Wisk Aero LLC v. Archer Aviation Inc.

Background

Wisk sued Archer over alleged trade-secret misappropriation and patent infringement involving electronic vertical takeoff and landing aircraft. Wisk alleged that Archer’s aircraft design resembled Wisk’s design and that a former Wisk engineer downloaded Wisk files before joining Archer.

Archer’s counsel hired FTI Consulting to investigate whether Wisk’s trade secrets or confidential information appeared on Archer’s systems and devices. In opposing Wisk’s request for a preliminary injunction, Archer disclosed some results of FTI’s investigation, including that FTI found no Wisk files on Archer’s network or Archer work devices. Archer later produced redacted versions of an FTI investigation presentation and Atlas Crest board meeting minutes discussing the investigation. Archer initially asserted attorney-client privilege and work-product protection over the redacted portions.

After a hearing on Wisk’s motion to compel, Archer withdrew its privilege and work-product claims and produced unredacted versions of the two documents. The parties continued to dispute whether Archer’s earlier disclosures waived protection over related information and what additional discovery Wisk should receive.

Attorney-Client Privilege

The court held that Archer failed to establish that attorney-client privilege protected the redacted portions of the May 27 and June 2, 2021 board meeting minutes. Although lawyers and people associated with law firms apparently attended the meetings, Archer did not provide enough evidence showing that the redacted communications were confidential communications made for the purpose of obtaining legal advice. The court therefore did not reach whether Archer had waived attorney-client privilege.

Work-Product Protection and Waiver

The work-product doctrine generally protects documents and tangible things prepared by or for a party or its representative in anticipation of litigation. The court concluded that FTI prepared the investigation presentation as Archer’s agent to defend against Wisk’s lawsuit. The presentation and the board-meeting minutes reflecting FTI’s investigation were therefore protected by the work-product doctrine.

The court then found that Archer waived work-product protection over information about the investigation that it voluntarily disclosed during the litigation. Archer had disclosed favorable information about FTI’s investigation while withholding information about FTI’s examination of three Archer employees’ personal devices. Because the disclosed and undisclosed information concerned the same investigation and fairness required considering them together, the waiver extended to the related factual information that Archer had originally withheld.

The waiver did not extend to opinion work product—material revealing counsel’s mental impressions, conclusions, opinions, or legal theories. Wisk had not shown a compelling need for that material, and the record did not show that Archer had disclosed opinion work product.

Order

The court ordered Archer to make its FTI expert, Harrison, available for four additional hours of remote deposition testimony concerning the investigation. Archer also had to produce all forensic artifact reports generated during the investigation and any documents or communications that Harrison considered during the investigation or relied on or considered in preparing his declaration, including materials provided by Archer’s counsel, if they had not already been produced. Archer could withhold opinion work product and redact information revealing counsel’s mental impressions, conclusions, opinions, or legal theories.

The court ordered Archer to make Marius available for one additional hour of deposition testimony. It denied without prejudice Wisk’s request for four additional hours of Marius’s deposition because Wisk had not shown that the additional time was warranted by Archer’s work-product waiver.

The court’s final disposition was that Wisk’s motion to compel was granted in part and denied in part.