How not to sign NDAs
<p>If you&#8217;re any kind of consultant or contract programmer, and you&#8217;re an open-source person, one of the persistent minor (and sometimes not-so-minor) irritations of doing business is NDAs (Non-Disclosure Agreements).  Your client will often want you to sign one.  About 1% of the time they&#8217;re protecting actual business-critical information; the other 99% they&#8217;re suffering from an unfounded delusion that they&#8217;re protecting business-critical information &#8211; but the rigamarole is 100% annoying 100% of the time.  Besides, even if (like me) you consider it a point of personal honor not to blab things you&#8217;ve been told in confidence, you probably have a philosophical objection to being gagged.</p>
<p>I haven&#8217;t signed an NDA in least the last 12 years of active consulting, and over my entire 27 years of such I&#8217;ve maybe signed a grand total of two NDAs, and I&#8217;ll never sign one again.  Herewith, a short course in how to evade them.</p>
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<p>The general rule is this: set up circumstances where the pain to them from having the NDA exceeds the extent to which they&#8217;re willing to trust you.  Basically, this means that you have to make the NDA have potentially unpleasant legal consequences <em>for them</em>.</p>
<p>The best way I know to do this is to be a director or other officer of a corporation, with fiduciary responsibility to the corporation.  You tell them: &#8220;I never sign NDAs because I refuse to end up in a no-win legal situation &#8211; the NDA terms might require me to violate my fiduciary responsibility, or vice-versa.&#8221;  Back when I was a director of VA Linux, this was a nuclear bomb that immediately vaporized all talk of NDAs whenever I brought it up.</p>
<p>Even without a directorship, a variant of this works pretty well.  Tell them you never sign NDAs because you&#8217;ve had other clients in the past and will have more in the future, and you don&#8217;t care to get caught in the no-win situation that an NDA puts you in the gunsights of a nonperformance or honest-services prosecution (or vice-versa).</p>
<p>If they press the point, tell them you&#8217;ll sign that NDA if, and only if, they will sign an agreement indemnifying you against all costs arising from any lawsuit arising from a conflict between the NDA and any future agreements or fiduciary responsibilities you may assume.  That&#8217;ll usually shut them right up; they&#8217;ll set the limited downside risk that you&#8217;ll blab something against a potentially unlimited risk from a big messy civil lawsuit and fold up like cheap cardboard.  </p>
<p>This does mean they have to need you enough so that the soft option isn&#8217;t to say &#8220;No NDA, no business,&#8221; and walk you out the door.  But if they didn&#8217;t need you to cover something nobody in-house can do as effectively, they wouldn&#8217;t be asking for the NDA in the first place. So hang tough about this. Most NDAs are pro-forma, ass-covering gestures to begin with; chances are the person trying to get you to sign one knows this is true about his piece of paper and won&#8217;t fight very hard to defend it.</p>
<p>It&#8217;s always good to point out that you have a reputation to protect, and you&#8217;re not going to injure your client by flapping your lips because if word got around that you did that sort of thing you wouldn&#8217;t have any clients anymore.  Stand on your dignity, point out that you&#8217;re a professional, and sound a bit offended at the suggestion that anyone would be crass enough to doubt your discretion (but don&#8217;t overdo that last part lest it seem like posturing).</p>
<p>This battle is worth winning for reasons other than avoiding legal risk.  It sends a clear message that you are a professional with a backbone and a clear sense of your own worth &#8211; not to be jerked around and chickenshitted at. And that is always a good thing to establish before the job starts.</p>
