1

Filed 9/28/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

UBER TECHNOLOGIES, INC.,

Plaintiff and Respondent,

v.

GOOGLE LLC,

Defendant and Appellant.

 A153653

 (REDACTED)

Anthony Levandowski and Lior Ron are former Google LLC (Google) employees 

who started the self-driving vehicle company Ottomotto LLC (Otto). Google considered 

Otto a competitor to its own self-driving vehicle project. After Otto was acquired by 

Uber Technologies, Inc. (Uber), Google initiated arbitration proceedings against its two 

former employees for allegedly breaching their employment contracts, breaching their 

fiduciary duties, fraud, tortious interference with Google’s employment relationships, and 

other claims. Google sought discovery from Uber, a nonparty to the arbitration, related 

to pre-acquisition due diligence done at the request of Uber and Otto’s outside counsel by

Stroz Friedberg LLC. Over Uber’s objections, the arbitration panel determined the due 

diligence documents were not protected by either the attorney client privilege or the 

attorney work product doctrine and ordered them produced. Uber initiated a special 

proceeding in superior court seeking to vacate the arbitration panel’s discovery order and 

prevailed. 

Google now appeals from the superior court’s order. We deny Uber’s motion to 

dismiss the appeal because the superior court’s order determined all the pending issues in 

the special proceeding between Google and Uber and was thus a final appealable order. 

Further, the due diligence-related documents prepared by Stroz were not protected 
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attorney-client communications. Neither were they entitled to absolute protection from 

disclosure under the attorney work product doctrine. Although the materials had 

qualified protection as work product, denial of the materials would unfairly prejudice 

Google’s preparation of its claims. The superior court order is reversed.

BACKGROUND

Levandowski and Ron started working at Google in 2007. Both resigned from 

Google in January 2016. After leaving, they formed Otto, a self-driving technology 

company which Google considered a competitor of its own self-driving car project. In 

August 2016, Otto was acquired by Uber. In October 2016, Google initiated arbitration 

proceedings against Levandowski and Ron for allegedly breaching non-solicitation and 

non-competition agreements. The arbitration between Google and Levandownski and 

Ron was scheduled to commence on April 30, 2018.

DISCUSSION

I. Appealability of Superior Court’s Discovery Order 

In July 2017, Google issued a third-party subpoena in the arbitration proceedings, 

demanding that Uber produce documents related to pre-acquisition due diligence 

conducted by the investigative firm Stroz Friedberg LLC (Stroz). Google sought all 

documents related to Stroz’s investigation into Levandowski, Ron, and Otto, including a 

report Stroz prepared at the request of counsel. Uber objected and refused to produce the 

documents, asserting they were protected under the attorney-client privilege and as 

attorney work product. 

In September 2017, Google moved in the arbitration to compel production of the 

Stroz documents. The arbitration panel chair found these Stroz-related materials (“Stroz 

Materials”) were not privileged or attorney work product. Uber appealed to the full 

arbitration panel which summarily affirmed the chair’s order. 

Uber petitioned the San Francisco Superior Court to vacate the panel’s discovery 

order. The superior court granted Uber’s petition and vacated the arbitration panel’s 

decision, requiring Uber to produce the documents (the “Order” or “Discovery Order”). 
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On January 22, 2018, Google filed this appeal, asserting the Order was a final 

appealable “order vacating an [arbitration] award.” Days later, in an effort “to accelerate 

adjudication of the issues raised by Google’s appeal,” Google petitioned for a writ of 

mandate, prohibition, and/or other appropriate relief (Case No. A153457), asking this 

Court to direct the superior court to vacate the Order. This court summarily denied the 

writ. 

In February 2018, Uber moved to dismiss this appeal on the ground that we lack 

jurisdiction. Following oral argument on Uber’s motion, we deferred a decision on the 

motion to dismiss until we considered the appeal on its merits.1

Uber contends this court lacks jurisdiction over Google’s appeal because the trial 

court’s Discovery Order was not a final arbitration award and thus not appealable. 

Google argues the Order was final, conclusive, and appealable as “[a]n order vacating an 

award” under Code of Civil Procedure section 1294, subdivision (c).2 

Section 1294 governs the right to appeal from trial court orders in arbitration 

matters. It provides that “ ‘[a]n aggrieved party may appeal from: [¶] (a) An order 

dismissing or denying a petition to compel arbitration. [¶] (b) An order dismissing a 

petition to confirm, correct or vacate an award. [¶] (c) An order vacating an award unless 

a rehearing in arbitration is ordered. [¶] (d) A judgment entered pursuant to this title. [¶] 

(e) A special order after final judgment.’ ” (Vivid Video, Inc. v. Playboy Entertainment 

Group, Inc. (2007) 147 Cal.App.4th 434, 442 (Vivid Video).) 

“ ‘ “[N]o appeal can be taken except from an appealable order or judgment, as 

defined in the statutes and developed by the case law.” ’ [Citation.]” (City of Gardena v. 

Rikuo Corp. (2011) 192 Cal.App.4th 595, 601.) “The existence of an appealable order or 

judgment is a jurisdictional prerequisite to an appeal.” (Canandaigua Wine Co., Inc. v. 

County of Madera (2009) 177 Cal.App.4th 298, 302 (Canandaigua).) 

 

1 We ordered Google’s writ petition in A153457 be deemed the opening brief in 

this appeal and that the record in A153457 serve as the record in this case. 

2 All statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
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“[Code of Civil Procedure] Section 904.1, subdivision (a), governs the right to 

appeal in civil actions. It codifies the ‘one final judgment rule,’ which provides that 

‘ “ ‘an appeal may be taken only from the final judgment in an entire action.’ ” 

[Citation.]’ [Citation.] A judgment is final, and therefore appealable, when it embodies 

‘the final determination of the rights of the parties in an action or proceeding’ (§ 577). A 

judgment constitutes the final determination of the parties’ rights ‘ “where no issue is left 

for future consideration except the fact of compliance or noncompliance with [its] 

terms . . . .” [Citation.]’ [Citation.]” (Kaiser Foundation Health Plan, Inc. v. Superior 

Court (2017) 13 Cal.App.5th 1125, 1138 (Kaiser Foundation).) “The one final judgment 

rule is a ‘fundamental principle of appellate practice that prohibits review of intermediate 

rulings by appeal until final resolution of the case.’ [Citation.] ‘[A]n appeal cannot be 

taken from a judgment that fails to complete the disposition of all causes of action 

between the parties. . . .’ ” (C3 Entertainment, Inc. v. Arthur J. Gallagher & Co. (2005) 

125 Cal.App.4th 1022, 1025.) “ ‘[E]xceptions to the one final judgment rule should not 

be allowed unless clearly mandated.’ ” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 

757.) “[I]f the order or judgment is not appealable, the appeal must be dismissed.” 

(Canandaigua, supra, 177 Cal.App.4th at p. 302.)

We know of no case that addresses the precise issue before us, namely, whether a 

party to an arbitration has a right to appeal an adverse superior court order vacating an 

arbitrator’s discovery order in favor of a third party to the arbitration.

Our Supreme Court’s decision in Berglund v. Arthroscopic & Laser Surgery 

Center of San Diego, L.P. (2008) 44 Cal.4th 528 (Berglund) provided the superior court 

jurisdiction to consider Uber’s petition to vacate the discovery order in the underlying 

arbitration. There, a nonparty to an arbitration proceeding was ordered by the arbitrator 

to produce documents. (Id. at p. 533.) The nonparty moved for a protective order in the 

superior court, which the superior court denied because it believed it lacked jurisdiction 

to review an arbitrator’s discovery order. (Ibid.) The nonparty appealed. (Ibid.) The 

Supreme Court acknowledged that discovery disputes between parties to an arbitration 

agreement are “ ‘generally immune from judicial review.’ ” (Id. at p. 534.) The Court 
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explained that parties to an arbitration agreement knowingly accept the limited judicial 

review of an arbitrator’s decisions and the risk that an arbitrator might make a mistake. 

(Ibid.) However, nonparties, who did not consent to any arbitration agreement, “cannot 

be compelled to arbitrate a dispute.” (Id. at p. 536.) Absent such consent, the Court 

concluded that nonparties were entitled to full judicial review of any adverse discovery 

order issued by the arbitrator against them. (Id. at pp. 537-538.) This result was 

necessary to preserve the legal rights of nonparties who never agreed to the arbitration in 

the first place. (Id. at p. 538.) While Berglund established that a nonparty dissatisfied 

with an arbitrator’s discovery decision may seek full judicial review in the superior court, 

it did not determine whether a party to the arbitration dissatisfied with the superior court 

decision then has a right of direct appeal.

On this issue unaddressed by Berglund, we conclude such a right of direct appeal 

exists based on the one final judgment rule. Here, the Discovery Order was the final 

resolution of the special proceeding initiated by Uber for the sole purpose of vacating the 

arbitration panel’s order compelling Uber to produce the Stroz Materials. The superior 

court’s order resolved the dispute between Uber and Google with finality. In vacating the 

arbitration panel’s award, the court’s order relieved Uber of any obligation to produce the 

Stroz Materials in the underlying arbitration and conclusively determined Uber’s 

obligations to Google. There was nothing left for the superior court to determine as 

between Uber and Google, and the Order disposed of all issues between them in the 

special proceeding. Since the Order was “the final determination of the rights of the 

parties” (§ 577), it is appealable.

The Discovery Order also had the finality required under section 1294. “Under 

section 1294, appealable arbitration orders require finality. . . . ‘[T]he Legislature’s 

philosophy and intent in drafting section 1294 was that there should be no appellate 

consideration of intermediate rulings in arbitration disputes if the superior court was of 

the view that there should be initial or further proceedings in arbitration. . . .’ An 

intermediate ruling in an arbitration dispute that contemplates further proceedings in 

arbitration is not appealable. [Citations.] Requiring finality in appealable arbitration 
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orders is consistent both with the language of section 1294 and the general prohibition of 

appeals from interlocutory nonfinal judgments in section 904.1, subdivision (a). 

[Citations.]” (Vivid Video, supra, 147 Cal.App.4th at pp. 442–443.) The Discovery 

Order contemplated no further proceedings between Google and Uber. It completely 

resolved the parties’ dispute as Uber was not a party to the arbitration.

Finally, even though the case did not arise out of an arbitration proceeding, City of 

Woodlake v. Tulare County Grand Jury (2011) 197 Cal.App.4th 1293 (Woodlake), 

underscores our conclusion. There, the appellant sought review of an order denying 

enforcement of an investigative subpoena “in which enforcement or nonenforcement was 

the only issue before the superior court.” (Id. at p. 1299.) The court noted that 

“ ‘[g]enerally, discovery orders are not appealable’ ” but found that “ ‘generalization is 

inapplicable’ ” when “ ‘the order is ancillary to litigation in another jurisdiction and 

operates as the last word by a California trial court on the matters at issue.’ ” (Ibid.) The 

Woodlake court observed that the respondent did not contend that its petition remained

pending. (Ibid.) Nor did the respondent contend “further proceedings are contemplated 

in the trial court, the traditional criterion for finality of an order.” (Ibid.) The court 

concluded that the trial court’s order terminated the entire proceeding on the merits and 

was appealable as a final judgment. (Ibid.) Such is the case here.

Uber contends the Discovery Order is not a final award because it “did not dispose 

of any of the claims to be tried in the arbitration.” According to Uber, “[t]he only thing 

the Order did is protect Uber . . . from having to produce privileged and work-product 

protected material from discovery in the Arbitration.” Uber is correct that the trial 

court’s Order decided only a preliminary discovery dispute in the arbitration. However, 

Uber was not a party to the arbitration, and the Order determined the entire controversy 

between Uber and Google in the special proceeding. As Uber itself cites, the “one final 

judgment rule” requires that a judgment is appealable when it embodies “the final 

determination of the rights of the parties in an action or proceeding.” (§ 577, italics

added.) 
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At oral argument on the motion to dismiss, Uber argued the Order lacked finality 

for other reasons. Uber explained that after a final award on the merits in the underlying 

arbitration, Google would be able to petition the superior court to confirm, vacate, or 

modify the award, and could appeal that result if so inclined. Uber emphasized the 

Discovery Order eventually could be reviewed in such a direct appeal by Google. We do 

not dispute Google’s ability to appeal from a judgment confirming an adverse arbitration 

award. However, Google’s right to eventually appeal an adverse judgment from its 

arbitration with Levandowski and Ron does not render the Discovery Order intermediate 

or incomplete in the dispute between Uber and Google. Nor does it deprive Google of its 

ability to appeal a final judgment in a fully adjudicated special proceeding.

The two principle cases Uber relies upon do not compel a different result. In 

Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619 (Judge), the arbitrator issued a 

“partial final award” which concluded that an agreement permitted arbitration of the 

plaintiff’s class action claims. (Id. at p. 627.) The defendants petitioned the trial court to 

vacate the arbitrator’s award. (Ibid.) The trial court did so, ruling the arbitrator exceeded 

her powers by deciding the arbitrability of the class claims, and the plaintiff appealed. 

(Id. at pp. 627-628.) The appellate court recognized an order vacating an award in the 

absence of a rehearing was appealable under section 1294, subdivision (c), but 

determined the trial court’s order did not vacate an “award” within the meaning of the 

statute. (Id. at pp. 633-634.) The Judge court explained that “an arbitration award must 

‘include a determination of all the questions submitted to the arbitrators the decision of 

which is necessary to determine the controversy.’ ” (Id. at p. 633.) The order contested 

in Judge did not resolve the arbitration but decided only, as a threshold matter, that class 

claims were subject to arbitration. (Id. at p. 638.) Judge held the order vacating the class 

arbitrability determination was not an appealable final award and dismissed the appeal. 

(Id. at pp. 632, 638.)

In Kaiser Foundation, supra, 13 Cal.App.5th.1125, Kaiser moved an arbitration 

panel to dismiss claims brought by several hospitals for Kaiser’s alleged failure to 

reimburse them for medical services provided to its members. (Id. at p. 1130.) The 
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arbitration panel denied the motion, and Kaiser petitioned the trial court to vacate the 

award. (Ibid.) After the trial court denied the petition and entered judgment confirming 

the award, Kaiser appealed. (Ibid.) However, the appellate court determined the award 

was not appealable. (Id. at pp. 1144, 1146.) Citing to Judge, the Kaiser Foundation 

court explained that the partial final award “did not ‘determin[e] . . . all the questions 

submitted to the arbitrators the decision of which is necessary to determine the 

controversy’ [citation].” (Id. at pp. 1143-1144.) The court noted that “[t]he controversy 

between Kaiser and [the hospitals] encompasse[d] a wide range of questions” but the 

partial final award determined “the sole question” of whether the plaintiffs’ claims were 

preempted and subject to certain exhaustion requirements. (Id. at p. 1144.) According to 

the court, “[t]he partial final award did not resolve all of the other questions necessary to 

determine the parties’ controversy” which had yet to be ruled upon and were pending 

before the arbitration panel. (Ibid.)

Both cases are distinguishable. First of all, the orders appealed in both Judge and 

Kaiser involved disputes between the parties to the underlying arbitration agreement. In 

both cases, additional controversies between the parties remained, and the parties would 

continue to resolve those in arbitration. In contrast, this case involved a nonparty to the 

underlying arbitration, and the single dispute involving the nonparty was conclusively 

determined by the superior court. Judge and Kaiser Foundation do not apply.

Because the Discovery Order is a final determination of the discovery rights 

between Uber and Google in the special proceeding commenced for the sole purpose of 

resolving this discovery dispute, the order is appealable. Uber’s motion to dismiss is 

denied, and we proceed to consider the merits of the appeal.

II. The Stroz Materials

On February 22, 2016, Uber and Otto signed a term sheet for Uber’s acquisition of 

Otto.3 The term sheet established a process for Uber to potentially acquire 100% 

 

3 Many of the documents pertaining to that agreement have been filed under seal, 

but some of the details in the agreements are otherwise already in the public record. At 

oral argument, the court requested the parties to identify the specific factual material in 
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ownership of Otto through the execution of a Put Call Agreement. An “Indemnity 

Construct” agreement was part of the term sheet and provided that Uber would indemnify 

Levandowski and Ron from certain claims Google might assert against them postacquisition. These included claims for the infringement or misappropriation of any 

intellectual property; breach of fiduciary duty to their former employer; and breach of 

any non-solicitation, non-competition, or confidentiality agreement. 

To determine the scope of the indemnified claims, the Indemnity Construct 

contained a “Pre-Signing Due Diligence Process.” An “Outside Expert” was to

investigate certain Otto “Diligenced Employees,” including Levandowski and Ron. The 

Outside Expert was to prepare a “third party report,” which the term sheet defined as “the 

written report(s) . . . summarizing in detail all of the facts, circumstances, activities or 

events obtained by the Outside Expert from any Diligenced Employee that the Outside 

Expert deems are reasonably related to any Bad Act of such Diligenced Employee, in

each case, based on the interviews, forensic due diligence and other due diligence 

investigation with respect to all Diligenced Employees conducted by the Outside Expert.” 

“Bad Acts” covered any infringement or misappropriation of trade secrets, breach of 

fiduciary duty, and violation of any non-solicitation, non-competition, or confidentiality 

agreement committed by an employee. 

Stroz, an independent third party and digital forensic expert, was the Outside 

Expert tasked with performing the pre-signing due diligence and was to be “jointly 

directed by and engaged by” Uber and Otto. Stroz was jointly retained in an engagement 

letter dated March 4, 2016, by Uber’s outside counsel at Morrison Foerster (MoFo) and 

Otto’s outside counsel at O’Melveny & Myers (O’Melveny). Their engagement letter 

with Stroz states: “The purpose of the investigation is to ascertain facts that, in the 

opinion of [MoFo and O’Melveny], bear on issues of whether certain current or 

 

the record each party believes must remain sealed. Based on the parties’ responses to that 

request and in light of the facts and documents that are otherwise already known to be in 

the public record, we have redacted portions of this opinion where necessary to protect 

information under seal not already in the public domain.
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prospective employees . . . of Ottomotto have improperly retained on devices or in 

storage repositories not belonging to former employers, confidential information 

belonging to former employers, and whether such current or prospective employees 

breached any fiduciary duty, duty of loyalty, or other confidentiality, non-solicitation, 

non-competition or other obligations based in contract, statute or otherwise.” 

During the pre-acquisition due diligence, Levandowski was represented by 

Donahue Fitzgerald LLP’s John Gardner. Ron was personally represented by Levine & 

Baker, LLP. Neither retained Stroz on behalf of their clients.

In and around March 2016, Stroz began its investigation under MoFo’s and 

O’Melveny’s supervision and direction. Stroz collected from Levandowski and Ron 

various electronic devices and access to various cloud-based storage accounts. In 

addition, Stroz interviewed Levandowski and Ron. 

Sometime in April 2016, Stroz gave Uber’s counsel at MoFo an oral report on its 

preliminary fact finding and memos of interviews with Levandowski and Ron. 

On April 11, 2016, Uber and Otto executed the Put Call Agreement and finalized 

the indemnification agreement. 

That same day, Otto, Levandowski, Ron, and Uber through their respective 

counsel executed a “Joint Defense, Common Interest, and Confidentiality Agreement” 

“in contemplation of potential investigations, litigation, and/or other proceedings” related 

to Uber’s acquisition of Otto. Uber claims that the parties had an oral joint defense and 

common interest agreement as of February 24, 2016. 

On August 5, 2016, Stroz issued its final, written report to Uber’s MoFo attorneys 

and Otto’s O’Melveny attorneys. That report is labeled “Privileged & Confidential [¶] 

Attorney Work Product.”

On February 23, 2017, with Google’s arbitration pending against Levandowski 

and Ron for the alleged breach of their employment contracts, Google filed a related civil 

action, Waymo LLC v. Uber Technologies, Inc., Case No 3:17-cv-00939-WHA in the 

United States District Court for the Northern District of California (the “Federal Case”). 

In this Federal Case, Waymo, the Google-related self-driving car company, sought 
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damages and injunctive relief against Uber based on alleged trade secret misappropriation 

arising out of Uber’s acquisition of Otto. 

 Waymo moved to compel production of the Stroz report and its exhibits. In June 

2017, the magistrate judge granted Waymo’s motion. The magistrate held the Stroz 

documents were not protected by Levandowski’s attorney-client privilege because the 

“record is clear that Uber and Otto alone engaged Stroz to conduct the due diligence 

required by the Term Sheet.” Nor were the documents protected by Uber’s attorney 

client privilege because Stroz interviewed Levandowski and Ron in their individual 

capacities, not as Otto executives. The magistrate also found the Stroz report was not 

protected attorney work product, and not protected under the common interest doctrine. 

Over the objections of Uber, Otto, and Levandowski, the district court affirmed the 

magistrate’s order. Levandowski unsuccessfully sought mandamus relief in the Federal 

Circuit. (See Waymo LLC v. Uber Techs., Inc. (Fed. Cir. Sept. 13, 2007) 870 F.3d 1350.) 

In October 2017, Uber released the Stroz report.

As the Federal Case proceeded, the arbitration between Google and Levandowski 

and Ron moved forward. Like Waymo did in the Federal Case, Google sought and 

moved to compel production of the Stroz-related documents in the arbitration. The 

arbitration panel chair found these Stroz Materials were protected by neither the attorneyclient privilege nor attorney work product doctrine. Uber appealed to the full arbitration 

panel which summarily affirmed the chair. 

Then, Uber successfully petitioned the San Francisco Superior Court to vacate the 

panel’s order. The superior court held the Stroz Materials were protected under the 

attorney client privilege, and it was not waived when the documents were shared between 

Uber, Otto, Levandowski, Ron, and their respective attorneys. The superior court granted 

Uber’s petition and vacated the arbitration panel’s decision compelling Uber to produce 

the documents. 

On January 22, 2018, Google appealed from the Order. We now address it on the

merits.

A. Applicable Standards of Review
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The parties disagree on the standard of review we must apply on appeal and the 

standard the superior court should have applied in reviewing the arbitration panel’s order.

Google relies on Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal. 4th 

362 (Advanced) to contend we must review the superior court’s order de novo. Uber 

argues Advanced says nothing about our standard of review of a court’s order vacating an 

arbitrator’s order compelling discovery from a nonparty. It views this case as analogous 

to a petition for review of an interlocutory order, citing Costco Wholesale Corp. v. 

Superior Court (2009) 47 Cal.4th 725, 733 (Costco), and submits our review should be 

for abuse of discretion.

De novo review is proper here. As we have discussed above, this is a final order 

that conclusively resolved the dispute between Uber and Google. Thus, we decline to 

employ a review standard more appropriately applied to interlocutory orders, as Uber 

urges. Appellate courts review superior court orders vacating a final arbitration award de 

novo. (See Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55-56 (Malek); 

Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1364-1365.) We see no 

reason to use a different standard. In addition, to the extent that the superior court’s 

ruling rests upon a determination of disputed factual issues, we review them for

substantial evidence. (Malek, supra, 121 Cal.App.4th at pp. 55-56; Reed, supra, 1106 

Cal.App.4th at p. 1365.)

When it comes to the standard of review applied by the superior court to the 

arbitration panel’s order, the parties not unexpectedly flip positions. Google contends the 

superior court erroneously applied the de novo standard and disregarded the arbitration 

panel’s findings of fact. Google asserts the superior court should have applied the 

deferential abuse of discretion standard. Uber argues the superior court properly applied 

the de novo standard. We do not reach this issue because under either standard the 

superior court erred in vacating the arbitration panel’s decision.

B. Attorney-Client Privilege

Under California law, an attorney-client communication is one “between a client 

and his or her lawyer in the course of that relationship and in confidence.” (Evid. Code, 
13

§ 952.) An attorney-client relationship exists when the parties satisfy the definitions of 

“lawyer” and “client” as specified in Evidence Code sections 950 and 951, respectively. 

For purposes of the attorney-client privilege, “client” is defined in relevant part as “a 

person who, directly or through an authorized representative, consults a lawyer for the 

purpose of retaining the lawyer or securing legal service or advice from him in his 

professional capacity . . . .” (Evid. Code, § 951, italics added.) “Confidential 

communication” protected by the privilege refers to “information transmitted between a 

client and his or her lawyer in the course of that relationship and in confidence” by 

confidential means. (Evid. Code, § 952.) A confidential communication may include “a 

legal opinion formed and the advice given by the lawyer in the course of that 

relationship.” (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1032.)

The attorney client privilege may also extend to third parties who have been 

engaged to assist the attorney in providing legal advice. (See State Farm Fire & 

Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639 (State Farm) [“ ‘It is no 

less the client’s communication to the attorney when it is given by the client to an agent 

for transmission to the attorney, and it is immaterial whether the agent is the agent of the 

attorney, the client, or both.’ ”].)

In assessing whether a communication is confidential and thus privileged, the 

initial focus of the inquiry is on the “dominant purpose of the relationship” between 

attorney and client and not on the purpose served by the particular communication. 

(Costco, supra, 47 Cal.4th at pp. 739-740, italics omitted.) “If the trial court determines 

that communications were made during the course of an attorney-client relationship, the 

communications, including any reports of factual material, would be privileged, even 

though the factual material might be discoverable by other means.” (Id. at p. 740.) 

The privilege “is to be strictly construed” in the interest of bringing to light 

relevant facts. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 396.) The 

privilege is also to be strictly construed “where the relationship is not clearly 

established.” (People v. Velasquez (1987) 192 Cal.App.3d 319, 327, fn. 4.)
14

“When a party asserts the attorney-client privilege it is incumbent upon that party 

to prove the preliminary fact that a privilege exists. [Citation.] Once the foundational 

facts have been presented, i.e., that a communication has been made ‘in confidence in the 

course of the lawyer-client . . . relationship, the communication is presumed to have been 

made in confidence and the opponent of the claim of privilege has the burden of proof to 

establish that the communication was not confidential,’ or that an exception exists. 

[Citations.]” (State Farm, supra, 54 Cal.App.4th at p. 639.)

Uber never established the Stroz Materials were attorney-client communications

nor could it. The Stroz Materials resulted from a pre-acquisition due diligence process 

Uber’s and Otto’s attorneys jointly hired Stroz to perform. Both Levandowski and Ron 

had separate personal counsel who never retained Stroz. Uber and Otto attorneys 

directed Stroz’s efforts, not the personal attorneys for Levandowski or Ron. Moreover, at 

the time Stroz performed its due diligence, the interests of Uber were adverse to those of 

Otto, Levandowski and Ron. Uber was in the process of evaluating whether it would 

purchase Otto and in doing so indemnify Levandowski and Ron. To that end, when Stroz 

interviewed Levandowski and Ron and collected their devices for review, it did not do so 

as their agent or on behalf of their attorneys. Levandowski and Ron were the subjects of 

an investigation and were not MoFo or O’Melveny clients. Their communications to 

MoFo and O’Melveny lawyers through Stroz (the agent) did not constitute information 

transmitted from client to lawyer. This is made clear in the Stroz engagement letter. It 

provides that “under no circumstances will Stroz Frieberg disclose to Uber or [MoFo] or 

any of their representatives any attorney-client privileged communications between 

Ottomotto and/or any of its employees, stockholders, officers, members, managers or 

directors, on the one hand, and counsel for Ottomotto or counsel to any of such persons, 

on the other hand, that are disclosed to or discovered by Stroz Friedberg in its 

performance of the services. For the avoidance of doubt, communications between 

Ottomotto and/or any of its employees, stockholders, officers, members, managers or 

directors, on the one hand, and any of the following attorneys and law firms, on the other 

hand, is attorney-client privileged communication and will not be disclosed by Stroz 
15

Friedberg to Uber or [MoFo] or any of their respresentatives: O’Melveny & Myers 

LLP, . . . .” Thus, Levandowski’s and Ron’s communications with Stroz, as reflected in 

the Stroz Materials, and shared with MoFo are not protected by the attorney-client

privilege. 

Uber argues that the attorney-client privilege attaches to the Stroz Materials 

because Levandowski and Ron were Otto employees when they communicated with 

Stroz, who was acting as the agent for Otto’s lawyers at O’Melveny. Uber observes that 

“[w]hen a lawyer for a corporation gathers facts from the corporation’s employees in 

order to give legal advice to the corporation, those factual communications are 

privileged.” Levandowski’s and Ron’s positions as Otto employees or executives does 

not alter our analysis. The record shows that neither of them had any attorney-client 

relationship with O’Melveny. Each retained separate personal counsel, and the Stroz 

engagement letter makes clear that attorney-client privileged information obtained from 

Otto employees is not to be shared with Uber and MoFo. Further, Levandowski’s and 

Ron’s personal attorneys established additional parameters around sharing certain 

information with the MoFo and O’Melveny lawyers. Prior to turning over devices and 

account information to Stroz, Ron’s attorney instructed Stroz not to provide MoFo or 

O’Melveny or Uber or Otto any of Ron’s privileged documents.4 

Next, Uber claims these communications “were made for the purpose of seeking 

legal advice” to “assess the potential litigation threats faced” from Google. The record 

shows otherwise. The term sheet’s “Indemnity Construct” does not discuss anticipated 

litigation. Rather, Diligenced Employees are required to cooperate and make their 

devices available to Stroz as a pre-condition to the execution of the Put Call Agreement 

and as a means to determine the scope of the indemnified claims. Levandowski did not

comply with the Term Sheet to seek O’Melveny’s legal advice. Rather, he provided 

Stroz information to clarify the extent of any obligation arising out of the Indemnity 

 

4

[

REDACTED

 ]
16

Construct. In a letter written to the MoFo and O’Melveny attorneys, Levandowski’s 

lawyer, John Gardner, stated the purposes of the Stroz examination were to “(i) support 

the indemnification agreement and (ii) to provide evidence that [Uber] and Otto exercised 

due care prior to . . . entering into the Transaction Documents.” Asked in deposition 

whether he agreed with the statement by Gardner, Otto’s designated company witness

testified, “You would have to ask Uber about the purposes. As I’ve previously indicated, 

my understanding is that it was more broadly related to Uber determining whether to 

enter into the transaction, including the indemnification agreement.” The need for legal 

advice or to assess potential litigation threat did not drive Levandowski’s or Ron’s 

communications with Uber and Otto’s lawyers.

Because Uber was unable to demonstrate Levandowski’s or Ron’s 

communications with Stroz were made in the course of an attorney-client relationship, 

the attorney-client privilege does not attach. 

C. Attorney Work Product

Uber contends that even if the Stroz Materials were not privileged attorney-client 

communications, they were protected attorney work product. Google argues the attorney 

work product doctrine provides no alternate ground to support the superior court’s 

Discovery Order. We agree with Google.

“An attorney’s work product is the product of the attorney’s ‘ “ effort, research, 

and thought in the preparation of his client’s case. It includes the results of his own 

work, and the work of those employed by him or for him by his client, in investigating 

both the favorable and unfavorable aspects of the case, the information thus assembled, 

and the legal theories and plan of strategy developed by the attorney—all as reflected in 

interviews, statements, memoranda, correspondence, briefs, and any other writings 

reflecting the attorney’s ‘impressions, conclusions, opinions, or legal research or 

theories’ and in countless other tangible and intangible ways.” ’ [Citations.]” (Meza v. 

H. Muehlstein & Co. (2009) 176 Cal.App.4th 969, 977.) 

The attorney work product doctrine, codified at Code of Civil Procedure section 

2018.030, provides: “A writing that reflects an attorney’s impressions, conclusions, 
17

opinions, or legal research or theories is not discoverable under any circumstances.” (§ 

2018.030, subd. (a).) All other attorney work product “is not discoverable unless the 

court determines that denial of discovery will unfairly prejudice the party seeking 

discovery in preparing that party’s claim or defense or will result in an injustice.” (§ 

2018.030, subd. (b).) The superior court did not address the attorney work product 

doctrine in the Discovery Order at issue in this appeal, so it made no relevant findings. 

Based on the record, the Stroz Materials do not meet either standard. 

The Stroz Materials do not reflect an attorney’s impressions, conclusions, 

opinions, or legal research or theories. Rather, the Stroz Materials reflect the result of a 

factual investigation into possible past misconduct committed by Levandowski and Ron 

in the course of leaving Google so that Uber could decide whether to proceed with the 

Otto transaction and indemnify Levandowski and Ron. The materials summarize what 

Levandowski and Ron told Stroz without the filter of Stroz’s impressions, conclusions, 

opinions or legal theories. The exhibits to the Stroz report report [ 

 REDACTED ] 

In addition, the engagement letter between Stroz and counsel further indicates that Stroz

was not authorized to practice law and its services were “limited to non-legal services,”

Thus, the Stroz Materials do not constitute opinion work product that is absolutely 

protected under section 2018.030, subdivision (a).

Nor do the Stroz Materials qualify for the limited privilege for non-opinion work 

product set forth in section 2018.030 subdivision (b). Substantial evidence in the record 

supports a conclusion that denial of discovery will unfairly prejudice Google in preparing 

its claims. [

REDACTED
18

 ] These findings supported the arbitration panel’s conclusion that production of 

the Stroz Materials “may be one of the only effective ways for Google to obtain certain

relevant information in this case.”

5

 

Uber disputes that Google showed a “substantial need” for the information, and 

further argues Google cannot make such a showing because it elected to proceed with the 

arbitration without the Stroz Materials while there are alternative means to access it. We 

disagree. There is substantial evidence in this record from which the arbitrators could 

conclude the information in the Stroz Materials was material to Google’s claims and 

could not otherwise be obtained. Moreover, there is no evidence identifying the 

alternative sources for it. We simply give no weight to the fact that Google was 

proceeding with the arbitration proceedings in the face of the adverse ruling from the trial 

court. These factors do not abate or otherwise negate the prejudice Google will unfairly 

suffer from being denied the Stroz Materials in arbitration. 

D. Waiver and Common Interest Doctrine

Finally, Google contends even if Levandowski’s communications with Stroz were 

protected under the attorney-client privilege or attorney work product, any such privilege 

was waived by disclosure to Uber and not preserved by the common-interest doctrine. 

Google contends the superior court’s reliance on the common-interest doctrine was 

misplaced. Because Uber never established the Stroz Materials were privileged or work 

product, we need not reach this issue. (See OXY Resources California LLC v. Superior 

Court (2004) 115 Cal.App.4th 874, 889.)

DISPOSITION

Uber’s motion to dismiss Google’s appeal is denied. The superior court’s 

Discovery Order granting Uber’s petition to vacate the arbitration panel’s discovery 

 

5 On March 12, 2018, Google requested we take judicial notice of an order from 

the underlying arbitration which it cites to in its reply brief in support of this argument. 

In our April 26, 2018 order, we further deferred ruling on the request until our 

consideration of this appeal on the merits. We now deny the request as unnecessary to 

our resolution of this appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & 

Harrison (1998) 18 Cal.4th 739, 748, fn. 6.)
19

decision is reversed. The matter is remanded to the superior court with directions to enter 

a new order denying Uber’s petition to vacate the arbitration award. Google is awarded 

costs on appeal.
20

_________________________

Siggins, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Jenkins, J.
21

Uber Technologies, Inc. v. Google, LLC, A153653
22

Trial Court: City & County of San Francisco Superior Court

Trial Judge: Honorable Harold E. Kahn

Counsel:

Keker, Van Nest & Peters, Robert A. Van Nest, Dan Jackson, Jo W. Golub, W. Hamilton 

Jordan, Rachel E. Meny, Thomas E. Gorman for Defendant and Appellant.

Boies Schiller Flexner, Meredith R. Dearborn, Juan P. Valdivieso, Hamish Hume, Jessica 

Phillips for Plaintiff and Respondent.

Goodwin Procter, Andrew S. Ong for Real Party in Interest, Andrew Levandowski.

Taylor & Patchen, Karen S. Dhadialla for Real Party in Interest, Lior Ron.