Drafting an NDA: confidentiality agreements and trade secret protection

A non-disclosure agreement (NDA), also called a confidentiality agreement, governs the disclosure and use of sensitive information. Its practical value also emerges in litigation: what was disclosed, to whom, for what purpose and subject to which restrictions? This guide addresses protection under French law.

An NDA should form part of a wider strategy for trade secret protection and litigation, supported by access controls, records of disclosures and a process for handling incidents.

Confidentiality agreements and trade secrets: distinct but complementary protections

Contractual confidentiality and statutory trade secret protection are not identical. A contract may protect information that does not satisfy every requirement for a trade secret. Conversely, signing an NDA does not establish that every disclosure qualifies for statutory protection.

Article L. 151-1 of the French Commercial Code requires information that is not generally known or readily accessible to professionals in the relevant field, commercial value arising from its secrecy, and reasonable steps to preserve that secrecy. An NDA supports the last requirement, but implementation matters. Article L. 151-5 addresses, among other situations, use or disclosure in breach of a duty of confidentiality or a restriction on use. Read the French statutory provisions.

When should an NDA be signed?

Arrange protection before disclosing a technical file, negotiating a licence, starting joint R&D, appointing an IT service provider or sharing information for an investment. A unilateral NDA may be appropriate where only one party discloses information; a mutual NDA where both parties do so.

In due diligence, the data room arrangements matter as much as the agreement: which documents can be viewed, who may access them, whether downloads are permitted and what happens if the transaction fails. Staged disclosure can align the detail provided with the progress of negotiations.

Draft the agreement with the evidence in mind

Identify the protected information

Describe intelligible categories, such as processes, manufacturing parameters, source code, test results, pricing or commercial plans. Address oral disclosures, demonstrations, samples and materials derived from disclosed information. Retain the precise versions supplied. Confidentiality markings help, but a blanket statement does not identify the particular trade secret later relied upon.

Define the permitted purpose and recipients

Specify the permitted use, such as evaluating a proposed collaboration, and the restrictions on further use or disclosure. Address access by employees, contractors, advisers and group companies rather than assuming that each is covered. Allocate responsibilities for onward disclosures and provide for incident notification.

Address exclusions and mandatory disclosures

Consider information already public, previously held lawfully, independently developed or lawfully received from a third party, together with the records needed to substantiate an exclusion. Provide for requests from public authorities and prior notification where permitted. Mandatory rules, including applicable whistleblower protections and employee rights, must be respected.

Separate the disclosure period from the confidentiality period

Distinguish the period during which information may be disclosed from the duration of the confidentiality obligation. Tailor the latter to the sensitivity and useful life of the information. Address return or destruction, written confirmation, backup copies and records retained to comply with legal obligations. Retention exceptions should remain controlled and consistent with continuing confidentiality.

Coordinate remedies, governing law and jurisdiction

Review the interaction between liability provisions, any liability caps, agreed penalties and urgent relief. Under French law, an agreed penalty does not guarantee automatic recovery of the specified amount: a court may adjust a manifestly excessive or derisory penalty under Article 1231-5 of the Civil Code. Governing law and jurisdiction clauses should reflect the parties and the places where information will be used.

Reasonable steps: put the agreement into practice

• Map the information: identify sensitive material, its holder and authorised recipients.
• Restrict access: grant access according to need, use individual accounts and revoke permissions when an assignment ends.
• Keep records: retain signed undertakings, document versions, disclosure records and relevant access logs.
• Train teams: explain how to mark, transmit and report incidents involving sensitive information.
• Check implementation: review contractor practices and the return of information when personnel leave.

For example, an NDA signed before a technical demonstration is more useful if the business can also identify the participants, the materials shown and the restrictions communicated. Document the measures actually applied while avoiding unnecessary collection of personal data.

Breach of NDA: preparing a litigation file

Start with a chronology: the information involved, authorised access, the disputed disclosure, when it was discovered and any identified use. Preserve originals and available records lawfully, separating established facts from assumptions. Assess the contractual obligations and the statutory trade secret requirements separately.

Connect each proposed remedy to specific evidence, whether seeking to stop use, protect documents, preserve evidence or recover loss. Interim measures and protection of confidential material in court are addressed, in particular, by Articles L. 152-4 and L. 153-1 of the French Commercial Code. Relief remains subject to the applicable procedural requirements; an NDA cannot predetermine the court’s assessment.

For a defendant, relevant issues may include the scope of the undertaking, lawful sources of information, permissions, exclusions and proof of loss. A commercial dispute does not itself establish unlawful disclosure.

Frequently asked questions

How does an NDA differ from a confidentiality clause?

An NDA is a standalone agreement; a confidentiality clause forms part of a wider contract. Both should address the information, permitted purpose, authorised recipients and duration.

Does an NDA automatically create a trade secret?

No. It is one part of the protection arrangements. The statutory requirements must also be satisfied and protective measures must be implemented in practice.

Can information be protected without an NDA?

The absence of an NDA does not rule out all protection. Other applicable duties and protective measures must be identified. It may, however, make it harder to prove the restrictions agreed with the recipient.

Can a template NDA be used for fundraising?

A template is a starting point. It should be adapted to the recipients, the information genuinely needed and the data room arrangements, taking account of the investment process and advisers’ obligations.

Discuss a confidentiality review or dispute

Dhenne Avocats assists with confidentiality arrangements and trade secret disputes. Prepare the NDA and its versions, identify the information at issue, gather records of disclosure and set out the chronology. Contact the firm’s trade secret litigation team.

Further reading: confidentiality agreement: glossary definition and our trade secrets practice.

Updated 28 September 2026. Sources: French Commercial Code, Articles L. 151-1 to L. 153-2; French Civil Code, Article 1231-5. This general guide requires application to the facts of each matter.