If before the recipient or any of its representatives receives information from the disclosing party they receive that information from someone who is under an obligation to the disclosing party to keep it confidential, will that information nevertheless be excluded from the definition of “Confidential Information” if the recipient was unaware of that obligation?

Regardless of how you answer the questionnaire, the resulting draft will state that information will not constitute confidential information if when the recipient receives that information it already has that information, having previously received it from someone who had no duty to the disclosing party to keep it confidential.

This question alters the scenario in two ways: First, the person who supplied the information was under a duty to the disclosing party to keep it confidential. And second, the receipient was unaware of that obligation.

This question asks you to determine, given those two circumstances, whether the fact that the recipient wasn’t aware that the person who supplied the information was under a duty to the disclosing party to keep it confidential is reason enough to exclude that information from the definition of “Confidential Information.” It also asks you to decide if it’s relevant whether the recipient checked as to confidentiality when it received the information from the nonparty.

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