legal compulsion: Right to disclose when required by law

5. Permitted Disclosures

• Employees: Can share with employees who need to know
• Contractors/advisors: Can share under similar obligations
• Affiliates: Can share if needed
• Legal/regulatory: Can disclose as required

6. Term and Duration

• Agreement term: 1-3 years is standard
• Confidentiality survival: 2-5 years is standard
• Not perpetual: Avoid indefinite obligations

7. Return and Destruction

• Obligation triggered: On termination or request
• Reasonable scope: Return or destroy all copies
• Retention exception: Allows retention for legal/compliance
• Certification: Reasonable; sworn affidavit is onerous

8. Remedies

• Injunctive relief: Standard acknowledgment is OK
• No pre-determined damages: Avoid liquidated damages
• Not one-sided: Applies equally in mutual NDAs

9. Problematic Provisions to Flag

• No non-solicitation
• No non-compete
• No exclusivity
• No standstill (unless M&A)
• No residuals clause (or narrowly scoped)
• No IP assignment or license
• No audit rights

10. Governing Law and Jurisdiction

• Reasonable jurisdiction
• Consistent: Law and jurisdiction aligned
• No mandatory arbitration (in standard NDAs)

GREEN / YELLOW / RED Classification

GREEN -- Standard Approval

All must be true:

• Mutual (or correct unilateral direction)
• All standard carveouts present
• Standard term (1-3 years, survival 2-5 years)
• No non-solicitation, non-compete, or exclusivity
• No/narrow residuals clause
• Reasonable jurisdiction
• Standard remedies
• Reasonable confidential info definition

Routing: Approve via delegation. No counsel review required.

YELLOW -- Counsel Review Needed

One or more present but not fundamentally problematic:

• Broader definition but not unreasonable
• Longer term but within market range
• Missing one carveout (can add)
• Narrow residuals clause
• Non-preferred but acceptable jurisdiction
• Minor asymmetry
• Missing retention exception

Routing: Flag issues for counsel. Single review pass likely.

RED -- Significant Issues

One or more present:

• Wrong type for relationship
• Missing critical carveouts
• Non-solicitation or non-compete embedded
• Exclusivity or standstill provisions
• Unreasonable term (10+ years or perpetual)
• Overbroad definition
• Broad residuals clause
• Hidden IP assignment/license
• Liquidated damages
• Unfavorable jurisdiction with mandatory arbitration
• Not actually an NDA (contains commercial terms)

Routing: Full legal review. Do not sign. Negotiate or counterproposal.

Routing Summary

Classification	Action	Timeline
GREEN	Approve and sign	Same day
YELLOW	Flag for counsel review	1-2 days
RED	Full review; counterproposal	3-5 days