Martha:

Occasionally we have agreed to notify the provider of confidential
information if a judicial order may require the disclosure of confidential
information.  However, we have never agreed to provide "reasonable aid and
assistance" in opposition (and I have never been asked to as far as I can
remember).  As you mentioned, this is very open ended and subjective.  A
recipient could potentially incur a great deal of cost in providing this
"aid."  We would take the position that notice is sufficient for the
provider to take whatever legal action they deem appropriate in opposition
to disclosure (and there are all sorts of legal proceedings available to
them should they need to compel the recipient to do something).

A compromise would be to include language covering out of pocket costs
incurred in providing  any "aid and assistance."  However, the potentially
significant downside is that you could get entangled in a lengthy legal
proceeding that you may not want to be a party to.  It could involve
unpopular subjects that a university doesn't want to be associated with
(e.g. public health/safety issues).

Regarding trade secrets, I can understand why a company would be more
conservative in their approach but I don't think the issue of the recipient
agreeing to provide "aid" should be crucial.  What would be important would
be the degree of care required by the agreement in handling the trade
secret information.  For instance, the company may want you to use your
"best efforts" instead of more typical "reasonable efforts" in securing the
information.  The university would be subject to a greater legal burden of
care and you would want to be very comfortable that your PI's handle
information safely (then return/destroy it when the collaboration is
over).  Also, if your state has an open records law that could be an issue.

Jeff Myers
Southern Illinois University

At 11:38 AM 10/15/02 -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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