Wisk Aero LLC v. Archer Aviation Inc.

Background

This order resolves a discovery-related dispute at Docket No. 151. The dispute concerned two questions about requests to file materials under seal. First, the court considered whether a party must challenge a confidentiality designation under the protective order before opposing a motion to file the material under seal. Second, it considered whether a party may oppose a sealing motion that it technically filed because another party’s confidentiality designation required it to file the motion.

Rulings

The court ruled that challenging a confidentiality designation is not a prerequisite to opposing a motion to file documents under seal. The protective order governs the parties’ interactions during discovery, while sealing requests concern what may be filed on the court’s public docket; the court found no rule making one step necessary before the other.

The court also ruled that a party may oppose a sealing motion that it filed when the filing was required because of another party’s confidentiality designation. The court explained that the local rules require parties to seek sealing of their own filings when those filings contain information designated confidential by another party, while also permitting parties to oppose sealing motions. Reading the rules to prohibit opposition in that situation would unfairly penalize a party for filing a motion it was required to file. The court ordered that a party wishing to oppose its own motion under Civil Local Rule 79-5(e) must state that opposition and its grounds in the initial motion. The provided opinion text begins describing a separate procedure for an unforeseen ground for sealing, but that portion is incomplete.

Meet-and-Confer Requirement

The court agreed with Wisk that the parties must confer before making these filings. It ordered counsel for both parties to hold a good-faith, in-person or video meeting before either party files a motion to seal, a declaration supporting the other party’s sealing motion, or an opposition to a sealing motion. The meeting must address whether sealing is truly necessary and should be used to minimize disputes brought to the court. Each filing must include a sworn declaration from both counsel stating that the meeting occurred and how much time was spent discussing the sealing dispute.

Effect of the Order

This was a procedural order about discovery and public filing practices. It did not decide the underlying claims in Wisk’s case against Archer. Judge William H. Orrick entered the order on September 30, 2021.