triage-nda

SKILL.md

/triage-nda -- NDA Pre-Screening

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Triage the NDA: @$1

Rapidly triage incoming NDAs against standard screening criteria. Classify the NDA for routing: standard approval, counsel review, or full legal review.

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.

Invocation

/triage-nda

Workflow

Step 1: Accept the NDA
Accept the NDA in any format:

File upload: PDF, DOCX, or other document format

URL: Link to the NDA in a document system

Pasted text: NDA text pasted directly

If no NDA is provided, prompt the user to supply one.

Step 2: Load NDA Playbook

Look for NDA screening criteria in local settings (e.g., legal.local.md).

The NDA playbook should define:

Mutual vs. unilateral requirements

Acceptable term lengths

Required carveouts

Prohibited provisions

Organization-specific requirements

If no NDA playbook is configured:

Proceed with reasonable market-standard defaults

Note clearly that defaults are being used

Defaults applied:

Mutual obligations required (unless the organization is only disclosing)

Term: 2-3 years standard, up to 5 years for trade secrets

Standard carveouts required: independently developed, publicly available, rightfully received from third party, required by law

No non-solicitation or non-compete provisions

No residuals clause (or narrowly scoped if present)

Governing law in a reasonable commercial jurisdiction

Step 3: Quick Screen

Evaluate the NDA against each screening criterion 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? (e.g., mutual for exploratory discussions, unilateral for one-way disclosures)

 Standalone agreement: Confirm the NDA is a standalone agreement, not a confidentiality section embedded in a larger commercial agreement

2. Definition of Confidential Information

 Reasonable scope: Not overbroad (avoid "all information of any kind whether or not marked as confidential")

 Marking requirements: If marking is required, is it workable? (Written marking within 30 days of oral disclosure is standard)

 Exclusions present: Standard exclusions defined (see Standard Carveouts below)

 No problematic inclusions: Does not define publicly available information or independently developed materials as confidential

3. Obligations of Receiving Party

 Standard of care: Reasonable care or at least the same care as for own confidential information

 Use restriction: Limited to the stated purpose

 Disclosure restriction: Limited to those with need to know who are bound by similar obligations

 No onerous obligations: No requirements that are impractical (e.g., encrypting all communications, maintaining physical logs)

4. Standard Carveouts

All of the following carveouts should be present:

 Public knowledge: Information that is or becomes publicly available through no fault of the receiving party

 Prior possession: Information already known to the receiving party before disclosure

 Independent development: Information independently developed without use of or reference to confidential information

 Third-party receipt: Information rightfully received from a third party without restriction

 Legal compulsion: Right to disclose when required by law, regulation, or legal process (with notice to the disclosing party where legally permitted)

5. Permitted Disclosures

 Employees: Can share with employees who need to know

 Contractors/advisors: Can share with contractors, advisors, and professional consultants under similar confidentiality obligations

 Affiliates: Can share with affiliates (if needed for the business purpose)

 Legal/regulatory: Can disclose as required by law or regulation

6. Term and Duration

 Agreement term: Reasonable period for the business relationship (1-3 years is standard)

 Confidentiality survival: Obligations survive for a reasonable period after termination (2-5 years is standard; trade secrets may be longer)

 Not perpetual: Avoid indefinite or perpetual confidentiality obligations (exception: trade secrets, which may warrant longer protection)

7. Return and Destruction

 Obligation triggered: On termination or upon request

 Reasonable scope: Return or destroy confidential information and all copies

 Retention exception: Allows retention of copies required by law, regulation, or internal compliance/backup policies

 Certification: Certification of destruction is reasonable; sworn affidavit is onerous

8. Remedies

 Injunctive relief: Acknowledgment that breach may cause irreparable harm and equitable relief may be appropriate is standard

 No pre-determined damages: Avoid liquidated damages clauses in NDAs

 Not one-sided: Remedies provisions apply equally to both parties (in mutual NDAs)

9. Problematic Provisions to Flag

 No non-solicitation: NDA should not contain employee non-solicitation provisions

 No non-compete: NDA should not contain non-compete provisions

 No exclusivity: NDA should not restrict either party from entering similar discussions with others

 No standstill: NDA should not contain standstill or similar restrictive provisions (unless M&A context)

 No residuals clause (or narrowly scoped): If a residuals clause is present, it should be limited to information retained in unaided memory of individuals and should not apply to trade secrets or patented information

 No IP assignment or license: NDA should not grant any intellectual property rights

 No audit rights: Unusual in standard NDAs

10. Governing Law and Jurisdiction

 Reasonable jurisdiction: A well-established commercial jurisdiction

 Consistent: Governing law and jurisdiction should be in the same or related jurisdictions

 No mandatory arbitration (in standard NDAs): Litigation is generally preferred for NDA disputes

Step 4: Classify

Based on the screening results, assign a classification:

GREEN -- Standard Approval

All of the following must be true:

NDA is mutual (or unilateral in the appropriate direction)

All standard carveouts are present

Term is within standard range (1-3 years, survival 2-5 years)

No non-solicitation, non-compete, or exclusivity provisions

No residuals clause, or residuals clause is narrowly scoped

Reasonable governing law jurisdiction

Standard remedies (no liquidated damages)

Permitted disclosures include employees, contractors, and advisors

Return/destruction provisions include retention exception for legal/compliance

Definition of confidential information is reasonably scoped

Routing: Approve via standard delegation of authority. No counsel review required.

Action: Proceed to signature with standard delegation of authority

YELLOW -- Counsel Review Needed

One or more of the following are present, but the NDA is not fundamentally problematic:

Definition of confidential information is broader than preferred but not unreasonable

Term is longer than standard but within market range (e.g., 5 years for agreement term, 7 years for survival)

Missing one standard carveout that could be added without difficulty

Residuals clause present but narrowly scoped to unaided memory

Governing law in an acceptable but non-preferred jurisdiction

Minor asymmetry in a mutual NDA (e.g., one party has slightly broader permitted disclosures)

Marking requirements present but workable

Return/destruction lacks explicit retention exception (likely implied but should be added)

Unusual but non-harmful provisions (e.g., obligation to notify of potential breach)

Routing: Flag specific issues for counsel review. Counsel can likely resolve with minor redlines in a single review pass.

Action: Counsel can likely resolve in a single review pass

RED -- Significant Issues

One or more of the following are present:

Unilateral when mutual is required (or wrong direction for the relationship)

Missing critical carveouts (especially independent development or legal compulsion)

Non-solicitation or non-compete provisions embedded in the NDA

Exclusivity or standstill provisions without appropriate business context

Unreasonable term (10+ years, or perpetual without trade secret justification)

Overbroad definition that could capture public information or independently developed materials

Broad residuals clause that effectively creates a license to use confidential information

IP assignment or license grant hidden in the NDA

Liquidated damages or penalty provisions

Audit rights without reasonable scope or notice requirements

Highly unfavorable jurisdiction with mandatory arbitration

The document is not actually an NDA (contains substantive commercial terms, exclusivity, or other obligations beyond confidentiality)

Routing: Full legal review required. Do not sign. Requires negotiation, counterproposal with the organization's standard form NDA, or rejection.

Action: Do not sign; requires negotiation or counterproposal

Step 5: Generate Triage Report

Output a structured report:

## NDA Triage Report

**Classification**: [GREEN / YELLOW / RED]
**Parties**: [party names]
**Type**: [Mutual / Unilateral (disclosing) / Unilateral (receiving)]
**Term**: [duration]
**Governing Law**: [jurisdiction]
**Review Basis**: [Playbook / Default Standards]

## Screening Results

| Criterion | Status | Notes |
|-----------|--------|-------|
| Mutual Obligations | [PASS/FLAG/FAIL] | [details] |
| Definition Scope | [PASS/FLAG/FAIL] | [details] |
| Term | [PASS/FLAG/FAIL] | [details] |
| Standard Carveouts | [PASS/FLAG/FAIL] | [details] |
| [etc.] | | |

## Issues Found

### [Issue 1 -- YELLOW/RED]
**What**: [description]
**Risk**: [what could go wrong]
**Suggested Fix**: [specific language or approach]

[Repeat for each issue]

## Recommendation

[Specific next step: approve, send for review with specific notes, or reject/counter]

## Next Steps

1. [Action item 1]
2. [Action item 2]

Step 6: Routing Suggestion

Based on the classification, recommend the appropriate next step:

Classification
Recommended Action
Typical Timeline

GREEN
Approve and route for signature per delegation of authority
Same day

YELLOW
Send to designated reviewer with specific issues flagged
1-2 business days

RED
Engage counsel for full review; prepare counterproposal or standard form
3-5 business days

For YELLOW and RED classifications:

Identify the specific person or role that should review (if the organization has defined routing rules)

Include a brief summary of issues suitable for the reviewer to quickly understand the key points

If the organization has a standard form NDA, recommend sending it as a counterproposal for RED-classified NDAs

Common NDA Issues and Standard Positions

Issue: Overbroad Definition of Confidential Information

Standard position: Confidential information should be limited to non-public information disclosed in connection with the stated purpose, with clear exclusions.
Redline approach: Narrow the definition to information that is marked or identified as confidential, or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.

Issue: Missing Independent Development Carveout

Standard position: Must include a carveout for information independently developed without reference to or use of the disclosing party's confidential information.
Risk if missing: Could create claims that internally-developed products or features were derived from the counterparty's confidential information.
Redline approach: Add standard independent development carveout.

Issue: Non-Solicitation of Employees

Standard position: Non-solicitation provisions do not belong in NDAs. They are appropriate in employment agreements, M&A agreements, or specific commercial agreements.
Redline approach: Delete the provision entirely. If the counterparty insists, limit to targeted solicitation (not general recruitment) and set a short term (12 months).

Issue: Broad Residuals Clause

Standard position: Resist residuals clauses. If required, limit to: (a) general ideas, concepts, know-how, or techniques retained in the unaided memory of individuals who had authorized access; (b) explicitly exclude trade secrets and patentable information; (c) does not grant any IP license.
Risk if too broad: Effectively grants a license to use the disclosing party's confidential information for any purpose.

Issue: Perpetual Confidentiality Obligation

Standard position: 2-5 years from disclosure or termination, whichever is later. Trade secrets may warrant protection for as long as they remain trade secrets.
Redline approach: Replace perpetual obligation with a defined term. Offer a trade secret carveout for longer protection of qualifying information.

Notes

If the document is not actually an NDA (e.g., it's labeled as an NDA but contains substantive commercial terms), flag this immediately as a RED and recommend full contract review instead

For NDAs that are part of a larger agreement (e.g., confidentiality section in an MSA), note that the broader agreement context may affect the analysis

Always note that this is a screening tool and counsel should review any items the user is uncertain about