Wisk Aero LLC v. Archer Aviation Inc.

Background

Wisk filed a joint discovery letter asking for leave to move to compel Archer to supplement its document production under Federal Rule of Civil Procedure 26(e). The requested documents concerned the continued development of Archer’s production aircraft.

The court had previously set a September 7, 2022 deadline for discovery disputes but allowed the parties to seek permission to raise later disputes through a joint letter. To obtain permission, the requesting party had to show that the dispute was critical to trial—meaning the issue was so central that the party would otherwise try to raise it through a motion in limine.

Court’s Analysis

Wisk acknowledged that the documents at issue were recently created. It argued that Rule 26(e) required Archer to supplement its production with responsive documents regardless of when the documents were created.

The court rejected that reading. It explained that Rule 26(e)’s duty to supplement applies to documents generated during the relevant period that were not initially produced but were later discovered. The rule does not impose an ongoing obligation to produce documents continuously as they are created after discovery closes. The court also noted that the continued accumulation of similar responsive documents does not automatically make an earlier production materially incomplete or incorrect.

The court found that Wisk had not shown either that the dispute was critical to trial or that Archer’s production was materially incomplete or incorrect.

Disposition

The court denied Wisk’s motion for leave to move to compel production of documents concerning the development of Archer’s aircraft. Judge William Orrick entered the order on June 14, 2023.