Wisk Aero LLC v. Archer Aviation Inc.

Background

Wisk asserts claims against Archer for misappropriation of trade secrets and patent infringement related to electric vertical takeoff and landing aircraft. Archer sought discovery concerning Wisk’s aircraft-design decisions and communications. The dispute concerned three documents: a sentence in a November 2020 presentation to Wisk’s Board of Managers, comments on that presentation, and portions of a June 2021 funding-request presentation.

Wisk had initially produced the documents in full but later took back the disputed portions, claiming attorney-client privilege. Greg Bibbes, Wisk’s general counsel, authored the material. Archer challenged the privilege claim and moved to compel production. The court ordered Wisk to submit unredacted versions for private judicial review.

Legal Standard

Attorney-client privilege protects confidential communications between a client and lawyer made for the purpose of obtaining or providing legal advice. The party asserting the privilege must show that the communication’s primary purpose was legal advice rather than business advice. Communications involving in-house counsel receive heightened scrutiny because in-house lawyers may participate in both legal matters and business activities.

Privilege Ruling

The court concluded that the documents were created in settings with clear business purposes. The disputed sentence in the November 2020 Board Deck described a logistical step needed to implement a planned business change. Wisk did not show that the communication addressed a specific legal problem, that someone had requested legal advice, or that the communication would not have been made without the privilege.

The comments to the Board Deck likewise discussed a necessary business step and whether to mention it in a business presentation. The court found that the comments did not contain a request for legal advice or provide legal advice.

The June 2021 Funding Request concerned the need for additional funding for a new business plan. Although the redacted slides identified amendments to agreements needed to carry out that plan, the court found that Wisk had not shown that the primary purpose of the communications was legal advice. The court therefore concluded that Wisk had not established attorney-client privilege over the disputed material.

Alleged Misuse and Fees

Wisk argued that Archer had acted improperly by quoting from the comments in a draft joint discovery letter and by later circulating a redlined version showing the deleted text. The court found no improper conduct. It concluded that the comments did not obviously contain privileged communications, that Archer’s counsel appropriately removed the disputed material after Wisk asserted privilege, and that circulation of the redlined version was inadvertent and limited to Wisk and Archer’s counsel. The court also denied Archer’s request for attorneys’ fees and costs for opposing Wisk’s earlier discovery letter.

Disposition

The court granted in part and denied in part Archer’s motion to compel. It ordered Wisk to produce unredacted copies of the November 2020 Board Deck, the comments to that deck, and the June 2021 Funding Request within three days of the order.