Monday, 10 April 2006

AR 101 series: NDA's

Briefings under NDA are not only a recurring question for AR newbies but are also the source of ongoing debates among the AR community, see for instance the comments on this SVG post:

1. What is an NDA?
In industry analyst relations terms, it is used when vendors schedule an analyst for briefings containing information not publicly available. These briefings are commonly referred to as "under NDA", after the "Non Disclosure Agreement" analysts are kindly asked to sign. This agreement is prepared by our friends from the legal department and is a contract which simply aims at protecting the IP discussed during this briefing. As a contract, it needs to be signed by both parties to be binding. It also should have a specific timeframe during which the IP is under NDA and should delimit very clearly what is covered: products, strategy, offerings, competitive tactics, etc...
The term NDA is commonly used outside of AR, not only in the IT industry but also in general business. In the dark world of media relations, this is similar to an embargo, in that a date and time is before before which the information cannot be shared. As often with PR, it has a much more restricted meaning as it usually describes a one-way communication that should not be reported before the announcement date. Unlike an NDA, an embargo works on trust rather than legal force. Phil posted another definition here.

2. Why should I organise NDA briefings?

The simple answer is because both parties have an interest in doing so.

With NDA briefings, vendors can schedule briefings ahead of announcements and make sure air-miles-junkies get the news (old news is no news). Those briefings are also an opportunity to get feedback before releasing something into the wild, thus potentially avoiding big and costly mistakes or refining the messaging (see #8).

On the other side of the table, and as we mentioned here, analysts are interested first and foremost by future strategies and roadmaps. The essence of their job is analysing information they have gathered, so access to unpublished details is a differentiator for them.

NDA briefings also benefit users who are clients of both analysts and vendors: imagine a bank considering a new application and hiring an analyst to advise. You're about to launch a new release and the analyst is not briefed. You missed the sale because you were not on the short list. Now consider the case where the analyst was briefed under NDA: he can say something like "I think you should also go to vendor X and ask them a pitch on their upcoming product release". You may be considered for the RFP and have a chance to get the deal!

3. When should I do briefings under NDA?
Vendors should use NDA's wisely. If the whole marketplace is buzzing about an upcoming announcement, they may become a laughing stock when trying to enforce NDA which does not bring new news to the analyst.
On the political side of things, NDA briefings might also a good way for AR professionals to be covered in case of leaks (see #5 and 6).

4. What form should I use?
If you have a legal background, you should know. In any other case , go to your legal department or legal counsel. The form usually asks analysts not to talk or write about what was disclosed until a specific date. Make sure it's very specific on what is under NDA and until when. And always keep the required paperwork at hand.... (see also #7)

5. Do analysts break NDA's?
Analysts' existence largely depends on their reputation. If they are known to not abide by the rules of the game, they will quickly be excluded. On the corporations are ready to go to great length to avoid sensitive information to fall into public domain.
So it's no surprise if leaks are neither common nor widely publicised. It is often the case that analysts obtain information from other sources, like two well-known cases. It is more tricky to assess when analysts share something under NDA within their firm.
At the end of the day, it is a question of trust: only brief analysts that you have complete trust and resist pressures to extend your A list. Do give some though on the impact on your customers.

6. What can we do if an analyst don't observe an NDA?
The Apple Secrets case was a PR disaster and it's impossible to take back something that's published. Check your facts, make sure you clearly said it was under NDA. Then go to the analyst and ask some explanation. If inconclusive, ban the analyst and tell your peers. Keep in mind this is a one way avenue and that you won't easily recover this relationship. But the analyst should know too.

7. Should I always use a form?
No. Use the forms when the project discussed has very high sensitivity and exposure within your company to CYA. Most of the time, the form is there to inform the analyst -as we've seen in #6, there's little way to seek redress if things go pear shaped.
In most cases, analysts are pretty good with observing NDA's and it's a question to know which ones to trust or not.
However, be very careful to flag what is presented to analysts under a non-disclosure agreement, mark the sensitive slides as "VENDOR X INTERNAL USE ONLY" or similar injunctions. Orally, say it's under NDA several times. This also apply to customer references: if the customer and your account team did not explicitly approve for public consumption (make sure you have an email trail stating it), then release the story, the industry but not the name and say it's under NDA.

8. How do analysts react to NDA's?
Some perceive NDA as a signal that they are being admitted within a small trusted circle and react well! Others pretend to be offended because you don't trust them enough!

As with most things in business NDAs should not come as a surprise. Surprises are nice if you're a 10 and it's your birthday. Do let the analysts know when inviting them to a physical briefing that they'll be expected to sign an NDA. In the case of telephone briefings, do send them the form before, requiring they fax it back. Far too often AR people pass analysts NDAs, which basically forces the analyst to sign the NDA without reading it [which would mean the NDA would not stand up in a European court] or to delay the briefing until the NDA has been studied.

Some analysts refuse to sign NDAs because they feel NDAs prevent them from doing their work. Many also point out that NDAs are typically far too wide to be enforceable. To ease the concerns of these analysts, make sure dates and secrets are precisely stated and avoid blanket NDAs. Bear in mind that you're communicating information to help them do their job and broker it.

Some analysts will still refuse, claiming it's against their company policy (like the Gartner Borg). In many cases, Gartner has a blanket NDA with most large vendors, which can be okay. Do CYA with your legal department though.

9. An NDA briefing is not a consulting engagement
If you're after message testing and validation, then you should not expect analysts to deliver this for free. The temptation is great to call on their goodwill to get feedback but a line needs to be drawn somewhere. This will be the subject of a further AR 101 on briefings. Note that engagements under NDA are easier to police too.

Bottom line:
  • Vendors should use NDA with moderation, clearly delimit what is under NDA and what is not, specify a reasonable end date and resist abuse briefings to get feedback.
  • Analysts should not sign an NDA without specific date is mentioned or if products/offerings are not clearly marked out and be careful not to spill the beans.

  • Links:
  • Gartner analysts to no longer agree to non-disclosure agreements for briefings
  • AR 101 series: briefing analysts
  • Ovum breaks the iPod cellphone embargo?
  • Frank Gilroy, Entrepreneur: Non-Disclosure Agreements (NDAs)
  • Sacred Cow Dung: MYTH: NDAs are a Good Idea
  • Starting a Software Company: To NDA or not NDA
  • James Governor's MonkChips: On How To Brief Analysts what we are, and expect
  • The Devil's IT Dictionary: NDA
  • The Infamous EMC Storage Analyst Letter
  • IBM letter to a Isham Research

    Phil Payne said...

    I don't, in general, like signing NDAs. Irrespective of their legal enforcibility - almost always questionable. But as a legal friend of mine says, by the time you reach for the contract the relationship is already down the toilet. In this context, I'm not sure that a formal NDA has any value whatever - it's really down to trust and there is simply no replacement for a professional AR team that maintains personal relationships with the analysts they value. And it's not an easy job - having seen it from both sides of the fence.

    And for fun. I once had to attend a briefing that - for logistical reasons unique to the vendor - had to be in the USA. They conveyed me there in some comfort and I gave them five days of billable time in return.

    On arrival, someone I knew in the US team told me what an absolute disaster the european AR team had experienced on their way over. Engine failure, landing in Greenland, 14 hour delay, lost baggage, the works.

    I came down for the reception and encountered the team in phalanx mode walking toward me. The team leader - always a very courteous guy - asked me about my flight. I, of course, knew precisely what kind of disaster he'd experienced.

    "Well," I said, "you let yourselves down a bit this time - the lobster was quite dry."

    You've never seen so much restraint on so many faces.

    Stuff NDAs. Both analysts and vendors have an interest in the survival of the market, and no one with any sense will damage the others' business.

    ARonaut said...

    What's the lobster got to do with the whole story Phil?

    Check my comments on the comments part of the Andy's post on my post:
    "Consider this NDA!" (No Dumb Analyst)