Case 3:21-cv-02450-WHO Document 459 Filed 03/22/23 Page 1 of 53
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`GIBSON, DUNN & CRUTCHER LLP
`Josh A. Krevitt, SBN 208552
` jkrevitt@gibsondunn.com
`1881 Page Mill Road
`Palo Alto, CA 94304-1211
`Telephone: 650.849.5300
`Facsimile: 650.849.5333
`Daniel J. Thomasch, admitted pro hac vice
` dthomasch@gibsondunn.com
`Paul Torchia, admitted pro hac vice
` ptorchia@gibsondunn.com
`200 Park Avenue
`New York, NY 10166-0193
`Telephone: 212.351.4000
`Facsimile: 212.351.4035
`Wayne Barsky, SBN 116731
` wbarsky@gibsondunn.com
`Michael H. Dore, SBN 227442
` mdore@gibsondunn.com
`Diana M. Feinstein, admitted pro hac vice
` dfeinstein@gibsondunn.com
`2029 Century Park East, Suite 4000
`Los Angeles, CA 90067-3026
`Telephone: 310.552.8500
`Facsimile: 310.551.8741
`Attorneys for Defendant and Counterclaimant
`Archer Aviation Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`WISK AERO LLC,
`
`Plaintiff,
`
`v.
`ARCHER AVIATION INC.,
`Defendant.
`
`CASE NO. 3:21-CV-02450-WHO
`MOTION FOR SUMMARY JUDGMENT
`Hearing Date: May 12, 2023
`Hearing Time: 3:00 PM
`Hon. William H. Orrick III
`
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`DEFENDANT ARCHER AVIATION INC.’S MOTION FOR SUMMARY JUDGMENT
`CASE NO. 3:21-CV-02450-WHO
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`Case 3:21-cv-02450-WHO Document 459 Filed 03/22/23 Page 2 of 53
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`TO PLAINTIFF WISK AERO LLC AND ITS COUNSEL OF RECORD:
`PLEASE TAKE NOTICE that on May 12, 2023 at 3:00 PM, or as soon thereafter as the matter
`may be heard, in the courtroom of the Honorable William H. Orrick at the United States District Court
`for the Northern District of California, 450 Golden Gate Avenue, San Francisco, California, Defendant
`Archer Aviation Inc. (“Archer”) will and hereby does move the Court for summary judgment pursuant
`to Federal Rule of Civil Procedure 56 on the First, Second, Fourth, and Fifth Causes of Action in Wisk’s
`Second Amended Complaint, which allege misappropriation of trade secrets under federal and
`California law, and infringement of U.S. Patent No. 10,110,033 (“the ‘033 Patent”) and U.S. Patent
`No. 9,764,833 (“the ‘833 Patent”).
`Archer’s Motion seeks the following relief, as set forth in the Proposed Order submitted with
`this Motion: An order granting summary judgment for Archer on the First and Second Causes of
`Action of Wisk’s Second Amended Complaint on the grounds that, for each trade secret, Archer did
`not misappropriate that trade secret or, in the alternative, that each trade secret does not qualify for
`trade secret protection; and an order granting summary judgment for Archer on the Fourth and Fifth
`Causes of Action of Wisk’s Second Amended Complaint on the ground that Archer does not infringe
`any asserted claim of the ‘033 Patent (with respect to the Midnight production aircraft) or the ‘833
`Patent.
`
`Archer’s Motion is based upon this Motion, the below supporting memorandum of points and
`authorities, the concurrently filed exhibits, affidavits, and declarations, Archer’s forthcoming reply
`brief in support of this motion, and any other written oral argument or submission that Archer may
`submit to the Court.
`
`DATED: March 19, 2023
`
`GIBSON, DUNN & CRUTCHER LLP
`
`By:
`
`
`
`/s/ Josh A. Krevitt
`Josh A. Krevitt
`
`Attorneys for Defendant Archer Aviation Inc.
`
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`DEFENDANT ARCHER AVIATION INC.’S MOTION FOR SUMMARY JUDGMENT
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION .......................................................................................................................... 1 
`
`FACTUAL AND PROCEDURAL BACKGROUND .................................................................... 3 
`
`I.
`
`II.
`
`Archer’s Business and eVTOL Development ......................................................... 3 
`
`Wisk’s Complaint and Motion for Preliminary Injunction ..................................... 4 
`
`III. Wisk’s Trade Secret Disclosure and Archer’s Motion to Strike ............................. 5 
`
`IV.
`
`V.
`
`Fact Discovery Produced to Wisk ........................................................................... 5 
`
`Forensic Evidence Relating to Archer and Personal Devices ................................. 5 
`
`VI. Wisk’s Changing Trade Secret Descriptions .......................................................... 6 
`
`LEGAL STANDARDS ................................................................................................................... 8 
`
`ARGUMENT ................................................................................................................................ 10 
`
`I.
`
`No Trade Secret Liability ...................................................................................... 10 
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
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`Trade Secret 1: Aerodynamic Models Based On High Quality
`Simulation Data ........................................................................................ 11 
`
`Trade Secret 3: Aerodynamic Studies Regarding Lift Fan Locking And
`Stowing ...................................................................................................... 16 
`
`Trade Secret 15: Studies Regarding Advantages Of A Tiltable Rotor
`Design ....................................................................................................... 17 
`
`Trade Secret 12: Motor Optimization Model ............................................ 21 
`
`Trade Secret 17: Motor Control Algorithms and Architecture ................. 25 
`
`Trade Secret 29: Energy Storage System Architecture ............................. 27 
`
`Trade Secret 30: Lithium-Ion Battery Cell Design Studies ....................... 30 
`
`Trade Secret 31: Performance Studies for Typical Mission Profile ......... 33 
`
`Trade Secret 39: High Voltage Connection System Design ...................... 35 
`
`Trade Secret 44: Avionics Architecture and Systems ................................ 39 
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`Case 3:21-cv-02450-WHO Document 459 Filed 03/22/23 Page 4 of 53
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`II.
`
`No Patent Infringement Liability .......................................................................... 43 
`
`A.
`
`B.
`
`‘033 Patent: No Evidence of Infringement by Midnight Production
`Aircraft ...................................................................................................... 43 
`
`‘833 Patent: Noninfringement by All Accused Archer Aircraft ................. 44 
`
`CONCLUSION ............................................................................................................................. 45 
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`CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Aerotec Int’l v. Honeywell Int’l,
`836 F.3d 1171 (9th Cir. 2016) ...................................................................................................10
`
`Am. Airlines v. KLM Royal Dutch Airlines,
`114 F. 3d 108 (8th Cir 1997) .......................................................................................................9
`
`ATS Prod., Inc. v. Champion Fiberglass, Inc.,
`No. 13-CV-2403, 2013 WL 6086924 (N.D. Cal. Nov. 19, 2013).............................................29
`
`BladeRoom Grp. Ltd. v. Facebook, Inc.,
`No. 15-CV-1370-EJD, 2018 WL 514923 (N.D. Cal. Jan. 23, 2018) ........................................29
`
`Calendar Rsch. LLC v. StubHub, Inc.,
`2020 WL 4390391 (C.D. Cal. May 13, 2020) ......................................................................9, 15
`
`ChromaDex, Inc. v. Elysium Health, Inc.,
`301 F. Supp. 3d 963 (C.D. Cal. 2017) ........................................................................................8
`
`Clare v. Chrysler Grp. LLC,
`819 F.3d 1323 (Fed. Cir. 2016) .................................................................................................45
`
`Danjaq LLC v. Sony Corp.,
`1999 WL 317629 (C.D. Cal. Mar. 11, 1999) ............................................................................10
`
`Excelligence Learning Corp. v. Oriental Trading Co.,
`No. 03-CV-4947-JF, 2004 WL 2944048 (N.D. Cal. Dec. 20, 2004) ....................................9, 10
`
`Freeman Inv. Mgmt. Co., LLC v. Frank Russell Co.,
`2016 WL 5719819 (S.D. Cal. Sept. 30, 2016), aff’d, 729 F. App’x 590 (9th Cir. 2018) .....9, 39
`
`GSI Tech., Inc. v. United Memories, Inc.,
`No. 5:13-CV-1081-PSG, 2016 WL 3035699 (N.D. Cal. May 26, 2016) ...................................9
`
`Imax Corp. v. Cinema Techs., Inc.,
`152 F.3d 1161 (9th Cir. 1998) .....................................................................................................9
`
`Jobscience, Inc. v. CVPartners, Inc.,
`No. 13-CV-4519-WHA, 2014 WL 852477 (N.D. Cal. Feb. 28, 2014).......................................8
`
`Les Concierges, Inc. v. Robeson,
`No. 09-CV-1510-MMC, 2009 WL 1138561 (N.D. Cal. Apr. 27, 2009) ............................10, 39
`
`M.A. Mobile Ltd. v. Indian Inst. of Tech. Kharagpur,
`400 F. Supp. 3d 867 (N.D. Cal. 2019) .................................................................................8, 10
`
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`Medgraph, Inc. v. Medtronic, Inc.,
`843 F.3d 942 (Fed. Cir. 2016) .............................................................................................10, 11
`
`O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`420 F. Supp. 2d 1070 (N.D. Cal. 2006), aff’d, 221 F. App’x 996 (Fed. Cir. 2007)..............9, 10
`
`Parallel Networks, LLC v. Abercrombie & Fitch Co.,
`704 F.3d 958 (Fed. Cir. 2013) .............................................................................................15, 18
`
`PMC, Inc. v. Kadisha,
`78 Cal. App. 4th 1368 (2000) ...................................................................................................10
`
`Proofpoint Inc. v. Vade Secure, Inc.,
`No. 19-CV-4238-MMC (RMI), 2021 WL 2197954 (N.D. Cal. June 1, 2021) ...................24, 28
`
`Quintara Biosciences, Inc. v. Ruifeng Biztech Inc.,
`No. 20-CV-4808-WHA, 2021 WL 2166880 (N.D. Cal. May 27, 2021) ....................................8
`
`Sun Distrib. Co., LLC v. Corbett,
`2018 WL 4951966 (S.D. Cal. Oct. 12, 2018) ...........................................................................10
`
`Swarmify, Inc. v. Cloudflare, Inc.,
`No. 17-CV-6957-WHA, 2018 WL 2445515 (N.D. Cal. May 31, 2018) ....................................9
`
`Treehouse Avatar LLC v. Valve Corp.,
`54 F.4th 709 (Fed. Cir. 2022) ....................................................................................................45
`
`VR Optics, LLC v. Peloton Interactive, Inc.,
`No. 2021-1900, 2023 WL 2031213 (Fed. Cir. Feb. 16, 2023) .................................................45
`
`Vt. Microsystems, Inc. v. Autodesk, Inc.,
`88 F.3d 142 (2d Cir. 1996) ..........................................................................................................9
`
`Whyte v. Schlage Lock Co.,
`101 Cal. App. 4th 1443 (2002) .................................................................................................10
`
`STATUTES
`
`18 U.S.C. § 1839(5) ..........................................................................................................................8
`
`Cal. Civ. Code § 3426.1(b) ...............................................................................................................8
`
`Cal. Civ. Proc. Code § 2019.210 .......................................................................................................8
`
`California Uniform Trade Secrets Act ..............................................................................................8
`
`Federal Defend Trade Secrets Act ....................................................................................................8
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`TREATISES
`
`Restatement (Third) of Unfair Competition § 40 cmt. d (1995) .....................................................10
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`INTRODUCTION
`Wisk brought this case alleging that Archer had engaged in a “brazen theft” designed to “harvest
`as much confidential information as possible” from Wisk, and then “built” its business “on Wisk’s
`intellectual property.” None of that was true. And now, after nearly two years of extraordinary
`discovery, Wisk still has no evidence that anyone at Archer ever used—let alone stole—any one of its
`trade secrets. Summary judgment is warranted.
`Everything Archer has done to design and develop its aircraft is documented; every system,
`subsystem, and component part is identified in detailed drawings. Discovery has rendered Archer’s
`business an open book—Wisk knows exactly how Archer’s aircraft are configured, how they were
`designed and developed, and by whom. Although Wisk asserted that “Archer engineering
`documentation is stunning in its reliance on Wisk’s trade secrets,” and that “the sheer volume of theft”
`was so great that Wisk could not address it all, Wisk cannot now point to any aspect of Archer’s aircraft
`and trace it to any Wisk trade secret. Indeed, forensic examinations prove that Archer has never had
`even a single Wisk document reflecting a single Wisk trade secret, and not a single confidential Wisk
`document has ever been accessed by anyone at Archer.
`That is why the specific allegations of what Archer supposedly stole have vanished, replaced
`by vague accusations about individuals who used to work at Wisk in certain areas (e.g., aerodynamics,
`avionics, batteries) and now do so at Archer and, thus, must have used some Wisk information. But
`intentional theft is a serious charge, requiring real evidence, and Wisk has none. Instead, to create the
`impression of a claim, Wisk relies entirely on innuendo, speculation, and allegations of widespread
`perjury—none of which is, or can substitute for, actual evidence, or create a genuine dispute for a jury.
`Wisk’s own experts all but concede there was no use of any Wisk trade secret. While Wisk
`accuses Archer of misappropriating certain “studies” and “models” (TS 1, 3, 15, 30, 31), Wisk’s experts
`do not identify a single Wisk trade secret study or model ever at Archer, let alone used by Archer.
`While Wisk accuses Archer of misappropriating certain “architectures” (TS 29, 39, 44), Wisk’s experts
`admit that Archer does not use any one of those architectures. While Wisk accuses Archer of
`misappropriating Wisk “algorithms” (TS 17), Wisk’s expert admits that Archer purchased equipment
`that uses that third party’s proprietary algorithms. And, while Wisk accuses Archer of misappropriating
`
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`its motor “simulation tool” (TS 12), Wisk’s expert admits he has never even seen Wisk’s tool, let alone
`compared it to Archer’s, and admits that Wisk’s tool was never used at Archer.
`Wisk waves away these fatal deficiencies in its case with empty conjecture that its former
`employees “had in mind” Wisk information and must have “leveraged” it as a “starting place” for their
`work at Archer—no matter what they actually did at Archer or how different it is from what Wisk has
`done. But evidence that former Wisk employees knew Wisk confidential information is not evidence
`that they used such information, as a “starting place” or otherwise. To get to a jury, Wisk needs
`affirmative, admissible evidence of misappropriation—proof that Archer’s employees knowingly used
`Wisk’s trade secrets at Archer. That is what Wisk is missing; conjecture does not suffice.
`And so, with full access to Archer’s confidential files, Wisk has tried to rewrite its trade secrets.
`Its new descriptions of the trade secrets—on which it bases its claims—bear no resemblance to the
`trade secrets it told the Court it had “meticulously defined” in the 2019.210 Disclosure. Thus, a trade
`secret on Wisk’s “mission profile” performance studies (TS 31) becomes one on
`
` a trade secret on Wisk’s “battery cell design studies” (TS
` trade secrets on “overall” architectures
`30) becomes one on a
`(TS 29, 39, 44) really cover isolated components; and a trade secret on specific aerodynamic models
`(TS 1) becomes one that covers, literally,
`
`
`
`Wisk’s “shifting sands” approach to its trade secrets is not only legally improper, it is exactly
`what Wisk repeatedly told Archer and this Court it would not do. Wisk’s attempted transformation of
`its trade secrets is tantamount to an admission that it has no evidence of misappropriation—and reveals
`that Wisk’s case, from the start, has been nothing more than an accusation in search of evidence. It
`also strips the trade secrets of any discernible scope, rendering them not sufficiently particular, which
`is an independent basis for summary judgment. And, finally, there is no misappropriation in any event
`because the baseless innuendo and speculation on which Wisk entirely relies does not show theft of
`anything by anybody, no matter how Wisk’s trade secrets are defined.
`Wisk also asserts three patents, but only seeks damages as to two: the ‘833 and ‘033. Archer
`does not infringe either, as Wisk’s expert opinions demonstrate. Summary judgment should be granted.
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`I.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`Archer’s Business and eVTOL Development
`Archer was founded in October 2018. Its initial work, including the design of several eVTOL
`configurations, was performed through sponsored research at the University of Florida. Dkt. 58-13
`(Adcock Decl.) ¶¶ 16–19. Beginning in mid-2019, Archer substantially increased its design
`capabilities by retaining third-party consultants to evaluate potential aircraft configurations. Id. ¶ 22.
`In September 2019, Archer hired FlightHouse Engineering (“FHE”) which presented numerous tilting
`aircraft, including the “12-tilt-6” aircraft configuration ultimately chosen for Archer’s demonstrator
`aircraft, the Maker. Id. ¶¶ 23, 29–32, 36–38; Dkt. 58-25 (Hughes Decl.) ¶¶ 16–26.
`Starting in late 2019, Archer moved rapidly to increase its engineering team, including by hiring
`from several other companies, such as Joby, Wisk, and Airbus Vahana. Dkt. 58-13 ¶¶ 44–51. Those
`hires were put through a robust on-boarding process (including the provision of independent legal
`counsel to the on-boarded employees) intended to prevent any competitor proprietary information from
`reaching (or being used at) Archer. Id. ¶¶ 52–60.
`Archer immediately put its newly enhanced team to work to select and build a demonstrator
`aircraft. On February 27, 2020, Archer’s Chief Engineer Dr. Geoff Bower led Archer’s conceptual
`design review for the Maker, which resulted in the selection of a 12-tilt-6 aircraft configuration. Dkt.
`58-20 (Bower Decl.) ¶¶ 18–25. To minimize development time, Archer opted to purchase many of the
`Maker’s key systems from third parties, including the energy storage system (ESS), high voltage
`batteries, motors, and motor controllers. Id. ¶¶ 30–39.1 The Maker is an unmanned demonstrator
`aircraft not intended for FAA certification. Ex. 4 (Goldstein Tr.) at 17:22–18:17.2 In contrast, the
`Midnight is Archer’s production aircraft intended to be certified with the FAA. Ex. 5 (Archer Midnight
`Press Release). The Midnight and the Maker do not share the same systems, and Archer is developing
`in-house the Midnight’s systems, including in relevant part the ESS, high voltage batteries, motors and
`motor controller. Ex. 1 (Bower Tr.) at 18:16–19:13; Ex. 6 (Marius Tr.) at 310:7–10, 409:10–12.
`
`
`1 Nevertheless, it took Archer until December 2021 to complete Maker’s first hover flight, and until
`November 2022 to complete its first full-transition (hover to forward cruise) flight. Ex. 1 (Bower Tr.)
`at 503:15–17; Ex. 2 (Dec. 20, 2021 Archer press release); Ex. 3 (Dec. 1, 2022 Archer Press Release).
`2 All references to “Ex.” are to exhibits appended to the Declaration of Kory Hines.
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`Development for the Midnight kicked off in early 2021, with the bulk of conceptual and preliminary
`design performed after this lawsuit was brought. Ex. 7 (Archer-NDCA-00078461); Ex. 1 (Bower Tr.)
`at 87:5–18. The design, development, and production of the Midnight remains ongoing to this day.
`Bower Decl. ¶ 8. For example, Archer is still selecting, and has not chosen, a battery charging system
`for the Midnight. Id. ¶ 7.
`II. Wisk’s Complaint and Motion for Preliminary Injunction
`Wisk filed this lawsuit on April 6, 2021, claiming Archer engaged in “a brazen theft” of Wisk’s
`intellectual property, and that the “striking resemblance” between a depiction of Maker and a drawing
`of an aircraft that Wisk claimed to have developed “could not have been a coincidence.” Dkt. 1 ¶¶
`1, 6. Wisk pointed to the actions of one former Wisk engineer, alleging that Jing Xue “surreptitiously
`downloaded thousands of files near midnight, shortly before he announced his resignation and
`immediately departed to Archer,” which, according to Wisk, Archer then used “to build its business in
`brazen disregard of Wisk’s intellectual property rights.” Id. ¶¶ 63–70.
`Six weeks after filing the Complaint, Wisk filed a motion for preliminary injunction. Dkt. 16.
`In opposition to Wisk’s motion, Archer refuted each of Wisk’s stated claims. Dkt. 58. Thereafter, as
`the Court later noted, Wisk’s misappropriation theory “in its Reply changed dramatically from its
`Motion.” Dkt. 134 at 27. Wisk’s Reply focused on Archer’s conceptual development of the Maker
`aircraft during “seven weeks” from Dr. Bower’s hiring in January 2020 to the Maker conceptual design
`review on February 27, 2020, and claimed Archer’s engineering documentation from the same period
`was “stunning in its reliance on Wisk’s trade secrets.” Dkt. 92 at 1, 5–6. Although Wisk continued to
`describe Jing Xue as the “poster child for the covert theft of Wisk’s trade secrets,” Wisk also claimed
`that former Wisk employees Diederik Marius, Johnny Melack, and Tom Muniz had stolen Wisk
`documents “to harvest as much confidential information as possible” before joining Archer. Id. at 1–
`2, 3–4. The Court denied Wisk’s preliminary injunction motion, finding that “[d]espite getting robust
`early discovery, including access to engineering documents, Wisk was not able to demonstrate that any
`of its particular asserted trade secrets was misappropriated.” Dkt. 134 at 45.
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`DEFENDANT ARCHER AVIATION INC.’S MOTION FOR SUMMARY JUDGMENT
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`III. Wisk’s Trade Secret Disclosure and Archer’s Motion to Strike
`Wisk provided a Disclosure of Trade Secrets pursuant to Section 2019.210 of the California
`Code of Civil Procedure (the “Disclosure”) identifying 52 purported trade secrets. Dkt. 16-08. Archer
`moved to strike based on the lack of particularity of the trade secret descriptions. Dkt. 50. Wisk argued
`that its trade secrets were “meticulously defined,” and that it had “identified the precise stolen files
`reflecting each one.” Dkt. 63 at 3. Wisk also claimed that the Disclosure “described the trade secret
`information,” “where it could be found,” and “how it could be used.” Dkt. 64 at 12.
`The Court denied Archer’s motion to strike, finding that Wisk’s Disclosure, “though not ideal,
`is sufficient at this early stage.” Dkt. 134 at 18. The Court noted that documents in the Disclosure “are
`examples of embodiments of the trade secret; they are always preceded by the substantive description
`of each trade secret.” Id. at 20 (emphasis added). The Court also noted, “Wisk has pleaded that the
`misappropriated trade secrets are the ones in the Disclosure, a factual and legal assertion,” and “[t]o
`avoid doubt, the trade secrets in the Disclosure in its current form are the only ones that Wisk has
`alleged.” Id. at 23 (emphasis added).
`IV.
`Fact Discovery Produced to Wisk
`Archer has produced to Wisk nearly two million pages of documents from over 50 custodians
`and dozens of other sources. Hines Decl. ¶ 2. Eight of Archer’s outside suppliers and technical
`consultants also produced large volumes of documents to Wisk. Id. Archer also made available for
`Wisk’s review vast quantities of source code, which Wisk spent 300 hours reviewing. Id. ¶ 3. Wisk
`also physically inspected Archer’s aircraft and related components, including battery chargers, flight
`termination system, motor controller boards, battery cells, and energy storage system. Id. Archer
`further provided Wisk with hundreds of pages of responses to 30 interrogatories, spanning topics from
`recruiting communications to detailed technical issues. Id. ¶ 4. Wisk also deposed 15 of Archer’s key
`engineers (some multiple times), its co-founders, a board member, and its head of certification. Id. ¶ 5.
`V.
`Forensic Evidence Relating to Archer and Personal Devices
`Wisk also obtained vast amounts of forensic evidence related to dozens of Archer devices and
`systems, as well as personal devices used by former Wisk employees at Wisk. Id. ¶¶ 6–10. Among
`the devices inspected by Wisk via forensic neutral were 38 personal devices the federal government
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`seized from Jing Xue’s home and returned to Dr. Xue’s counsel after completing its own forensic
`analysis and electing not to move forward with criminal charges. Dkt. 273. The forensic evidence
`reflects no instances of Wisk confidential information at Archer at any time. Ex. 8 (Crain Tr.) at 184:20
`–185:2; Dkt. 58-24 (Harrison Decl.) ¶¶ 1, 2, 5; Ex. 9 (Harrison Rpt.) ¶¶ 40–45, 49.3 The forensic
`evidence also reflects that during his employment at Archer Dr. Xue did not personally retain any of
`the files he downloaded while at Wisk, with the exception of 10 files that neither Wisk nor its experts
`have ever cited for any purpose in this case. Ex. 11 (Crain Rpt.) at Ex. M; Ex. 9 (Harrison Rpt.) ¶¶ 19–
`22. Finally, the forensic evidence reflects that none of the other former Wisk employees accused of
`stealing Wisk files—Diederik Marius, Johnny Melack, and Scott Furman—ever accessed any Wisk
`files that had been inadvertently retained on their personal devices since starting at Archer. Ex. 9
`(Harrison Rpt.) ¶¶ 51–67. The forensic evidence is consistent with each of those former employees’
`unrebutted testimony unequivocally denying any intention to retain Wisk documents and any use of
`Wisk confidential and proprietary information at Archer.4 Wisk’s forensic expert does not dispute any
`of these findings. Ex. 8 (Crain Tr.) at 164:6–14, 176:18–177:17, 179:2–18.
`VI. Wisk’s Changing Trade Secret Descriptions
`After receiving voluminous discovery from Archer, Wisk began to drastically change the scope
`of its trade secrets. Spread over numerous responses to Archer’s interrogatories, Wisk removed
`elements Archer does not use, and added elements to distinguish claimed secrets from public
`references. Archer was left to sift through hundreds of pages of Wisk’s discovery responses trying to
`divine how Wisk altered its trade secrets.
`Archer raised concerns about the shifting scope of Wisk’s trade secrets in multiple letters,
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`3 As Archer showed in opposition to Wisk’s motion for sanctions, Mr. Furman used his Archer laptop
`for access to personal email and online accounts, and as a result, thousands of documents auto-synced
`to his laptop, including several hundred Wisk-related emails, photos and text messages that remained
`in those accounts. Ex. 9 (Harrison Rpt.) ¶¶ 82, 84. Wisk cites only one of those documents in support
`of its misappropriation allegations as to TS 44 (the only one relevant to Mr. Furman), and the forensic
`evidence shows that it was not opened by Mr. Furman while he was an Archer employee. Id. ¶¶ 67,
`75, 82; Dkt. 412 (Harrison Sur-Reply Decl.) ¶¶ 14–16; Ex. 10 (Lighthouse FileFolderActivities
`analysis).
`4 E.g., Ex. 12 (Furman Tr.) at 207:19–24, 236:22–24; Dkt. 260-19 (Melack Decl.) ¶¶ 9(a)–(c), 11; Ex.
`13 (Melack Tr. (7/6/2021)) at 278:18–23; Ex. 14 (Melack Tr.) at 398:1–400:4, 418:23–419:5; Dkt. 260-
`18 (Marius Decl.) ¶¶ 3, 5, 10; Ex. 15 (Marius Tr. (7/6/2021)) at 141:16–143:14, 154:12–157:5; Dkt.
`58-22 (Muniz Decl.) ¶¶ 5, 15–17; Ex. 16 (Muniz Tr. (6/25/21)) at 192:5, 314:14–24.
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`including in May and June 2022. Exs. 17–18. Archer explained that if Wisk wished to alter the scope
`of its trade secrets, it was required to move to amend and show good cause. Id. Wisk never responded
`to Archer’s letters; nor did it move to amend. Hines Decl. ¶ 11.
`Archer also raised its concerns with the Court. Archer explained that “in its discovery
`responses, Wisk makes clear that it is seeking to alter the scope of its trade secrets,” which is improper
`“especially after having open access to Archer’s confidential information.” Dkt. 356 at 2–3 (Fourth
`CMC Statement). At the October 25, 2022, CMC, Archer noted that “if Wisk had wanted to modify
`or alter the scope of trade secrets, it was required to seek leave and show good cause.” Dkt. 376 (Oct.
`25, 2022 CMC Tr.) at 6:13–15. Wisk did not disagree, but assured the Court that, “we haven’t changed
`the scope of our trade secrets.” Dkt. 376 at 6:23–7:1; see also Dkt. 356 at 2–4. The Court noted that
`this issue seemed to be “summary judgment-related.” Dkt. 376 at 5:12–16.
`Given Archer’s concerns, following the October 25 CMC, Archer sought Rule 30(b)(6)
`testimony regarding: “A precise description of each [Asserted] Trade Secret.” Ex. 19 (30(b)(6) Notice).
`Wisk initially refused to designate any witness for this topic, claiming that its trade secrets were already
`“defined precisely in Wisk’s trade-secret disclosure.” Ex. 20 (Wisk Responses & Objections to
`30(b)(6) Topics) at 2. Archer said it would consider withdrawing this topic if Wisk agreed that the
`“text of Wisk’s Section 2019.21