Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

AEROSONIC LLC,

Plaintiff,

v. Case No. 8:25-cv-554-VMC-AAS

JOBY AERO, INC.,

Defendant.

_______________________________________/

ORDER

Defendant Joby Aero, Inc., (Joby) moves on an emergency basis to

overrule Plaintiff Aerosonic LLC’s (Aerosonic) alleged belated privilege claims

and to compel Aerosonic to produce certain documents Aerosonic has withheld

due to its alleged improper privilege claims. (Doc. 204). Aerosonic responded in

opposition. (Doc. 212-1).1

I. Background

Joby and Aerosonic are concluding fact and expert deposition discovery.

The discovery deadline is April 3, 2026. Joby asserts the emergency basis for

this motion is that Aerosonic belatedly claimed an improper privilege and

1 Aerosonic’s response has not been filed on the docket as of the time of this Order.

Docket entry 212-1 is the response attached as an exhibit to Aerosonic’s motion to

file its response under seal. See Endorse Order at docket entry 214 requiring

Aerosonic to file its response as a separate docket entry.

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Joby’s legal team has been instructed to stop access or review of the allegedly

privileged documents and refrain from asking Aerosonic’s witnesses and

experts about the allegedly privileged material. Aerosonic’s CEO and

Aerosonic’s technical expert will be deposed on April 2 and April 3,

respectively.

Joby contends Aerosonic is improperly attempting to claw back and

assert a privilege over:

(1) two deposition exhibits related to Aerosonic’s creation of alleged

trade secrets for the purpose of suing Joby, (2) in depth testimony

from multiple Aerosonic witnesses about those two deposition

exhibits, and (3) Aerosonic witness testimony about a meeting

between Aerosonic engineers to decide who should be listed as the

purported creator of alleged secrets, and to compel production of

additional related materials.

(Doc. 204, p. 2). The first two categories of information relate to a technical

document concerning trade secrets and “critical dimensions,” and an email

between Aerosonic Vice President of Engineering Greg Van Bemben and

Aerosonic engineers Rajeev Atluri and Anthony Nguyen relating to the “critical

dimensions” document. Further, Joby argues that, even if the disputed

material was privileged, Aerosonic has waived any such privilege.

Aerosonic counters that it properly clawed back the documents and

testimony. Aerosonic argues the “critical dimensions” document, including the

related email, and the meeting of Aerosonic engineers were created and

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conducted under the direction of Aerosonic’s former counsel. Consequently,

Aerosonic argues “[b]oth the document and the meeting (and any documents

stemming from that meeting) are clearly privileged and/or work product.” (Doc.

212-1, p. 3). Aerosonic further argues it promptly clawed back the documents

and testimony in accordance with the parties’ ESI protocol. Joby disagrees.

II. Analysis

Federal Rule of Civil Procedure 502 governs the inadvertent disclosure

of privileged material. Under Rule 502(b) inadvertent disclosure does not

operate as a waiver if: (1) the disclosure is inadvertent; (2) the holder of the

privilege or protection took reasonable steps to prevent disclosure; and (3) the

holder promptly took reasonable steps to rectify the error, including (if

applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). Fed. R. Civ.

P. 502(b).

Rule 502(e) also speaks to the effect an agreement between the parties

has on inadvertent disclosure; it states, “An agreement on the effect of

disclosure in a federal proceeding is binding only on the parties to the

agreement, unless it is incorporated into a court order.” See United States v.

DaVita, Inc., No. 617CV1592ORL37GJK, 2020 WL 12813697 at *1 (M.D. Fla.

Aug. 4, 2020) (“Rule 502(e) ‘codifies the well-established proposition that

parties can enter [into] an agreement to limit the effect of waiver by disclosure

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between or among them.’”) (citing Fed. R. Civ. P. 502(e), Advisory Committee

Notes).

The parties have entered an ESI Protocol and paragraph 24 of that ESI

Protocol addresses the disclosure of privileged material. (Doc. 204-6, p. 14).

Paragraph 24 states:

24. Non-Waiver of Privilege. The production of privileged or work

product protected ESI, whether inadvertent or otherwise, is not a

waiver of the privilege or protection from discovery in this case or

in any other federal or state proceeding. This Protocol shall be

interpreted to provide the maximum protection allowed by law.

However, nothing contained herein is intended to or shall serve to

limit a party’s right to conduct a review of documents, ESI, or

information (including metadata), for relevance, responsiveness,

and/or segregation of privileged and/or protected information

before production. Nothing herein shall limit the parties from

arguing that any ESI or document is not in fact privileged. Rather,

this paragraph is intended only to prohibit arguing that the ESI or

document has lost its privilege due to production.

(Doc. 204-6, pp. 14−15). Significantly, “[w]hile the agreement is only binding

on the parties, such agreement may provide greater protections than those

found in Rule 502.” DaVita, Inc., 2020 WL 12813697 at *2, n.1.

However, a threshold matter is whether the “critical dimensions”

document and related email (and resulting testimony about those documents

and the meeting) is protected from discovery by the work product doctrine.

Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV, 2010 WL 11505149 at *3

(S.D. Fla. June 15, 2010) (“Before performing a Rule 502(b) analysis, however,

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the Court must decide a threshold issue—whether the subject documents are

protected by a privilege.”).

A. Work Product Protection

Federal Rule of Civil Procedure 26(b)(3), sets forth

the work product doctrine and states:

(A) Documents and Tangible Things. Ordinarily, a party may not

discover documents and tangible things that are prepared in

anticipation of litigation or for trial by or for another party or its

representative (including the other party's attorney, consultant,

surety, indemnitor, insurer, or agent). But, subject to Rule

26(b)(4), those materials may be discovered if:

1. They are otherwise discoverable under Rule 26(b)(1); and

2. The party shows that it has substantial need for the materials

to prepare its case and cannot, without undue hardship, obtain

their substantial equivalent by other means.

Fed. R. Civ. P. 26(b)(3). “[W]ork product may be either fact work product,

which protects information gathered in anticipation of litigation, or

opinion work product, which consists of mental impressions, opinions, or legal

theories.” Gualtieri v. TD Bank, Nat’l Ass’n, No. 8:10-CV-1468-T-27TBM, 2011

WL 13302505 at *2 (M.D. Fla. Mar. 10, 2011). “Fact work product is subject to

qualified protection and may be discoverable upon a showing of substantial

need and an inability to obtain the substantial equivalent of the materials by

other means without undue hardship.” Bingham v. Baycare Health Sys., No.

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8:14-CV-73-T-23JSS, 2016 WL 1546504 at *4 (M.D. Fla. Apr. 15,

2016) (citations omitted). In contrast, “opinion work product enjoys a near

absolute immunity and can be discovered in only very rare and extraordinary

circumstances.” Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th

Cir. 1994) (citation omitted). “Once [the party who asserts the claim of

privilege] has shown the application of the work product privilege,

the burden shifts to [the other side] to demonstrate the existence of exceptional

circumstances for the discovery of otherwise privileged documents.” United

States v. Zahn, No. 3:22-CR-23-BJD-MCR, 2022 WL 17811346 at *8 (M.D. Fla.

Dec. 19, 2022) (citation omitted).

The “critical dimensions” document and related email qualify as fact

work product because they were created at the direction of Aerosonic’s former

counsel. Likewise, the other documents related to the engineering meeting are

fact work product because these documents were prepared to assist Aerosonic’s

former counsel in responding to Joby’s interrogatory. However, the fact the

engineer meeting occurred is not protected by work product doctrine.

B. Aerosonic Did Not Waive Privilege

As already stated above, parties may “enter into an agreement that

limits the effect of disclosure of privileged information. Fed. R. Civ. P. 502(e).

While the agreement is only binding on the parties, such agreement may

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provide greater protection than those found in Rule 502.” DaVita, Inc., No.

617CV1592ORL37GJK, 2020 WL 12813697 at *2, n.1. The parties’ ESI

agreement explicitly states, “[t]he production of privileged or work-product

protected ESI, whether inadvertent or otherwise, is not a waiver . . . in this

case . . .this paragraph [the non-waiver of privilege paragraph] is intended only

to prohibit arguing that the ESI or document has lost its privilege due to

production.” Therefore, Aerosonic has not waived any privileges through

inadvertently, or otherwise, producing the “critical dimensions” document and

related email to Joby. Further, Aerosonic’s initial allowance of testimony as to

the “critical dimensions” document before current counsel realized the

document was protected by the work product doctrine was not a waiver of the

protection. Upon discovering the circumstances of the document’s creation,

Aerosonic requested to claw back the document and testimony concerning the

document consistent with Rule 502 and the parties’ ESI protocol.

C. Joby’s Substantial Need

Joby has demonstrated the “critical dimensions” document, including the

email, and the engineering meeting, including the deposition testimony about

the documents and the meeting, are well within the scope of discovery

contemplated by Rule 26. Joby also has shown it has a substantial need and

an inability to obtain the substantial equivalent of the “critical dimensions”

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document and the testimony concerning the same document (and related

email) and the engineering meeting without undue hardship. Moreover, the

discovery of the disputed documents and testimony related to those documents

is not a fishing expedition. See In re Seroquel Products Liab. Litig., No. 606MD-

1769ORL-22DAB, 2008 WL 215707 at *3 (M.D. Fla. Jan. 24, 2008), aff’d, No.

6:06MD1769 ORL22DAB, 2008 WL 591929 (M.D. Fla. Feb. 28, 2008) (In

deciding whether to order production of such privileged materials, courts have

relied on a balancing test, considering three relevant factors: (1) whether

witness “coaching” may have occurred; (2) whether the documents reviewed

constitute “factual” or “opinion/core” work product; or (3) whether the request

constitutes a fishing expedition.).

Specifically, Joby has overcome the qualified work product protection by

demonstrating a substantial need to obtain (1) the presentation containing an

image of Joby’s probe presented by Mr. Van Bemden in the meeting, (2) all

photos, videos, and other visual images of Joby’s air data probe presented by

Mr. Van Bemden at the meeting, and (3) all notes taken by the attendees of

the meeting during the meeting, except any notes that reveal an attorney’s

mental impressions, opinions, or legal theories. Therefore, Aerosonic is

compelled to produce these documents.

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III. Conclusion

Accordingly, Joby’s Motion to Overrule Aerosonic’s Belated Privilege

Claim and to Compel Documents Related to Aerosonic’s Creation of Alleged

Trade Secrets is GRANTED in part. Joby may retain possession of the

“eritical dimensions” document and related email Aerosonic has already

disclosed and may continue to inquire at the remaining depositions into the

factual information concerning such documents and the engineering meeting.

Aerosonic must produce the documents described in the three categories listed

in the previous paragraph because Joby has made a sufficient showing to

overcome the qualified fact work protection of these documents.

To the extent Joby seeks a finding of a broad waiver of privilege or to

further compel any additional documents, the motion is DENIED. Further,

this Order should not be interpreted to authorize Joby to inquire into

Aerosonic’s prior counsel’s litigation strategy.

ORDERED in Tampa, Florida, on April 2, 2026.

AMANDA ARNOLD SANSONE

United States Magistrate Judge