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Legal Writing

: AdamsDrafting

BaselineNDA?A Tool for Reviewing NDAs

By Ken Adams

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I’ve kicked the tires of a good number of information-technology tools aimed at making the contract process more efficient, but I hadn’t encountered a product that aimed to simplify the task of reviewing a contract drafted by the other side in a transaction.

That changed when I was contacted last week by Scott Soloway, founder and president of Baseline Solutions Corporation, who told me about BaselineNDA, the first in a proposed line of web-based Baseline products. (I’m hardly surprised that Baseline Solutions elected to tackle nondisclosure agreements first: they’re relatively straightforward, relatively low value, and alarmingly prevalent. That makes them a perfect guinea pig for anyone experimenting with new approaches to the contract process.)

Here’s how BaselineNDA’s website(which is in beta testing) introduces the concept:

Baseline is a suite of tools which allows a contract reviewer to integrate best practices and shared knowledge directly into a document. The tool is for use by anyone who reviews contracts?controllers, CFO?s, CEO?s, paralegals, contract administrators, contract managers and lawyers.

Baseline works by reading the uploaded contract and then generating a snapshot summary of the contract. With a further click of the mouse, Baseline generates a markup of the document incorporating best practices into the document in Microsoft Word track changes mode. The best practices take the form of inserted clauses, deleted clauses and hyperlinks to a Knowledgebase with a further explanation of the clauses.

Think of Baseline as the first step in reviewing an agreement. It brings the third party document to a base level ready for further redlining.

In reviewing a given NDA, BaselineNDA uses artificial intelligence to analyze the meaning of each provision and determine whether it constitutes one of 26 common NDA provisions. It produces a snapshot summary that indicates, with check marks, which of those 26 provisions are present in the draft under review. This would certainly give one a sense of what to expect, but obviously enough, the user can’t be on autopilot. For one thing, the artificial intelligence isn’t flawless. For example, it omits any sentence that contains more than one clause, although Baseline Solutions intends that future releases will be able to recognize compound provisions.

The user is then offered the “Baselined” NDA?the NDA in the form of a Word document marked, using Word’s “track changes”feature,to reflect processing in accordance with a set of instructions known as a “Playbook.”

A Playbook gives you the option, for a given provision, to delete that provision from the NDA under review; to insert a standard version of that provision if it isn’t otherwise in the NDA; to highlight and identify that provision if it’s in the NDA and provide a link to an NDA “Knowledgebase”; or to do nothing.

BaselineNDA offers a default Playbook containing rules with respect to each of the 26 specified NDA provisions. Users can edit that Playbook or create an unlimited number of custom Playbooks adjusted to reflect, for example, whether your client is the disclosing party or the receiving party.

The NDA Knowledgebase built into BaselineNDA is a resource providing, for each of the 26 provisions, background information, the standard version, drafting and negotiating tips, fallback versions, and a library of alternative versions from other agreements. You can access the Knowledgebase either by clicking on the Knowledgebase tab or by clicking on a hyperlink in a comment box next to a given provision. Like Playbooks, the Knowledgebase can be customized to reflect the practices of a given user or organization.

To get a sense of how BaselineNDA works, you’ll need to check it out yourself. But here are some thoughts:

The language used in the standard provisions is that of mainstream contract drafting, so it wouldn’t get my seal of approval. Regular readers of this blog won’t be surprised!

And Baseline Solutions faces a problem common to many information-technology solutions aimed at the contract process. To a greater or lesser extent, such solutions take decisions out of the hands of the user?that’s inherent in their value proposition. If you’re going to ask users to take things on faith, it helps to have established a public track record demonstrating exceptional expertise. Baseline Solutions doesn’t have that kind of track record; it will have to build it on the fly.

BaselineNDA will knock provisions out of, or drop provisions into, a given draft, but it isn’t able to critique those provisions in the original that are retained. But BaselineNDA doesn’t intend to remove the reviewer from the process. Instead, the goal is to bring a document to an acceptable starting point by deleting objectionable standard provisions and adding those standard provisions that had been omitted but that the user wants in the document.

All told, what interests me most about BaselineNDA is the snapshot summary it produces and its ability to process an NDA using a customizable Playbook. I’m less interested in the built-in knowledge in the form of standard provisions and the Knowledgebase, as I have my own views on such matters.

Would I use BaselineNDA? That’s too theoretical a question. For one thing, I’m not a practicing lawyer. Even if I were, an answer would depend on my NDA workload and my willingness to either rely on the built-in knowledge or construct my own. I’d also want to know the price, which hasn’t yet been determined.

In any event, I think that BaselineNDA is certainly a worthy addition to the information-technology tools available to those who toil in the contract process; I encourage you to check it out. It’s a tough field, and a number of seemingly plausible entrants are fighting what appears to be a losing battle against inertia. I’ll be checking on the fortunes of BaselineNDA and the Baseline concept generally.

Full post as published by AdamsDrafting on September 20, 2008 (boomark / email).

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