Backdating NDAs: Can You Make Confidentiality Retroactive?

Often in business, a party commences discussions with a counterparty including discussions which may involve sensitive business ideas, only to realise that a Non-Disclosure Agreement ("NDA") was not signed. This brings about the question as to whether you can protect confidential information disclosed prior to the signing of an NDA. Many assume an NDA automatically covers all instances when the parties have shared confidential information, however, this is not necessarily the case. In this article, we deal with the issue of whether an NDA can be backdated to cover instances where confidential information has been disclosed prior to the NDA's effective date and what happens where a party has disclosed confidential information in the absence of an NDA or having signed one after disclosure.