Wisk Aero LLC v. Archer Aviation Inc.

[1] 2 ***PUBLIC REDACTED VERSION*** [3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 WISK AERO LLC, Case No. 21-cv-02450-WHO (DMR) 8 Plaintiff, ORDER TO SUBMIT DOCUMENTS 9 v. FOR IN CAMERA REVIEW 10 ARCHER AVIATION INC., Re: Dkt. No. 307 11 Defendant. 12 Defendant Archer Aviation Inc. (“Archer”) filed a motion challenging Plaintiff Wisk Aero 13 LLC’s (“Wisk”) clawback of three documents. [Docket No. 307.] Wisk originally produced the 14 documents in full but later clawed back portions of them asserting protection under the attorney 15 client privilege. The disputed excerpts are: 1) a single sentence within a 38-page slide deck 16 presented to Wisk’s Board of Managers, dated November 2, 2020 (the “November 2020 Board 17 Deck”); 2) a set of comments to the November 2020 Board Deck (the “Comments”); and 3) parts 18 of two slides from a June 2021 slide deck entitled, “Wisk Funding Request” (the “June 2021 19 Funding Request”). [Docket No. 307-1 (Thomasch Decl. Aug. 11, 2022) ¶ 2, Exs. 1 at -615 (Nov. 20 2020 Board Deck); 2 at -194 (Comments to Board Deck); 3 at -822-823 (June 2021 Funding 21 Request).]1 22 Archer challenges the assertion of privilege and further argues that even if the excerpts are 23 subject to attorney client privilege, Wisk has waived it. Archer seeks an order requiring Wisk to 24 lodge unredacted versions of the documents for in camera review pursuant to Rule 26(b)(5)(B), 25 which provides that a party challenging a clawback “may promptly present the information to the 26 court under seal for a determination of the claim.” Mot. 10. Wisk argues that Archer has not [27] 1 shown a basis for in camera review under applicable Ninth Circuit authority. Opp’n 7-8.2 2 In re Grand Jury Investigation, 974 F.2d 1068, 1074-75 (9th Cir. 1992), established the 3 standard that a party must meet in order to seek in camera review of contested assertions of 4 privilege. The Ninth Circuit acknowledged that “[a]lthough in camera review of documents does 5 not destroy the attorney-client privilege, it is an intrusion which must be justified.” Id. at 1074 . 6 First, “the party asserting the privilege must make a prima facie showing that the privilege protects 7 the information the party intends to withhold.” Id. at 1071 . The court explicitly clarified that the 8 challenging party need not make a prima facie showing that the privilege does not apply. Id. at 9 1074. Rather, a party opposing a claim of attorney-client privilege “need only show a factual basis 10 sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence 11 that information in the materials is not privileged.” Id. at 1075 . The Ninth Circuit described this 12 standard as a “minimal threshold.” Id. at 1074 . Once the challenging party makes that initial 13 showing, “the decision whether to conduct the review rests within the discretion of the district 14 court.” Id. at 1075 . 15 Here, Wisk presented a privilege log for the clawed-back material. LaFond Decl. ¶ 9, Ex. 16 1. It also submitted a declaration by its General Counsel, Greg Bibbes, in which he states that 17 “[t]he sole purpose of the two slides [he] authored” in the June 2021 Funding Request “was to 18 communicate [his] legal advice to Wisk’s Board on a matter of relevance to the presentation,” and 19 that the November 2020 Board Deck and Comments “reflect[ ] the substance of [his] legal advice” 20 that had been given to Wisk’s Board and executive team “on the same subject matter as the two 21 slides” in the June 2021 Funding Request. [Docket No. 314-1 (Bibbes Decl. Aug. 25, 2022) ¶¶ 10, [23] 2 Wisk also appears to express a concern that consenting to in camera review of the clawed-back materials would risk effecting a waiver of the privilege, citing Apple Inc. v. Samsung Elecs. Co., [24] 306 F.R.D. 234, 241 (N.D. Cal. 2015). Opp’n 8. This concern is unfounded. In Apple, the court found that the defendant had established that privilege attached to each document submitted for in [25] camera review, but that it had effected a waiver “[i]mproperly invoking privilege as a shield and a sword” in connection with sanctions proceedings related to its breach of a protective order. Id. at [26] 241-44. The defendant had also disclosed privileged documents to “many individuals with no apparent connection to [the] litigation. Id. at 244 . The court did not find that submitting the [27] documents for in camera review alone effected a waiver of the privilege. See also United States v. 1 12, 13.] This is sufficient to make a prima facie showing that the attorney-client privilege applies 2 to the clawed-back portions of the three documents. See In re Grand Jury Investigation, 974 F.2d 3 at 1071 . Therefore, Archer must “establish a sufficient factual basis for the court to conduct an in 4 camera inspection.” Id. at 1075. 5 The court concludes that it has. The November 2020 Board Deck is a [8] 9 Id. at -599-601. It 10 describes 11 Id. at -605, 609, 610, 613. The actual 12 communication at issue is in a 13 Id. at -615. Archer contends that this 14 presentation reflects Wisk’s [15] 16 Mot. 6. It further argues that 17 “would be nothing more than a ‘mechanical step[ ] that must be 18 implemented’ ” and thus Bibbes’ 19 communications on that point are not privileged. Id. at 7 (quoting In re Currency Conversion 20 Antitrust Litig., No. 05 CIV. 7116 WHP THK, 2010 WL 4365548 , at *9 (S.D.N.Y. Nov. 3, 2010)). 21 In any event, it appears that there is “a clear business purpose in the environment” in which the 22 purportedly privileged communication by Bibbes occurred. See McCaugherty v. Siffermann, 132 23 F.R.D. 234, 238 (N.D. Cal. 1990). Therefore, the clawed-back portions of the document may have 24 been dual-purpose communications, subject to the primary purpose test. See In re Grand Jury, 23 25 F.4th 1088 , 1091 (9th Cir. 2021). As to the Comments related to the preparation of the November 26 2020 Board Deck, nothing in them suggests that anyone asked Bibbes for legal advice regarding 27 the task of preparing that presentation to the Board.. See Comments -194. | June 2021 Funding Request -815. It 2 || ceVic Ws aaa 3 || SE 20d other financial analyses. /d. at -817-21. The two slides containing 4 clawed-back materials, /d. at -822-23, appear under a section entitled, xy S| 6 || EE These slides are within a larger document that appears to have a clear business 7 pups ¢— S| 9 The foregoing evidence suggests that the clawed-back portions of the three documents at 10 || issue may have been dual-purpose communications. Based on the unredacted portions of those 11 documents, the court finds that Archer has shown “a factual basis sufficient to support a 12 || reasonable, good faith belief that in camera inspection may reveal evidence” that the primary 13 purpose of the communications was to provide business as opposed to legal advice. It further v 14 || concludes that in camera review of the unredacted versions of the three documents is appropriate. 15 || See McCaugherty, 132 F.R.D. at 238 (“No privilege can attach to any communication as to which a 16 a business purpose would have served as a sufficient cause, 1.e., any communication that would = 17 have been made because of a business purpose, even if there had been no perceived additional 18 || interest in securing legal advice.”). 19 Accordingly, Wisk shall lodge complete, unredacted versions of exemplar versions of the 20 three documents for in camera review by November 9, 2022. The November 10, 2022 hearing on 21 Archer’s motion is vacated. The court will issue a written order or give further instructions upon 22 || completion of its review of the documents. NIST) 23 KD OS 24 IT IS SO ORDERED. LS) □□ sO OR 25 || Dated: November 7, 2022 2INir is ~ < 26 LA Fy = □ Z PS osfilMl. Ry, Rye. fac a’ vie 27 BD AG) ae cates 28 Oe | oy ‘ Oo. ©