First land mine:  WHAT is the proprietary/confidential info?  You should
require sponsor to identify all material they transmit that is
proprietary/confidential.

Second land mine:  Opportunity to notify sponsor.  This is more an internal
procedural problem, but who will receive the governmental or judicial order
and act on it, and will that agent know of the requirement to notify your
sponsor, and will there be the time to notify the sponsor, and to give
assistance, etc.?

On the whole, a better clause than many, but written with a commercial
organization's structure/control system in mind rather than a
university's.  And if you are state agency subject to state FOI act, how
does that impact?  (Solution there is to have a clause requiring following
all state laws, so if the state FOI law does not give time, you are
protected.)  The safe harbor language is nice, although "reasonable" aid
and assistance could be argued.

However, I have accepted such clauses with only slight trepidation BECAUSE
of close relations with U's General Counsel AND requirement internally that
all such governmental or judicial orders come to GC for attention.  Only
hooker there is that GC will not know/realize that the request is related
to a sponsored program.

Good luck!

Chuck

At 11:38 AM 10/15/2002 -0500, you wrote:
>We often see clauses restricting release of the sponsor's confidential info
>and often there is an "out" if a governmental regulation or judicial order
>requires disclosure.  However, the following clause is a first for me and I
>am not completely certain where the sticking point is but my gut tells me
>there is one.
>
>"Release of Proprietary Information:  In the event any governmental or
>judicial order requires the disclosure of Proprietary Information, the
>recipient of such Proprietary Information shall promptly but in any event
>prior to such disclosure notify the originator of the Proprietary
>Information of the requirement and provide reasonable aid and assistance if
>the originator decides to oppose such governmental or judicial order.  The
>recipient shall not be responsible for any disclosure of Proprietary
>Information made pursuant to such governmental or judicial order if it has
>complied with the provisions of this paragraph."
>
>My legal advisor is out for several weeks and I need some advice.
>
>To me, this suggests that we could end up in court if the sponsor opposes a
>judicial order to release info.  Also, it suggests that they are attempting
>to keep us harmless if we do so in accordance with the paragraph.  I have a
>few concerns because we are a state instrumentality and because I am just
>not sure what the implications would be if we agreed to do this.  Also, it
>might help you to know that they have some information they may give us
>that could constitute a trade secret.  Although it is still not clear that
>it is a trade secret, the language in the earlier parts of this clause says
>some things must be maintained in confidence for a specified time period (I
>think about 3 years) and this supposed trade secret stuff has to remain in
>confidence forever.  I wonder if this is the reasoning behind the
>disclosure text in the clause above.  Any advice about what land mine we
>might be stepping on would be helpful.
>
>
>thanks.
>
>
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Herbert B. Chermside, CRA
Director, Sponsored Programs Administration
Virginia Commonwealth University
PO BOX 980568
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December 21, 2002 through January 5, 2003.

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