[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Aerosonic LLC v. Joby Aero, Inc., 2026 WL 900154 (M.D. Fla. Par. 2, 2026), Aerosonic inadvertently produced work product to Joby. Aerosonic permitted deponents to testify about the material. It then asserted work product protection under Fed.R.Civ.P. 26(b)(3), non-waiver under Fed.R.Evid. 502, and a “clawback,” presumably under Fed.R.Civ.P. 26(b)(5)(B). 

The court held that the information was work product and that the production and testimony had not waived work product protection under the precise terms of the ESI Protocol.

However, while not expressly stated, apparently after having reviewed the documents, the Aerosonic court also held that the recipient, Joby, had shown “substantial need and an inability to obtain the substantial equivalent….” That showing overcame protection under the work product doctrine.

While not expressly stated, it seems to me that Aerosonic shows that a non-waiver and clawback agreement cannot “unring the bell.” The court agreed that work product protection had not been waived. However, the work product had been disclosed; the court concluded that the recipient had shown “substantial need” for it; and, therefore the otherwise-protected work product had to be produced. I wonder if the result would have been different if the work product had never been disclosed.

The documents at issue were:

(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.

The first two categories, and some email, related to trade secrets and “critical dimensions.”

The ESI Protocol protected disclosed ESI, whether disclosure was inadvertent or otherwise. It is not clear to me whether the protocol was incorporated into a Rule 502(d) order or, instead, was only a Rule 502(e) agreement between the parties. Because this was in the Middle District of Florida, I am guessing that it was not an order. Court Denied Unopposed Motions for Protective Order and Approval of ESI Protocol (Sep. 5, 2024).

The Aerosonic court wrote that an agreement may provide greater protections than those found in Rule 502. 2026 WL 900154, at *2. Of course, an agreement among the parties binds only the parties, unlike a Rule 502(d) order.

First, the court determined that the disclosed “critical dimensions” information and related emails was work product because it was created at the direction of Aerosonic’s former attorney. The fact that the engineer meeting occurred was not protected.

Next, the court applied the ESI Protocol.

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.

However, the “critical dimensions” document, the email, and the engineering meeting, were within the scope of discovery. That led to the following.

The Aerosonic court then applied the “substantial need” prong of the work product doctrine:

Joby also has shown it has a substantial need and an inability to obtain the substantial equivalent of the “critical dimensions” 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…. 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.

The court held that “Joby may retain possession of the ‘critical 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.”

However: “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.”

Aerosonic was decided on an emergency basis, one day before the discovery deadline. Id. at *1. In this blog, I am assuming that the contents of the disclosed information was known to the court. Fed.R.Civ.P. 26(b)(5)(B) states: “After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.” [emphasis added].

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