Wisk Aero LLC v. Archer Aviation Inc.

Background

Archer challenged Wisk's clawback of portions of three documents: one sentence in a November 2020 presentation to Wisk's Board of Managers, comments related to that presentation, and portions of two slides in a June 2021 funding-request presentation. Wisk had initially produced the documents in full and later asserted attorney-client privilege over the disputed excerpts. Archer argued that the excerpts were not privileged and that Wisk had waived any privilege. Archer asked the court to require Wisk to submit unredacted versions for in camera review, meaning a private examination by the judge.

Privilege-review standard

The court applied Ninth Circuit authority requiring the party claiming privilege to make a preliminary showing that the privilege protects the withheld information. The party challenging privilege need not initially prove that the privilege fails. Instead, it must provide enough facts to support a reasonable, good-faith belief that private review may reveal nonprivileged information. Whether to conduct that review is then within the district court's discretion.

Wisk submitted a privilege log and a declaration from its general counsel, Greg Bibbes. The declaration stated that the two slides he authored were intended to communicate legal advice to Wisk's Board and that the November 2020 presentation and comments reflected legal advice on the same subject. The court found that this was enough to make the required preliminary showing that attorney-client privilege might apply.

Court's analysis

The court nevertheless found that Archer had supplied enough factual support for private review. Based on the unredacted portions, the November 2020 presentation and the June 2021 funding-request presentation appeared to have substantial business purposes. The court said the withheld communications might therefore be dual-purpose communications—communications involving both legal and business purposes—subject to the primary-purpose test. The court also noted that the available material concerning the comments did not suggest that anyone had asked Bibbes for legal advice about preparing the Board presentation.

The court rejected Wisk's concern that submitting the documents for private review would itself waive privilege. It explained that the cited authority involved a waiver based on improperly using privilege as both a shield and a sword and disclosing privileged documents to people unconnected to the litigation; it did not find waiver merely from submitting documents for private review.

Disposition

The court ordered Wisk to lodge complete, unredacted exemplar versions of the three documents for in camera review by November 9, 2022. It vacated the November 10 hearing on Archer's motion and stated that it would issue a written order or provide further instructions after completing its review. The order directed further review and did not state a final ruling on whether the disputed excerpts were privileged or whether privilege had been waived.