WHAT COMEY JUST REMINDED US ABOUT CONTEMPORANEOUS NOTES IN BUSINESS

The legal benefits of contemporaneous notes are not confined to public officials. Companies should have steadfast routines for documenting inventions and other business developments. Further, employers and employees can garner substantial benefits from memorializing events and communications in near real time. Such memoranda and notes often carry probative (i.e. evidentiary) weight before a court.*

Why document?
NDAs

Let's take one of the most common agreements as an example for practical purposes. You are likely familiar with Non-Disclosure Agreements (NDA). An NDA contemplates the exchange of information which is sensitive and should not be used for any other purpose but for what has been expressly provided in the NDA. One of the most critical risks, for the party receiving confidential information from a disclosing party is that such disclosing party will disclose information already possessed or otherwise known by the receiving party. In such case, if the receiving party cannot prove pre-existing knowledge or development of the information, the receiving party will have effectively become contaminated and such pre-existing knowledge and/or developments can be fatally compromised.

Patents

In some countries, such as the United States, it is not the first to register but rather the first to invent and/or reduce to the invention to practice that obtains patent protection. In some cases, two patent applications for the same patent can be submitted around the same time. The first to conceive and/or reduce to practice will, therefore, be awarded the patent. So, again, how does one effectively prove being first? The answer is by being able to present legally credible contemporaneous notes which corroborate the invention having taking place, the date of conception, and also the date when the idea was first turned into a physical object or specific process- referred to as "reduction to practice.".

Trade Secrets

Trade secrets are not a monopoly. As such, if one party owns a trade secret and such trade secret is independently developed by another party, that latter party has the right to freely exploit its own trade secret. There is one "if" however. If the former party challenges the latter party's right, that latter party will have to be able to establish its own development of such secret. This hurdle can be overcome, again, by having credible contemporaneous notes.

Wrongful termination

A terminated employee may assert a wrongful termination claim against it's previous employer if the employment agreement was terminated in a manner or on a basis which contravenes one or more provisions of the employment agreement or under statutory law. As such the employer and employee will each present conflicting versions of the facts in order to make their respective case. Contemporaneous notes in this context can be invaluable for the employer in adducing employee conduct which gave rise to legitimate grounds for termination. Conversely, the terminated employee will benefit from his/her contemporaneous notes which establish employer conduct which contravenes applicable law or which otherwise contradicts the employer's stated grounds for termination. For instance, should an employee have compiled records of communications (oral and written) from management wherein the employee was praised for his/her job performance and results, this will contradict the employer's claim that the employee was terminated for repeated insubordination and failure to follow company policies.

How to document?

The more credible the documentation, the better. Credible documentation includes hallmarks of legitimacy such as being in a bound book (so pages cannot be inserted later); being sequential from the date of first conception through the various iterations of testing, changing and accepting (all without major space gaps being present in the book); being handwritten, being date stamped or logged in some verifiable way, and being witnessed by a third party who dates and signs the entry contemporaneously when the notes were produced.

Further, any documents that can be stored electronically should be logged in a manner capturing the date of entry and verifying (compellingly) that no modifications of the originally logged material have been subsequently made.

*Disclaimer

This article should not be construed as legal advice of any kind and does not create an attorney-client relationship.