NDAs Explained

What Counts as 'Confidential Information' in an NDA?

Updated April 23, 2026 2 min read
NDAs Explained — What Counts as 'Confidential Information' in an NDA?
TL;DR

The phrase sounds precise. It's not. It means whatever the NDA says it means.

The Contract Defines the Scope

Unlike trade secret law with its statutory tests, an NDA's scope is purely contractual. Sign something saying "all information" is confidential and you've agreed to treat everything as confidential. Courts might narrow unreasonably broad definitions, but they might not, and you don't want to be the test case.

The Four Standard Exclusions

(1) Public information already out there. (2) Prior knowledge you had before signing. (3) Independent development without using the disclosed info. (4) Third-party disclosure from someone with no confidentiality duties. Missing exclusions are deliberate, not accidental.

Marking Requirements

Some NDAs say info only counts as confidential if marked. Great for receiving parties — you know exactly what's covered. Risky for disclosing parties who forget to label documents.

Residual Knowledge

Some NDAs let you use general ideas retained in unaided memory. Controversial because it's hard to prove what came from memory vs specific documents. Worth including in creative or technical fields.

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Frequently asked questions

Is metadata (who I met with) confidential?

Only if the NDA specifically says so. Some include non-disclosure-of-relationship clauses separately.