Moreover, the court has its doubts concerning digEcor and e.Digital’s expectations about
the continuing enforceability of the covenant not to compete. It is apparent that little care was
taken in drafting and proofreading the 2002 NDA’s non-compete provision. Also, when the
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parties documented their business relationship in the October 22 Agreement, which expressly
superceded all prior written and oral agreements on the same subject matter, they did not include
a covenant not to compete. One would expect that, given the importance digEcor now attaches
to e.Digital’s ability to compete, digEcor would have insisted that a non-compete provision be
included in the October 22 Agreement, even if doing so seemed overly cautious or not
technically necessary. While the court need not, and does not, reach e.Digital’s renewed
argument that the October 22 Agreement voided all provisions of the 2002 NDA, this issue
weighs against digEcor’s argument that its reasonable expectations would be frustrated if the
non-compete is not enforced.
