Never sign an NDA to get a briefing

This photo of me playing Scrabble GO appeared in the Wall Street Journal. Photo by Ray Bernoff.

If you write about industry events as a journalist, analyst, or blogger, companies may want to share with you details on their upcoming products and projects. They may present you with an NDA (non-disclosure agreement). Don’t sign it.

This is a situation I faced many times as an analyst at Forrester Research. And it just came up again with Scopely, the company developing Scrabble GO.

The ask from Scopely PR

I recently wrote a couple of highly popular but scathing blog posts about Scrabble GO, Scopely’s sparkly new replacement for the staid but beloved EA Scrabble app. I also got quoted in the Wall Street Journal (with a photo!) describing the app as “like being inside the small intestine of a unicorn that just ate a bunch of rainbow Skittles.”

So Scopely knows who I am.

Since I wrote all that, I’ve been using the app and it’s much improved. I was interested in learning more. So I used their contact form to request a briefing on the company’s future plans. This was their response:

Hi Josh,

[Name redacted] with Scopely PR here, great to be in touch and thank you for reaching out! We’ve been following your writing on WithoutBS, and we’d love the opportunity to have an open and honest conversation with you around Scrabble GO.

I know the ask was to interview Javier, however I wanted to float a proposal by you.

We’d start with off-the-record conversation between you and our Scrabble GO product leads to talk through what you’d like to see in the game, as well as get your input on some in-development features we’re working on. We’d put you in touch with [name redacted], Scrabble GO’s Director of Product Management, as well as a couple of his colleagues. [Name redacted] is responsible for development roadmap of Scrabble GO, so thought it would be a good place to open the door.

Now for the corporate part – we’d ask for you to sign a NDA ahead of the conversation so that all parties can speak freely and the team can share some of those new features they’re working on.

After the conversation, we can certainly explore something more formal and on-the-record.

Would be interested to hear what you think!  We can look to next week . . . to connect.

Sounds great right? But I didn’t bite.

Why you should never sign the NDA

A typical NDA binds you to remain silent about what you hear, and includes penalties if you reveal the information that needs to be kept secret.

So what would happen if I signed the NDA?

I would hear a whole bunch of things, but could not get on-the-record responses to my questions, so I could not write about them.

I would have the potential opportunity to “explore something more formal and on-the-record” — but no promise.

The company would have my signed NDA. From that point forward, they could threaten to sue me for anything I will ever say about Scrabble or Scopely.

Even if I didn’t actually reveal information shared in confidence in my writing, they could still threaten me. I would likely eventually win any case, but that would require me to hire lawyers and spend a lot of my own money. And Scopely can pay more for lawyers than me.

Result: I would be effectively silenced in exchange for a secret conversation and behaving like a good boy in hopes of some scraps in the future.

After I had refused this offer, Scopely’s PR responded that “Wires might have been crossed on our end from your first email, resulting in us approaching this from a player feedback perspective, rather than a media interview.” As they explained later, “We came to you as a player first, knowing you have experience with and thoughtful opinions about Scrabble GO.”

I think that’s a stretch — in my request, I’d prominently mentioned my posts as a blogger and that I was an analyst, and in their response, they said they’d been following my writing. But in any case, once Scopely PR recognized me as acting more like media than a user, their approach changed and there was no further request to sign an NDA.

So what’s a journalist or analyst to do?

Companies often want to share information that’s not yet public, but will be on a future date. That sort of arrangement is called an “embargo.” For example, if Scopely asked me to remain silent about what I heard until, say, October 1, that would be an embargo.

Journalists and analysts often agree to embargoes — it is convenient for the company to brief people ahead of time, and the writer knows they will get a chance to write about what they hear at a specific mutually agreed upon future date.

Embargoes typically do not come with written agreements. They are oral promises. Journalists and analysts rarely break them, because once you do, no one will ever trust you again.

It’s also possible to get a briefing in which a specific part is off the record. For example, you’re hearing about a new product, and you ask about the number of customers. The company executive says, “I can tell you that off the record.” You say. “OK, I promise to keep that off the record.” They then reveal the customer number.

That works because a specific piece of information may be sensitive, but it is helpful to both the writer and the company to tell you about it as background information. As a writer, you may think, “Wow, they have a lot of customers.” This makes you take the rest of the briefing more seriously. But the company knows that the customer number, which may be sensitive information that they are not ready to see in print, is kept secret.

So what do you do about the NDA?

Most professional PR folks at technology companies knew better than to present an analyst or journalist with an NDA. They could secure an oral promise to keep information secret for a fixed period of time, secured by our reputation.

When I was at Forrester, I had a very simple ploy for such situations, one that many other analysts used as well. When handed an NDA, I would just say, “I can’t sign that personally — I would have to get our legal department to look at it. That could take a few weeks. Do you want to come back after that?” They would then immediately back down. It worked every time.

Incidentally, in 20 years, I was never accused of revealing information inappropriately. In that time period, how many accusations of inappropriate leaks were there across all of our analysts in the whole company? Perhaps one. Keeping secrets was part of the job.

If we were negotiating about a briefing, sometimes this stance meant I didn’t get the briefing. That was fine with me. Information I could never write about was useless, so why take an NDA briefing with no end date on the embargo?

NDAs are appropriate when working with clients

NDAs are very common.

They come up often in consulting situations. I have many clients with whom I have signed NDAs. This allows the client and me to work on the client’s proprietary and confidential information. I take that responsibility seriously.

Why the different attitude with clients?

Crucially, I am getting paid. The information exchange is part of a commercial relationship, not a journalistic relationship. There’s something in it for me.

Furthermore, the client is unlikely to sue me for revealing secret information unless I actually did break a confidence. There’s not much gain in doing so for them. Why antagonize a consulting supplier over nothing?

If you are pursuing a potential partnership, an NDA can protect your rights to proprietary information.

This was — sort of — Scopely’s attitude about treating me as a player. As they later clarified, “We often [share feedback about potential features] with players to collaborate on making the game the best it can be. As you mention, NDAs are standard practice when companies bring external audiences into the development process.” Does this make sense? Only if you never want to write about what you see.

What if you are both writing about a company and they are a client or partner?

That doesn’t come up very much. Sometimes the senior executives have no idea I’m also working with someone lower down in the organization. The NDA on my client work doesn’t tend to interfere with writing about the company’s public activities.

So go ahead and sign an NDA with your clients. Just don’t sign one when you’re writing about a company as a journalist, analyst, or blogger. There’s not much reason to do that, and lots of reasons why doing it could just muzzle you forever.

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  1. Nicely done, as any of your readers would expect. Remarkably, despite years of analysts communicating these ideas, corporate AR departments across the IT vendor community never seem to internalize the concepts and evolve their policies and practices. You and I both dealt with this years (decades!) ago when we worked at the same firm, and now that I’m at Gartner, more of the same. The same questions crop up, from the same ones, year after year….