How to Negotiate a Confidentiality Agreement

Alan Carson is suing his former employers at Obor Digital, LLC claiming that the employment agreement he signed with them was overly restrictive. Among the complaints against Obor is that the agreement required Mr. Carson to agree to a completely vague and overly broad non-disclosure agreement regarding confidential information. Indeed, the agreement did not specify what would actually qualify as confidential information.

The agreement also required that Mr. Carson refrain from disclosing such information in perpetuity, a violation of Georgia law unless the confidential information involves trade secrets. While Obor Digital is based in Florida, the case is being decided strictly according to Georgia law since Mr. Carson worked in Georgia for the company and continued to reside in the state of Georgia throughout his employment.

This case shows just how difficult it can be to create a confidentiality agreement that is actually enforceable. Such agreements require more than simply writing that the employee or potential employee cannot disclose any information from any source from a quick meeting to the entire span of employment at your company.

Even if you specify that the agreement applies exclusively to confidential information and not to more generalized information (for example, you probably don’t care if your employee discloses that you like your coffee with milk and sugar), you need to specify exactly what would constitute confidential information. These kinds of agreements are especially important when you are dealing with trade secrets that have not yet been patented.

If your business needs to draft a confidentiality agreement, it is vital that you work with a qualified Georgia business lawyer who understands the law and who can craft a document that is enforceable in court. Don’t try this at home.