Count Georgia among the states that has now explicitly rejected the controversial (and confounding) inevitable disclosure of trade secrets doctrine.  In Holton v. Physician Oncology Servs, S13A0012 (Ga. May 6, 2013), the Supreme Court of Georgia addressed the doctrine head-on and seemingly put it down for the count.  Florida has yet to explicitly reject or accept the doctrine, and so this case could be instructive for the Sunshine State moving forward.

But what exactly is the inevitable disclosure doctrine? There are two versions: "classic" and "light".  The full-calorie "classic" version, explained in Holton:

enables “a trade secret owner to prevent a former employee from working for
a competitor. . . . by demonstrating the employee’s new job duties will inevitably cause the employee to rely upon knowledge of the former employer’s trade secrets.”

Under this "classic" version the trade secret owner need not show actual evidence that the former employee possesses or intends to disclose trade secrets, and it allows for an independent claim where no noncompete or confidentiality agreements exist.  And if a noncompete or confidentiality agreement does exist, then the doctrine can extend those covenants beyond the effective duration  negotiated by the parties.

This full-bodied version of the inevitable disclosure doctrine provides a powerful tool for trade-secret owners and employers.

The "light" version, as its nomenclature would suggest, is not nearly as powerful. It is not a stand-alone claim untethered from a noncompete, confidentiality  agreement, or statute.  It simply allows a plaintiff to prove "threatened misappropriation," a tort and cause of action under the Uniform Trade Secrets Act (which Florida has adopted, see Fla. Stat. 688.001-009), without showing actual possession of trade secrets.

Now, looking at Holton . . . Holton was sued by his former employer, Vantage, when he took a job with a competitor.  He had signed a noncompete agreement with Vantage (extending only 1 year after leaving), as well as a confidentiality agreement (with a 2 year duration).

Vantage sought a temporary restraining order and an interlocutory injunction based on Holton's alleged (1) violations of the noncompete and confidentiality agreements, (2) violations of Georgia's Trade Secrets Act, and (3) Holton's inevitable disclosure of trade secrets.

Finding Holton's disclosure of trade secrets inevitable based on the similar nature of his former and current employment, the trial court enforced the noncompete and confidentiality agreements for the remainder of their duration, and enjoined Holton from ever using Vantage's trade secrets, thereby dislodging him from his new job position. Vantage presented no evidence that Holton actually possessed trade secrets, nor that he had intended to use Vantage's trade secrets.

Before discussing the substance of the opinion, though, a brief procedural digression is in necessary for the appellate lawyers who surely are thinking about jurisdiction at this point:

[Holton] appealed to the Court of Appeals, which transferred the case to this Court on the grounds that the appeal involves the legality and propriety of equitable relief. See Lee v. Environmental Pest & Termite Control, Inc., 271 Ga. 371 (1) (516 SE2d 76 (1999).

Georgia's constitution gives its Supreme Court pass-through jurisdiction when "the propriety of equitable relief is a substantive issue on appeal."  Elec. Data Sys. Corp. v. Heinemann, 268 Ga. 755, 756, 493 S.E.2d 132, 134 (1997).  

This equity jurisdiction is similar to Florida's pass-through jurisdiction under art. V, § 3(b)(5) of the Florida Constitution, which gives the Supreme Court direct review when an issue is certified by the lower courts as one of "great public importance."  But Georgia's equity jurisdiction looks much narrower; many of the cases involve trade secrets and noncompetes. Interesting stuff.

And now, back to the substance of the opinion. The Georgia Supreme Court explicitly rejected the "classic", full-bodied inevitable disclosure doctrine:

In this case, we hold that the inevitable disclosure doctrine is not an independent claim under which a trial court may enjoin an employee from working for an employer or disclosing trade secrets. Therefore, we reverse the part of the trial order relying on the inevitable disclosure doctrine to enjoin Holton from working for ROSA or disclosing trade secrets and other confidential information.

In other words, simply showing inevitability is not enough to stop someone from working with a competitor.  In Georgia, you need a contractual or statutory basis for the injunction, and you need to show evidence that the former employee in fact possesses trade secrets or has the intent to disclose known secrets.

This removes a significant weapon from trade secret owners's arsenals, and is a serious boon to employee mobility in Georgia.  But trade secret owners take heart -- inevitable disclosure doctrine "light" may still exist in Georgia:

Because it appears that the trial court did not reach Vantage’s claim for actual or threatened misappropriation of trade secrets and the case returns to the trial court for a final adjudication on the merits, we decline to address today whether the inevitable disclosure doctrine may be applied to support a claim for the threatened misappropriation of trade secrets.

So, what about us here in Florida? Currently, Florida law does not recognize either version of the inevitable disclosure doctrine, nor has it had an opportunity to do so.  See Del Monte Fresh Produce Co. v. Dole food Co., Inc., 148 F. Supp. 2d 1326 (S.D. Fla. 2001).  This issue will be one of first impression when it comes up in our Sunshine State, and based on the lack of precedent, Holton will surely be instructive.  As goes Georgia, so goes Florida?