I believe that the consultant was in violation of an NDA or CDA, especially if this was not agreed upon by the other company he used to work with. I think this is also why it is necessary for companies to work directly with attorneys in such matters to protect the company from any legal actions that can occur or to file legal actions against consultants or parties who are not in compliance with certain contracts or agreements. Moreover, it is also important for the manager and employees of the company to understand the rules to the binding agreements made. Because your manager knew that the consultant was in violation of the rules, he was able to recognize this and use the company's own template in order to avoid any problems with NDA/CDA violations - even without asking an attorney.

Fady,
This is a great discussion point. From the example you provided, it is definitely violating the NDA or CDA agreement that the consultant and previous company. Not only are they disclosing that company’s name, they are also indirectly exposing the company and possible tools of how they use to conduct business that can be easily start a law suit. In my experience, working within J&J and with the large volume of contracts that they process every day, all the documentation is generated in-house. I have worked in projects that require 25 CDA’s for different suppliers and even if they provide a draft, the contract department will use that draft are a reference and will develop its own document. And from your example, it definitely shows why companies reduce the risk by just creating their own documents to reduce risk.

Everyone is making valid points; I do not have any similar experience but I do think the scenario that you gave is very interesting. My input on this is that the company put themselves in a tough situation for hiring someone who is using company documentation. I am wondering why the company didn’t ask for a template or conduct a background check of his company. What if this wasn’t the first time this has been done? This example displayed violating the NDA or CDA agreement with all the companies because we are not sure if he took examples from other places. Once the company found out that he was copyright I hope attorneys got involved. Just a suggestion I think the consulting agreement should include more questions to find more about the company. How common is this happening within companies?

I do not have experience with this matter since I haven’t been able to work in a company where I have to deal with this matter but I do have to agree with Zmh4 on his point of view, it seem it was a violation of an NDA or CDA, the reason why I believe that is a violation is because when it comes to agreements, they should different from each company this will prevent any law sue in the future by other companies that they might not like the idea of using their agreements in other company.

I do not have any similar experiences to the one you provided, but I can definitely say that it is an interesting one. The situation does in fact violate the NDA or CDA for multiple reasons. The consultant is outwardly exposing the tools that his previous company used for their documents. This entire situation has to do with copyright and revealing the way another company does business. I am sure if that company found out what he was doing, a law suit could have easily been started. It would be beneficial for companies to work with attorneys who can take action against those who do not appropriately follow written agreements. The fact that your manager was able to realize the violation and took action to avoid any possible legal action, he showed his complete understandings of the binding agreements. I really hope the consultant is not doing this with every company that he is going to!

I believe something like this would definitely violate your NDA or CDA. IMO your manager made a great decision. Just having the wrong logo is enough for a violation depending on what is patented. Companies like Tiffany Co. actually patent the shade of blue/green they use!
I think copying a general layout is okay, just looked down upon. Copying macros are definitely cause for concern. This goes to show the type of quality checks managers must do daily to avoid added risk. This was a decision that could have severely hampered the company. It could have even resulted in negative publicity for the company. It's not only the fact that one company might copy another's template. Each company needs to develop their own brand. Copying something like this from another company clearly shows that there is no unique business identity established.

Hi Fady,

The consultant that was hired at your company is in violation of an NDA or CDA for sure. It is quiet irresponsible of him to just copy the document from another company and not edit out the embedded logos and macros from that other company. It would be alright to follow the organization and overall formatting from the other company he worked for as reference, but he should have made changes so that any document he puts out is customized to the current company that he works for. Most companies are not 100% original as ideas and rules of conduct are borrowed/recycled from other "ideal" companies. This is fine so long as the company makes an effort to not copy things exactly from another company and instead add value to borrowed ideas to set them apart.

While this consultant definitely seemed to be in violation of the NDA or CDA, however this topic can be tricky. Having worked with two companies that work on the same technology it is clear that sometimes the way things are done are just the logical way. Especially in an environment that is as heavily regulated as the medical device and pharmaceutical industry. The requirements for documents and methods for research are very often similar or the same because the requirements are the same. In addition these fields are made of many people who have worked in several companies and as a result, most places know the best way to do things. For instance when writing a document I think it would be okay to say what would be better to include and not include from past experience, but the actual write up of the document needs to written by the company.

The consultant does violate the NDA or CDA by copying the template from the previous company. Each company should follow their own template when completing contracts. Although companies are similar in their products and goals, that still doesn’t mean that they are allowed to use the same template. Unless the company whose template is being used has agreed to another company using their template, it is a violation of the NDA or CDA. This why it is important to have lawyers present in the company for these situations to know what counts as violation and what doesn’t. Just because another company’s has a good formatting for the template, it does not give them the right to use it, without permission.

I think the consultant was definitely violating the NDA agreement by using templates that even have 'logos' of other companies. It shows that he does not honor the terms and conditions of the NDA agreement with his client and puts into question his work ethics especially while dealing with confidential information. It might also give one an idea that he maybe a representative of the company's logo he is using and his actions are proof of his covert intentions.

When I first started at Sloan Kettering, I worked in the contracts unit which handled agreements including NDAs. Usually contracts units use in-house counsel to develop templates. Honestly most NDAs include are very similar 1-2 page documents with standard sections/terms. I don't think its really a consultants role to execute NDAs or provide NDA templates that should have been established or at least reviewed by your company's in-house legal or sent outside for an attorney to review. If there was no mention of the company and stripped from being identified, I'm not sure that its really a violation of the NDA to use the template language (It depends on if the NDA specified that the agreement/language itself was confidential). Again most NDAs include similar template language and that should always be provided or reviewed by a company's legal team and or outside attorney. Its not in good taste for him to take another companies' template language, but again its seems like legal documents would have been out of the scope of a consultant for design controls and should have been established by your company's legal team/attorney.