Drafting Non-Disclosure Agreements (NDAs) in Michigan: Best Practices for Protecting Trade Secrets

Apr 30, 2025 | Muskegon Attorneys

Every growing company runs on ideas—product formulas, customer lists, marketing strategies, and other information that gives you an edge. Once that information slips outside your walls, it loses value fast, and so do your competitive advantages. That’s why Non‑Disclosure Agreements (NDAs) are your first line of defense. An NDA creates a legally binding assurance that whoever receives your confidential information keeps it secret and uses it only for the limited purpose you authorize.

However, drafting an NDA that truly holds up in court and covers all legal bases requires more than downloading a boilerplate contract online. You need a robust contractual framework that spells out exactly what information is confidential, how long the duty of secrecy lasts, and what happens when the duty is breached. Without that clear framework, even the most loyal employee or vendor can misunderstand the rules and expose your trade secrets—sometimes accidentally, sometimes not.

Let our local Muskegon business lawyer discuss what makes an NDA enforceable in Michigan and how you can draft one that truly protects your business.

Key Elements of a Strong NDA in Michigan

Courts scrutinize NDAs for clarity, reasonableness, and consistency with the Michigan Uniform Trade Secrets Act (MUTSA), so each element must be drafted with care. Here are the essential components your agreement should cover:

    • Definition of Confidential Information

Be specific. Don’t just say “all business information.” Instead, spell out what counts as confidential—customer lists, financial data, proprietary formulas, marketing strategies, etc. The more clearly you define the information, the easier it will be to enforce your rights if the contract is breached.

    • Scope of Use and Disclosure

Michigan law respects reasonable restrictions. Limit who can access the information and under what circumstances. Will it be shared verbally, in writing, or electronically? Will it be used only for a particular project or purpose? The scope must be tight enough to protect your business but not so narrow that it becomes impractical.

    • Duration of the Obligation

NDAs should state how long the information must remain confidential. Some secrets may lose their value after a year, while others—like customer databases or recipes—might need to stay protected indefinitely. Muskegon courts generally enforce reasonable time limits that reflect the nature of the information.

    • Exclusions and Carve‑Outs

Standard carve‑outs keep your NDA enforceable. Common exclusions include data already in the public domain, information the recipient lawfully obtained before signing, and disclosures compelled by court order. These carve‑outs show a Michigan judge that your agreement balances protection with fairness.

    • Return or Destruction of Materials

Require the recipient to return or securely destroy all confidential documents and any copies—paper and electronic—once the project ends or on demand. Include the right to request a certification of destruction, which can be pivotal evidence in later litigation.

    • Remedies and Enforcement

Courts have broad discretion to award damages and injunctive relief for trade secret misappropriation. Still, it is best to state the available remedies in the NDA itself—temporary restraining orders, preliminary or permanent injunctions, recovery of attorney fees, and, where appropriate, liquidated damages. 

A qualified Muskegon business lawyer can help you draft an NDA that employs clear language and aligns with the local laws, ensuring you’re protected if someone breaks the agreement.

Common Pitfalls in NDA Drafting and How to Avoid Them

Not all NDAs offer solid protection. In fact, poorly drafted NDAs can do more harm than good. Here are some common mistakes and how to avoid them:

Infographic image of common pitfalls in drafting NDAS

    • Overly Broad Language

Courts are wary of NDAs that try to protect everything under the sun. If your scope covers information the recipient already knows or could discover on their own, you risk rendering the entire clause unenforceable. Focus on genuine trade secrets and proprietary data. 

    • Unreasonable Time Limits

Some templates impose perpetual secrecy on all disclosed data, including information that might soon be publicly released. Courts may call that unfair restraint. For true trade secrets, keep obligations indefinite, while for less sensitive data, impose a realistic sunset clause.

    • Forgetting Digital Security Duties

An NDA should require recipients to use commercially reasonable measures to safeguard electronic files—strong passwords, encrypted drives, or limited‑access servers. Courts weigh your own protective steps when deciding if a trade secret deserves protection.

    • Missing Mutuality

Many collaborations involve two‑way exchanges. If you draft a one‑sided NDA when both parties swap proprietary data, the other side might later claim the contract is unconscionable. Mutual agreements build goodwill and eliminate arguments that the contract lacked consideration.

    • Ignoring Third‑Party Disclosures

Vendors often subcontract parts of their work. If your NDA is silent about downstream disclosures, your trade secret might leak. Require written consent before the recipient shares information with any third party, and demand that every subcontractor sign an equal or stricter NDA.

    • No Exit Strategy

Parties often walk away from a deal and leave confidential materials behind. Months later, those files might surface in a competitor proposal. Include a mandatory return‑or‑destroy provision triggered automatically at the end of the business relationship.

Avoiding these pitfalls is easier when you have a competent non‑disclosure agreement lawyer who can review each clause with vigilance. The cost of legal representation is minimal compared to the fallout of a trade‑secret leak.

Secure Your Business’s Future with Expert NDA Drafting

Trade secrets are often the most valuable assets you possess and the lifeblood of your business. Don’t leave your competitive edge unprotected—or worse, rely on generic templates downloaded from the Internet that won’t hold up when it matters most. Let Bowen Hoogstra Law help you create a robust NDA your company deserves. 

Our experienced non‑disclosure agreement lawyers stand ready to evaluate your current agreements, patch vulnerabilities, and draft new documents that close gaps you might not even know exist. Contact us today at (231) 726-4484 or here to schedule a consultation and safeguard the future of your business with NDAs you can count on.

DISCLAIMER:

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only.

Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

If you have legal questions, please contact us at: (231) 726-4484

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Disclaimer:

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only.

Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

If you have legal questions, please contact us at:
(231) 726-4484

Muskegon Business Law Attorneys of David T. Bowen, P.C. and Jonathan R. Hoogstra pursue cases of Business Law, Real Estate, and Estate Planning in Muskegon Michigan

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