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01980-00104/9358046.16 No. 3:17-cv-00939-WHA

WAYMO’S RESPONSE TO MOTIONS FOR RELIEF

QUINN EMANUEL URQUHART & SULLIVAN, LLP 

 Charles K. Verhoeven (Bar No. 170151) 

 charlesverhoeven@quinnemanuel.com 

 David A. Perlson (Bar No. 209502) 

 davidperlson@quinnemanuel.com 

 Melissa J. Baily (Bar No. 237649) 

 melissabaily@quinnemanuel.com 

 John Neukom (Bar No. 275887) 

 johnneukom@quinnemanuel.com 

 Jordan Jaffe (Bar No. 254886) 

 jordanjaffe@quinnemanuel.com 

50 California Street, 22nd Floor 

San Francisco, California 94111-4788 

Telephone: (415) 875-6600 

Facsimile: (415) 875-6700 

Attorneys for WAYMO LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

WAYMO LLC, 

Plaintiff, 

v. 

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC, 

Defendants. 

CASE NO. 3:17-cv-00939-WHA 

PLAINTIFF WAYMO LLC’S 

CONSOLIDATED RESPONSE TO 

MOTIONS FOR RELIEF FROM 

NONDISPOSITIVE PRETRIAL ORDER 

OF MAGISTRATE JUDGE (DKTS. 572, 

574, 575)

Case 3:17-cv-00939-WHA Document 585 Filed 06/12/17 Page 1 of 20
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01980-00104/9358046.16 -i- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO MOTIONS FOR RELIEF

TABLE OF CONTENTS 

Page 

I. LEGAL STANDARD ............................................................................................................1

II. MOVANTS HAVE NOT SHOWN THAT MAGISTRATE CORLEY’S RULINGS 

ON THE ATTORNEY-CLIENT PRIVILEGE WERE CLEARLY ERRONEOUS .............2

A. The Due Diligence Materials Are Not Protected By Uber’s Attorney-Client 

Privilege .....................................................................................................................2

B. The Due Diligence Materials Are Not Protected By OT’s Newly Asserted 

Claim of Attorney-Client Privilege ............................................................................3

III. MOVANTS HAVE NOT SHOWN THAT MAGISTRATE CORLEY’S JOINT 

DEFENSE INTEREST FINDINGS ARE CLEARLY ERRONEOUS .................................4

A. Magistrate Corley’s Finding That The Term Sheet Created No Joint 

Defense Interest Is Not Clearly Erroneous .................................................................5

B. Magistrate Corley Did Not Clearly Err By Concluding That The 

Indemnification Clause Did Not Create A Joint Defense Interest .............................6

C. Magistrate Corley Did Not Clearly Err By Finding That Correspondence 

From Levandowski’s Counsel Indicated He Shared No Joint Defense 

Interest With Uber ......................................................................................................7

D. The Purpose Of The “Due Diligence Report” Was, In Fact, Due Diligence .............8

IV. MAGISTRATE CORLEY DID NOT CLEARLY ERR IN REJECTING 

LEVANDOWSKI’S ARGUMENT THAT A JOINT DEFENSE AGREEMENT 

CREATES A NEW PRIVILEGE WHERE NONE EXISTED ...........................................10

V. MOVANTS’ ASSERTION THAT WORK PRODUCT WAIVER OCCURS 

ONLY THROUGH DISCLOSURE TO A LITIGATION ADVERSARY IS 

INCORRECT .......................................................................................................................11

VI. MAGISTRATE CORLEY DID NOT CLEARLY ERR BY ORDERING 

PRODUCTION OF THE STROZ REPORT BECAUSE IT POST-DATED THE 

PUT CALL AGREEMENT .................................................................................................12

VII. MAGISTRATE CORLEY DID NOT CLEARLY ERR IN HOLDING THAT 

“WAYMO HAS A SUBSTANTIAL NEED FOR PARTS OF THE STROZ 

REPORT” .............................................................................................................................14

VIII. REVERSAL IS INAPPROPRIATE IN LIGHT OF THE ALTERNATIVE BASES 

FOR AFFIRMANCE ...........................................................................................................14

IX. NO STAY PENDING APPEAL OR MANDAMUS IS WARRANTED ............................14

X. CONCLUSION ....................................................................................................................15

 

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01980-00104/9358046.16 -ii- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO MOTIONS FOR RELIEF

TABLE OF AUTHORITIES 

Page 

Cases 

Bank Brussels Lambert v. Credit Lyonnais, 160 F.R.D. 437 (S.D.N.Y. 1995) ..................................................................................................5 

Beavers-Gabriel v. Medtronic, Inc., No. 13-686, 2015 WL 3397859 (D. Hawaii May 26, 2015) ..................................................3, 13 

In re Fujitsu Ltd., 578 F. App’x 997 (Fed. Cir. 2014) .............................................................................................14 

In re Grand Jury Subpoena, 357 F.3d 900 (9th Cir. 2004) ........................................................................................8, 9, 11, 13 

Griffith v. Davis, 161 F.R.D. 687 (C.D. Cal. 1995) ...............................................................................................11 

Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D. Cal. 1987) .................................................................................................5 

In re JP Morgan Chase & Co. Sec. Litig., MDL No. 1783, 2007 WL 2363311 (N.D. Ill. Aug. 13, 2007) ....................................................5 

Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 342 (N.D. Ohio. 1999) ...............................................................................................5 

Mohawk Indus., Inc. v. Carpenter, 

558 U.S. 100 (2009) ...................................................................................................................15 

NL Indus., Inc. v. Commercial Union Ins. Co., 

144 F.R.D. 225 (D.N.J. 1992) ......................................................................................................7 

Neilson v. Union Bank of Cal., N.A., 

No. 02-6942, 2003 WL 27374179 (C.D. Cal. Dec. 23, 2003) ...................................................11 

Nidec Corp. v. Victor Co. of Japan, 

249 F.R.D. 575 (N.D. Cal. 2007) .................................................................................................5 

Oak Industries v. Zenith Industries, 

No. 86 C 4302, 1988 WL 79614, 1988 U.S. Dist. LEXIS 7985 

(N.D. Ill. July 27, 1988) ...............................................................................................................5 

In re Pac. Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) ....................................................................................................10 

Patrick Caldwell v. Facet Retiree Med. Plan, No. C 13-00385 WHA .................................................................................................................2 

In re Rearden LLC, 841 F.3d 1327 (Fed. Cir. 2016) ..................................................................................................14 

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01980-00104/9358046.16 -iii- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO MOTIONS FOR RELIEF

SCM Corp. v. Xerox Corp., 

70 F.R.D. 508 (D. Conn. 1976) ....................................................................................................5 

Sec. & Exch. Comm’n v. Mercury Interactive LLC, No. C, 07-02822 WHA 2012 WL 4466582 (N.D. Cal. Sept. 25, 2012) ..................................................1 

In re Shelbyzme LLC, 547 F. App’x 1001 (Fed. Cir. 2013) ...........................................................................................14 

In re Shukh, 485 F. App’x 437 (Fed. Cir. 2012) .............................................................................................14 

In re Taiwan Union Tech. Corp., 587 F. App’x 638 (Fed. Cir. 2014) .............................................................................................14

United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003) ...............................................................................................12 

United States v. Boyce, No. 13-601, 2014 WL 7507240 (C.D. Cal. May 2, 2014) ...........................................................3 

United States v. Christensen, 828 F.3d 763 (9th Cir. 2016) ........................................................................................................2 

United States v. MIT, 129 F.3d 681 (1st Cir. 1997) ......................................................................................................11 

United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) .......................................................................................................10 

Upjohn Co. v. United States, 

449 U.S. 383 (1981) .....................................................................................................................3 

Verigy US, Inc. v. Mayder, 

No. 07-4330, 2008 WL 4866290 (N.D. Cal. Nov. 7, 2008) .......................................................11 

In re Verisign, Inc. Sec. Litig., No. C 02-02270 JW, 

2004 WL 2445243 (N.D. Cal. Mar. 10, 2004) .............................................................................1 

Statutes 

Cal. Civ. Code. § 1668 .......................................................................................................................7 

Cal. Ins. Code § 533 ...........................................................................................................................7 

Fed. R. Civ. P. 72(a) .........................................................................................................................14 

Cal R. Prof’l Conduct 3-310(c) ..........................................................................................................5 

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01980-00104/9358046.16 -1- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTION FOR RELIEF

 Magistrate Judge Corley found that Waymo’s Motion To Compel should be granted on 

multiple grounds. Rather than attempt to identify any specific “clear error,” as required to meet 

their burden to overturn the Magistrate’s ruling, the Movants collectively throw the kitchen sink in 

their objections, citing to anything and everything they can to try to avoid the Magistrate’s ruling 

and continue their “relentless concealment of likely probative evidence.” (Dkt. 433, 8.) Otto 

Trucking (“OT”) argues, for example, that the Magistrate “clearly erred” in finding that what 

Defendants themselves have repeatedly referred to as the Stroz “Due Diligence Report” related to 

“due diligence.” (Dkt. 574, 4.) And Movants attempt to show error by relying on arguments and 

case law never presented to the Magistrate. 

 Movants do not come close to meeting the clear error standard for setting aside the 

Magistrate’s 24-page opinion. All of Magistrate Corley’s findings – that Stroz was not retained by 

Levandowski or his lawyer, that Levandowski communicated with Stroz in his individual capacity 

rather than in his capacity as an officer of any Otto entity, that the recipients of the report did not 

share a common litigation interest, that the preparation and sharing of the report was not designed 

to further any alleged shared litigation interest, and that the declarations submitted by Movants 

were not credible – are supported by the evidence and the law and necessitate the conclusion that 

the due diligence materials must be produced. They certainly do not rise to “clear error,” and 

Movants do not show otherwise. Magistrate Corley’s Opinion should be affirmed. 

I. LEGAL STANDARD 

As this Court has explained, “[a] non-dispositive order entered by a magistrate must be 

deferred to unless it is ‘clearly erroneous or contrary to law.’ . . . . A district court reviewing the 

magistrate judge’s order ‘may not simply substitute its judgment for that of the deciding court.’” 

Sec. & Exch. Comm’n v. Mercury Interactive LLC, No. C 07-02822 WHA, 2012 WL 4466582, at 

*3 (N.D. Cal. Sept. 25, 2012) (Alsup, J.) (citations omitted). More specifically, discretionary 

discovery rulings by a magistrate judge should be upheld unless they are clearly erroneous. In re 

Verisign, Inc. Sec. Litig., No. C 02-02270 JW, 2004 WL 2445243, at *1 (N.D. Cal. Mar. 10, 2004) 

(“The ‘clearly erroneous’ standard applies to factual findings and discretionary decisions made [by 

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01980-00104/9358046.16 -2- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTION FOR RELIEF

magistrate judges] in connection with non-dispositive pretrial discovery matters.”); see also 

Patrick Caldwell v. Facet Retiree Med. Plan, No. C 13-00385 WHA, Dkt. 86 at 3 (March 31, 

2014) (Alsup, J.) (“Had this issue been before the assigned judge ab initio, he would have allowed 

the depositions to go forward. That, however, is not the standard of review. Defendants have 

simply not met their burden to prove that the discovery order was clearly erroneous or contrary to 

law.”). 

II. MOVANTS HAVE NOT SHOWN THAT MAGISTRATE CORLEY’S RULINGS 

ON THE ATTORNEY-CLIENT PRIVILEGE WERE CLEARLY ERRONEOUS 

 In her ruling, Magistrate Corley held that the report and its attachments are not protected 

by anyone’s attorney-client privilege, because Stroz was retained jointly by Ottomotto and Uber 

while those companies “were on the opposite sides of a proposed transaction represented by 

separate counsel.” (Dkt. 566, 10.) The Magistrate noted that there is no case holding “that 

communications between separate parties with separate counsel on opposite sides of a proposed 

transaction are protected by the attorney-client privilege” (id.) and rightly pointed out that “[t]wo 

clients represented by separate counsel do not create an attorney-client relationship by jointly 

retaining an agent” (id. 11). Magistrate Corley further found that memoranda summarizing 

interviews with Ron and Levandowski are not privileged because neither held an attorney-client 

relationship with any of the attorneys who retained Stroz. (Id.) Movants have not shown clear 

error for any of these findings, nor could they as they are well supported in the opinion. 

A. The Due Diligence Materials Are Not Protected By Uber’s Attorney-Client 

Privilege 

Uber contends that Magistrate Corley clearly erred by not concluding that the Stroz Report 

is privileged under United States v. Christensen, 828 F.3d 763, 802 (9th Cir. 2016). (Dkt. 575, 4-

5.) Magistrate Corley, however, considered Christensen and found that it “merely held that 

conversations between a lawyer and an investigator retained by the lawyer about the lawyer’s 

client are privileged.” (Dkt. 566, 10.) As discussed above, however, Magistrate Corley found that 

neither Levandowski, Ron, nor their lawyers hired Stroz. (Id.) This case is therefore unlike 

Christensen. Nor does Uber address Magistrate Corley’s finding (id.) that the report is not 

privileged because it was prepared by an “independent expert” for two parties “on opposite sides 

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01980-00104/9358046.16 -3- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTION FOR RELIEF

of a proposed transaction.” Magistrate Corley noted that Uber had not cited authority “that holds 

that communications between separate parties with separate counsel on opposite sides of a 

proposed transaction are protected by the attorney-client privilege” (Dkt. 566, 10), and Uber’s 

motion still cites no such authority. Nor does Uber cite any authority contrary to Magistrate 

Corley’s holding that “[t]wo clients represented by separate counsel do not create an attorneyclient privilege by jointly retaining an agent.” (Dkt. 566, 11.)1

B. The Due Diligence Materials Are Not Protected By OT’s Newly Asserted 

Claim of Attorney-Client Privilege 

OT argues that Magistrate Corley erred by not finding the report to be protected by OT’s

attorney-client privilege because Stroz and Levandowski were supposedly acting on OT’s behalf 

when Stroz interviewed Levandowski . (Dkt. 572, 2.) But no one ever made that argument 

before, so it is waived.2

 See Beavers-Gabriel v. Medtronic, Inc., No. 13-686, 2015 WL 3397859, 

at *4 (D. Hawaii May 26, 2015); United States v. Boyce, No. 13-601, 2014 WL 7507240, at *7 

(C.D. Cal. May 2, 2014). Having not made this argument, no movant can show that Magistrate 

Corley’s decision not to adopt it is clear error. It is without merit in any event. While OT asserts 

it “jointly retained Stroz” (Dkt. 572, 1, 4), the Stroz retention agreement makes no mention of OT 

(who was not a party to the Term Sheet) at all. Thus, Magistrate Corley correctly found “the Term 

Sheet and [Levandowski’s counsel’s] side agreements with Stroz establish that Stroz’s interview 

of Levandowski was performed in Levandowski’s individual capacity,” and not as an OT or 

Ottomoto executive.3

 (Dkt. 566, 10.) 

 1

 Even crediting Uber’s arguments, Magistrate Corley found that Uber waived any work 

product protection by sharing the withheld documents with Otto (Dkt. 566, 13-21), and that same 

conclusion would equally compel a finding that any attorney-client privilege was waived. 

2

 OT joined Uber and Ottomoto’s opposition to Waymo’s motion to compel rather than file its 

own. (Dkt. 389.) 

3

 The fact that Levandowski communicated with Stroz in his individual capacity renders 

Upjohn Co. v. United States, 449 U.S. 383 (1981), inapposite. 

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01980-00104/9358046.16 -4- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTION FOR RELIEF

III. MOVANTS HAVE NOT SHOWN THAT MAGISTRATE CORLEY’S JOINT 

DEFENSE INTEREST FINDINGS ARE CLEARLY ERRONEOUS 

 Magistrate Corley held that any privileges over the report and its attachments had been 

waived by their distribution to parties who do not satisfy the joint defense doctrine. She found 

that, at the time the Term Sheet was signed by Uber and Ottomotto, the companies “were on the 

opposite sides of a proposed acquisition with no obligation to consummate the transaction.” (Dkt. 

566, 15.) Uber and Ottomotto “could only have a common legal interest in pursuing a defense of 

a possible lawsuit by Waymo once Uber was obligated (if certain conditions were met) to acquire 

Otto and thus inherit or create any liabilities to Waymo.”4

 (Id.) Magistrate Corley also noted that 

the fact that Levandowski’s lawyer, in a letter to Stroz, had claimed that Levandowski “shared a 

common legal interest with Otto, but did not also claim to share a common interest with Uber,” 

evidenced that Levandowski did not share such an interest with Uber. (Id., 17.) 

 Magistrate Corley went on to find that, even if Ottomotto and Uber had shared a common 

legal interest when they hired Stroz, the purpose of the Stroz investigation was “to enable Uber to 

evaluate whether to purchase Otto rather than to develop a joint strategy regarding Waymo 

litigation.” (Dkt. 566, 16.) She noted that the Term Sheet identified the purpose of the Stroz 

investigation as allowing Uber to conduct due diligence before deciding whether to sign the Put 

Call Agreement and creating a record that “will control whether any diligenced employees have to 

reimburse Uber for indemnification expenses should Waymo sue the diligenced employees.” (Id. 

15-16.) Magistrate Corley then noted that Stroz provided Uber with an interim report “just before 

Uber signed the Put Call Agreement,” confirming that the purpose of the investigation was so that 

Uber could evaluate whether to sign the agreement. (Id., 16.) Indeed, the Term Sheet requires 

that Stroz’s “initial due diligence” be completed prior to the time Uber was required to sign the 

Put Call Agreement, confirming that the purpose of the investigation was to complete the 

acquisition. (Dkt. 523-5, UBER00017566; Dkt. 566, 3.) 

 4

 Contrary to OT’s contention (Dkt. 575, 1), Magistrate Corley did not hold that two parties 

can never “share litigation risk prior to the time that one of them becomes ‘obligated’ to acquire 

the other.” Rather, Magistrate Corley held that Defendants had not met their burden of proving 

that Uber shared any risk of litigation with Waymo prior to acquiring Ottomotto. 

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01980-00104/9358046.16 -5- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTION FOR RELIEF

A. Magistrate Corley’s Finding That The Term Sheet Created No Joint Defense 

Interest Is Not Clearly Erroneous 

Movants contend that Magistrate Corley erred by finding that the Term Sheet did not 

create a joint defense interest because Ottomotto and Uber were on opposite sides of the proposed 

transaction. (Dkt. 572, 3-4; Dkt. 574, 3; Dkt. 575, 1.) For its part, Uber claims there is “no legal 

basis” for Magistrate Corley’s finding. But the Court need look no further than the Rules of 

Professional Conduct, which describes the legal interests of parties to a proposed business deal as 

adverse such that the same attorneys cannot represent both sides, absent a waiver. Cal. R. Prof’l 

Conduct 3-310(c). Courts, therefore, often hold that no joint defense privilege arises merely 

because two parties contemplate a business transaction that may give rise to litigation.5

 

Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D. Cal. 1987), the 

primary authority relied on by Uber, is not to the contrary. Magistrate Corley considered this 

decision and distinguished it on the ground that it “involve[d] the sharing of already privileged 

information, and not the joint production of purportedly privileged work product.” (Dkt. 566, 17.) 

Hewlett-Packard involved the disclosure of a single opinion letter concerning one patent during 

the sale of a business, not the joint commissioning of an investigation into “Bad Acts” as a 

precondition to whether a business transaction would go forward. That decision has, further, been 

widely criticized as taking too “expansive” of a view of the joint defense privilege by expanding 

that doctrine to predominantly commercial transactions. See Nidec, 249 F.R.D. at 579; Libbey 

Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 342, 348 (N.D. Ohio. 1999); Bank Brussels Lambert v. 

Credit Lyonnais, 160 F.R.D. 437, 447 (S.D.N.Y. 1995); Oak Industries v. Zenith Industries, No. 

86 C 4302, 1988 WL 79614, at *4, 1988 U.S. Dist. LEXIS 7985, at *12 (N.D. Ill. July 27, 1988). 

 5

 In re JP Morgan Chase & Co. Sec. Litig., MDL No. 1783, 2007 WL 2363311, *5 (N.D. Ill. 

Aug. 13, 2007) (“Fundamentally, the Court does not understand how Bank One and JP Morgan 

can be said to share a common legal interest prior to their signing the merger. Prior to the merger, 

these organizations stood on opposite sides of a business transaction.”); Nidec Corp. v. Victor Co. 

of Japan, 249 F.R.D. 575, 579 (N.D. Cal. 2007) (joint defense doctrine did not apply to 

communications between a company and potential purchasers of that company); SCM Corp. v. 

Xerox Corp., 70 F.R.D. 508, 513 (D. Conn. 1976)(antitrust analysis offered during joint venture 

negotiations not privileged as parties were not commonly interested, but adverse, negotiating an 

arm’s length a business transaction). 

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01980-00104/9358046.16 -6- No. 3:17-cv-00939-WHA

WAYMO’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTION FOR RELIEF

The Magistrate therefore correctly followed the later authority from this and other Districts 

declining to follow Hewlett-Packard. (See 6/7/27 Hearing Tr., 8 (“There’s no such thing as ‘the 

Northern District has decided.’”).) 

Uber also argues that it shared a common legal interest with Ottomotto when the Term 

Sheet was signed because they “faced that risk [of litigation] irrespective of whether the deal 

closed.” (Dkt. 575, 1-2.) Although Uber cites paragraphs 6 and 10 of the declaration of its inhouse counsel, Justin Suhr, to support that contention (Dkt. 378), those paragraphs simply state 

that Uber “contemplated the specific possibility that Google could bring claims arising out of 

Uber’s acquisition of Otto against some or all of the parties” and that there were “litigation risks 

that the proposed acquisition presented.” (Id. ¶¶ 6, 10.) Suhr does not suggest, much less explain, 

how Uber faced a shared risk of litigation against Waymo with Ottomoto even if the acquisition 

was not completed. 

In its part, OT contends a shared joint defense interest existed because the parties were “in 

the late stages of negotiation” when they (albeit not OT) signed the Term Sheet to retain Stroz. 

(Dkt. 572, 4.) OT cites no authority that the “stage of negotiations,” whether early or late, impacts 

whether a joint defense privilege exists. Even if it had, Movants do not even meet the legal 

standard OT contends Magistrate Corley should have applied. The Magistrate Judge found that 

the Term Sheet imposed significant due diligence requirements that had to occur before the 

acquisition could be completed. (Dkt. 566, 2-3.) And while OT argues that the Term Sheet gave 

it a joint defense interest with Uber, Ottomotto, Ron, and Levandowski (Dkt. 572, 2), again, OT is 

not a signatory to the Term Sheet. (Dkt. 510-3.) 

B. Magistrate Corley Did Not Clearly Err By Concluding That The 

Indemnification Clause Did Not Create A Joint Defense Interest 

Levandowski argues that the indemnification obligation in the Term Sheet gave rise to a 

shared litigation risk “regardless whether it ended up purchasing Otto.” (Dkt. 574, 3.) But this 

argument ignores, and does not rebut, Magistrate Corley’s finding that the parties remained 

adverse with respect to that shared litigation risk at least until after the Stroz investigation was 

completed. (Dkt. 566, 3.) As Magistrate Corley found (Dkt. 566, 3), the Term Sheet explicitly 

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makes the indemnification obligation conditional (Dkt. 523-5, UBER00017566). Further, as the 

Magistrate found (Dkt. 566, 2-3), Uber did not even have an indemnification obligation until after 

“execution of the Put Call Agreement” (Dkt. 523-5, UBER00017566). Uber therefore owed no 

indemnification obligation at the time the Term Sheet was signed and the Stroz investigation 

undertaken. Regardless, indemnification agreements covering intentional torts like trade secret 

theft are illegal and unenforceable, Cal. Ins. Code § 533; Cal. Civ. Code. § 1668, and therefore 

cannot give rise to a shared legal interest. Further, an indemnification relationship does not, per 

se, create a joint defense privilege, and there is no insured-insurer privilege.6 

 But even crediting Levandowski’s position that the indemnification provision in the Term 

Sheet created a common legal interest between Uber and Ron and between Uber and 

Levandowski, that is not sufficient to show clear error. Levandowski has not shown that all 

members of the “joint defense group” shared that same common interest. In particular, he has not 

shown that he and Ron shared the same common interest. Levandowski and Ron were not in an 

indemnitor-indemnitee relationship with each other and therefore shared no joint defense interest 

with respect to their individual “Bad Acts” being investigated by Stroz. 

C. Magistrate Corley Did Not Clearly Err By Finding That Correspondence 

From Levandowski’s Counsel Indicated He Shared No Joint Defense Interest 

With Uber 

Levandowski faults (Dkt. 574, 5) Magistrate Corley for relying on the letter from his 

counsel to Stroz that asserted that Levandowski shared a common legal interest with Ottomotto 

but made no mention of any shared interest with Uber. (Dkt. 566, 17.) Levandowski’s argument 

simply disagrees with the reasonable inference Magistrate Corley drew from the evidence, which 

suggested Levandowski shared no interest with Uber. Because Levandowski’s conversations with 

Stroz were shared with Uber, it is not sufficient for Levandowski to merely show a joint defense 

interest with Ottomotto. 

 6

 See, e.g., NL Indus., Inc. v. Commercial Union Ins. Co. 144 F.R.D. 225, 231 (D.N.J. 1992) 

(“The common interest doctrine is applicable only when it has been determined that the ... insurer 

is obligated to defend the underlying action brought against the insured ... and the parties ‘have 

employed a lawyer to act for them in common.’”). 

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D. The Purpose Of The “Due Diligence Report” Was, In Fact, Due Diligence 

OT contends that any finding that “the Stroz investigation was intended for due diligence 

purposes” was clear error in light of the attorney declarations the defendants submitted. (Dkt. 572, 

4.) That the purpose of the Stroz investigation was not “due diligence” does not pass the straight 

face test. Uber identified Stroz’s work as a “due diligence review” the first time they disclosed its 

existence and stated the Stroz report is “based on that due diligence.” (3/29/17 Hearing Tr., 12, 

24.) The privilege log itself refers to Stroz’s work as the “Due Diligence Investigation.” (Dkt. 

321-2.) 

Uber argues the Stroz investigation had a “dual purpose” that was both business and in 

anticipation of litigation. (Dkt. 575, 2.) Uber asks the Court to apply, in the joint defense context, 

the standard for determining if a “dual purpose” document is work product, which Uber states is 

met “if it can fairly be said that the document was created because of anticipated litigation and 

would not have been created in substantially similar form but for the prospect of litigation.” (Dkt. 

575, 2 (quoting In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004).)7

 The decision 

Uber cites does not address the joint defense privilege at all. But even if that standard were 

applicable, Magistrate Corley found that the purpose of the Stroz investigation was to advise Uber 

on whether to complete the merger and to determine the scope of any indemnification obligations. 

(Dkt. 566, 15-16.) There is no indication that the Stroz investigation would not have occurred in 

substantially similar form even if there was no expected litigation. And they certainly have not 

shown Magistrate Corley’s opposite conclusion was clear error. 

Levandowski argues (Dkt. 574, 4) that Magistrate Corley erred by not giving dispositive 

weight to the fact that the Stroz retention agreement states that its purpose is to allow the parties 

“to understand certain factual matters potentially relevant to potential litigation . . .” (Dkt. 370-3, 

2 (emphasis added).) As an initial matter, Levnadowski makes this argument only by ignoring 

that the Stroz retention agreement explicitly states that its purpose includes other “related matters,” 

 7

 Otto Trucking relies on the same case for its articulation of the joint defense interest 

standard. (Dkt. 572, 4.) 

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i.e., the business purposes identified by Magistrate Corley, including deciding whether to 

complete the acquisition and determine the scope of any indemnification obligations.8 What is 

more, the “potential litigation” relied on by Levandowski is litigation in which he and Uber would 

have adverse interests, examples of which include this litigation as well as litigation between Uber 

and Levandowski concerning the indemnification provisions themselves. The retention 

agreement, therefore, does not compel a finding that the Stroz Report “would not have been 

created in substantially similar form but for the prospect of litigation” in which Levandowski and 

Uber would have a common legal interest. In re Grand Jury Subpoena, 357 F.3d at 908. 

OT and Levandowski also contend that Magistrate Corley did not sufficiently credit their 

self-serving and conclusory attorney declarations stating that the purpose of Stroz’s investigation 

was to obtain litigation advice. (Dkt. 572, 4; Dkt. 574, 4-5.) But they do not show clear error in 

Magistrate Corley’s finding that the declarations were “not persuasive evidence” and to be 

afforded “little weight” because the declarations went out of the way to ignore all the contrary 

evidence. (Dkt. 566, 20.) Magistrate Corley noted that although the attorney declarations 

discussed and relied on the Term Sheet extensively, they conspicuously failed to attach it, “a key 

hole in Uber’s argument.” (Dkt. 566, 20; 5/25/17 Hearing Tr., 17.) Such weighing of the 

evidence and credibility findings are owed deference.9

Levandowski further argues that Magistrate Corley erred when she found that the Stroz 

investigation was for due diligence purposes because Uber had what it refers to as a “litigation” 

attorney retain Stroz. (Dkt. 574, 4.) While it is true that this attorney, Eric Tate of Morrison & 

Foerster, has appeared for Uber in this litigation, Tate stated in his declaration that Uber retained 

 8

 Magistrate Corley further noted that Defendants failed to explain why the Stroz Engagement 

letter is dated “[a]s of March 4, 2016” (Dkt. 370-3), which implies that there is some unexplained 

earlier version. (Dkt. 566, 18.) Evidence that the parties “back dated” the retention agreement 

suggests, if anything, that any concern about litigation post-dated the start of the Investigation. 

9

 Even if Levandowki’s attorney’s declaration were credible, Levandowski does not 

accurately represent its contents. Contrary to his assertion, the declaration nowhere states that the 

reason Levandowski spoke to Stroz was “to evaluate litigation risks and generate litigation 

strategy.” (Dkt. 381.) At best, the declaration states there was “litigation risk.” (Id. ¶3). 

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him “to provide legal advice regarding a potential corporate transaction.”10 (Dkt. 370 ¶2 

(emphasis added).) And Levandowski cites no authority that places any relevance as to the 

specialty of a lawyer on this issue.11 

IV. MAGISTRATE CORLEY DID NOT CLEARLY ERR IN REJECTING 

LEVANDOWSKI’S ARGUMENT THAT A JOINT DEFENSE AGREEMENT 

CREATES A NEW PRIVILEGE WHERE NONE EXISTED 

Magistrate Corley held, citing extensive authority, that the joint defense doctrine does not, 

by itself, create a privilege, but instead “prevents waiver of a pre-existing privilege if the 

privileged information is shared only with those with a common legal interest.” (Dkt. 566, 12.) 

“Rather than a separate privilege, the ‘common interest’ or ‘joint defense’ rule is an exception to 

ordinary waiver rules designed to allow attorneys for different clients pursuing a common legal 

strategy to communicate with each other.” In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th 

Cir. 2012). Levandowski’s opposition to Waymo’s Motion similarly characterized the common 

interest privilege as “[a]n exception to the waiver of privilege.” (Dkt. 379, 7.) Levandowski’s 

attorney agreed with this statement at the hearing. (5/25/17 Hearing Tr., 41, 46-47.) 

Nevertheless, Levandowski now claims that his communications with Stroz are privileged, 

not because he was communicating with Stroz to obtain legal advice, but instead because he 

shared a common legal interest with Uber, Stroz’s principal. (Dkt. 574, 1.) Levandowski relies on 

the Second Circuit decision United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989), a case 

he did not cite to Magistrate Corley. In Schwimmer, one co-defendant’s attorney hired an 

accountant “to serve [both co-defendants’] joint interests” and “on behalf of both clients.” Id. But 

 10 In any event, Tate’s website states he “counsels companies on . . . transactional matters . . . 

and employment aspects of mergers and acquisitions,” not merely litigation. 

https://www.mofo.com/people/eric-tate.html. 

11 Many of the attorneys that received the Stroz Report were not retained for litigation advice. 

Ron’s attorney was retained to advise him “in connection with the proposed transaction.” (Dkt. 

375 ¶2.) Although they may also have given litigation advice, Ottomotto and Otto Trucking’s 

attorneys were “hired to perform the negotiation and related corporate representation of Otto in 

connection with the potential transaction.” (Dkt. 376 ¶4.) Levandowski’s attorney was hired “to 

provide personal counsel regarding a potential corporate transaction.” (Dkt. 381 ¶2.) 

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Magistrate Corley found, and Levandowski does not dispute, that he agreed to speak with Stroz 

only on the condition that those communications not be shared with Uber or even his own 

company, Otto. (Dkt. 566, 4.) Further, Stroz was hired by Uber and Ottomotto (id., 2; Dkt. 370-

3), not Levandowski, to serve Uber and Ottomotto’s interests, not Levandowski’s. Magistrate 

Corley further found that Levandowski only spoke to Stroz in his individual capacity (Dkt. 566, 

10) and Stroz, therefore, was not his agent. Schwimmer and its progeny are therefore inapposite. 

V. MOVANTS’ ASSERTION THAT WORK PRODUCT WAIVER OCCURS ONLY 

THROUGH DISCLOSURE TO A LITIGATION ADVERSARY IS INCORRECT 

Uber argues that even if no joint defense privilege applies, sharing the Stroz report among 

the various recipients is not a waiver of work product protection because waiver of work product 

protection occurs only if there is disclosure with a litigation adversary. (Dkt. 575, 3.) 

As an initial matter, Uber’s argument presupposes that the report is work product in the 

first place. But it is not. Uber contends that work product protection applies to these documents 

only “if it can fairly be said that the document was created because of anticipated litigation and 

would not have been created in substantially similar form but for the prospect of litigation.” (Dkt. 

575, 2 (quoting In re Grand Jury Subpoena, 357 F.3d at 908).) In light of Magistrate Corley’s 

findings that the primary, if not sole, purpose of the Stroz investigation was to advise Uber on 

whether to acquire Ottomotto and to determine the scope of any indemnification obligations, this 

standard is not met. 

But even if Uber could show that the report was work product, its argument that waiver of 

work product only occurs when disclosure is made to an actual “litigation adversary” is 

unavailing. (Dkt. 575, 3.) To the contrary, waiver arises from disclosure to a “potential 

adversary.” United States v. MIT, 129 F.3d 681, 687 (1st Cir. 1997); Neilson v. Union Bank of 

Cal., N.A., No. 02-6942, 2003 WL 27374179, at *5 (C.D. Cal. Dec. 23, 2003). It also arises from 

disclosures that merely increase the opportunity for a potential adversary to obtain the information. 

Verigy US, Inc. v. Mayder, No. 07-4330, 2008 WL 4866290, at *2 (N.D. Cal. Nov. 7, 2008); 

Griffith v. Davis, 161 F.R.D. 687, 699 (C.D. Cal. 1995). Magistrate Corley found that disclosure 

here was made to at least potential litigation adversaries, and Uber’s argument therefore fails. 

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Specifically, Magistrate Corley found that: (1) “Uber disclosed the Stroz investigation to 

its then adversaries Otto, Levandowski and Ron” (Dkt. 566, 21); (2) “Otto was Uber’s adversary 

because they were on opposite sides of a potential transaction” (id.); and (3) “Uber engaged Stroz 

to investigate Otto and its employees and the results of that investigation could have caused Uber 

to not proceed with the acquisition” (id.). Further, during the course of the Stroz investigation 

(and still to this date), the parties were potential litigation adversaries at least with respect to 

Uber’s potential obligation to indemnify Otto and Levandowski for their “Bad Acts.” (Id. 2-3 

(discussing Uber’s indemnification obligations).) 

To support her finding of waiver, Magistrate Corley cited United States v. Bergonzi, 216 

F.R.D. 487 (N.D. Cal. 2003), in which a company disclosed its attorneys’ investigation to the SEC 

under a confidentiality agreement. The court held that the SEC and the company did not share a 

true common interest because the SEC maintained as a consideration the potential to bring charges 

against the company. Id. at 496. Uber contends that “Bergonzi does not stand for the proposition 

that parties to a potential business transaction are adversaries.” (Dkt. 575, 4.) But that is not the 

proposition for which Magistrate Corley cited Bergonzi. Rather, as Magistrate Corley found: (1) 

“Levandowski and Ron were also Uber’s adversaries as Uber was investigating them” (Dkt. 566, 

21); (2) “[t]he investigation results could have led to Levandowski and Ron losing millions of 

dollars if Uber decided not to sign the Put Call Agreement because of what it learned” (id.); and 

(3) “the investigation could lead to Levandowski or Ron having to reimburse Uber for 

indemnification expenses if an arbitrator or court found that they were not truthful with Stroz” 

(id.). In short, the recipients of Uber’s due diligence report potentially faced litigation with Uber 

concerning the scope of Uber’s contractual indemnification obligations and their “Bad Acts,” 

which were precisely the subject of the report, as well as potential litigation that could arise out of 

the proposed acquisition. Magistrate Corley’s conclusion was not clear error. 

VI. MAGISTRATE CORLEY DID NOT CLEARLY ERR BY ORDERING 

PRODUCTION OF THE STROZ REPORT BECAUSE IT POST-DATED THE PUT 

CALL AGREEMENT 

Uber argues that Magistrate Corley clearly erred by ordering production of the Stroz report 

because the report post-dated the April 11, 2016 signing of the Put Call Agreement that Uber 

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contends bound Uber to purchase Ottomotto and, thus, created a joint defense interest. (Dkt. 575, 

2-3, 5.) Uber’s argument fails on multiple grounds. 

Initially, none of the Movants argued that any common legal interest arose upon anything 

other than the signing of the Term Sheet. None argued that a common legal interest arose as of the 

signing of the Put Call Agreement. Having not made this argument, Uber cannot show that 

Magistrate Corley’s decision not to adopt it is clear error.12 See Beavers-Gabriel, 2015 WL 

3397859, at *4; Boyce, 2014 WL 7507240, at *7. 

Moreover, Uber does not even address the alternative basis for Magistrate Corley’s 

decision that “the Stroz Investigation began well before the Put Call Agreement was signed” 

(Dkt. 567, 18 n.2.), much less show that it was clearly erroneous. Nor does it address Magistrate 

Corley’s finding that, prior to the signing of the Put Call Agreement, Stroz provided an “interim 

report” to Uber, including the withheld witness interviews. (Dkt. 566, 5.) Perhaps it is due to the 

woefully inadequate privilege logs served by Defendants, but it appears that Defendants have 

withheld and not even logged this “interim” report. Nevertheless, Movants cannot retroactively 

cloak all of this work and related communications in privilege merely by signing an agreement. 

Further, even crediting Uber’s argument, its argument is contrary to its position that the 

Stroz report is work product. As noted above, Uber contends that work product protection applies 

to these documents only “if it can fairly be said that the document was created because of 

anticipated litigation and would not have been created in substantially similar form but for the 

prospect of litigation.” (Dkt. 575, 2 (quoting In re Grand Jury Subpoena, 357 F.3d at 908).) In 

light of Magistrate Corley’s findings that the primary, if not sole, purpose of the Stroz 

investigation was to advise Uber on whether to acquire Ottomotto and determine the scope of any 

indemnification obligations, this standard is not met. 

 12 Uber claims it made this argument to Magistrate Corley (Dkt. 575, 3), but it cites only its 

declarations, not any briefing (id., 3 n.5). A party cannot raise arguments solely in factual 

declarations and not in their briefs. Even if they could, the citations to those declarations merely 

establish that the date the Put Call Agreement was signed. They do not make this legal argument. 

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Finally, the parties remained adverse with respect to the scope of Uber’s indemnification 

obligations even after April 11. The Term Sheet provides that even “after the Closing,” Uber’s 

obligations to indemnify were dependent on whether the “Diligenced Employees” committed 

certain “Bad Acts.” (Dkt. 523-5, UBER00017566; Dkt. 566, 3.) Those “Bad Acts” were the 

subject of the Stroz investigation. 

VII. MAGISTRATE CORLEY DID NOT CLEARLY ERR IN HOLDING THAT 

“WAYMO HAS A SUBSTANTIAL NEED FOR PARTS OF THE STROZ 

REPORT” 

Magistrate Corley held that even assuming portions of the Stroz report were work product, 

Waymo had a substantial need for production in light of Levandowski’s refusal to testify or 

produce documents. (Dkt. 566, 22.) Neither Uber nor Levandowski challenges this holding. OT 

mentions it in passing, saying it “preserves its right to challenge Judge Corley’s classification if 

this Court or the Federal Circuit reverses her waiver holding.” (Dkt. 572, 5.) But the time to 

challenge all bases for the Opinion is now, not at some later date. Fed. R. Civ. P. 72(a). The 

argument is, therefore, waived and these documents should be produced. 

VIII. REVERSAL IS INAPPROPRIATE IN LIGHT OF THE ALTERNATIVE BASES 

FOR AFFIRMANCE 

Even assuming the Movants identified some clear error, that conclusion does not warrant 

reversing Magistrate Corley’s Order. In its motion to compel, Waymo presented other grounds for 

compelling production of the Stroz Report that Magistrate Corley did not reach. These grounds 

include: (1) that Uber’s privilege log was facially deficient (Dkt. 321, 5-7); (2) application of the 

crime-fraud exception (id., 12); (3) the “attachments” to the Stroz Report are not work product 

merely because Stroz selected them as exhibits to the Report (id., 14-16); and (4) Defendants 

failed to submit the necessary declarations from Ron, Levandowski, and O’Melveny & Myers to 

establish that no waiver has occurred (Dkt. 445, 7-9). If any of Movants’ arguments are accepted, 

the Court should either address Waymo’s other arguments or remand them to Magistrate Corley 

for consideration. 

IX. NO STAY PENDING APPEAL OR MANDAMUS IS WARRANTED 

Levandowski and OT argue that, if the Court denies his motion, it should stay enforcement 

of the Opinion pending a mandamus petition to the Federal Circuit. (Dkt. 574, 5 n.4; Dkt. 572, 5.) 

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Such a petition (the third appellate proceeding in this case already) would not justify a stay. The 

Federal Circuit routinely denies petitions for writs of mandamus challenging privilege rulings,13

and such rulings “are unlikely to be reversed on appeal, particularly when they rest on factual 

determinations for which appellate deference is the norm.” Mohawk Indus., Inc. v. Carpenter, 558 

U.S. 100, 109 (2009). Nor can Movants show irreparable harm. Mohawk rejected the argument 

that the harm from adverse privilege rulings is irreparable. Id. at 109 (“Appellate courts can 

remedy the improper disclosure of privileged material in the same way they remedy a host of other 

erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in 

which the protected material and its fruits are excluded from evidence.”). And here, the balance of 

harms and public interest weigh in favor of disclosure in light of the substantial showing that 

Waymo’s trade secrets have been stolen, Levandowski’s refusal to testify or produce documents, 

and the relevance of the withheld documents. 

Further, if a stay is granted, fact discovery may close before any appeal is decided, denying 

Waymo the ability to take further discovery related to the contents of the withheld documents. 

This case is on an expedited discovery and trial schedule. Movants intend to use any appeal and 

stay to obstruct the production of more than 3,500 documents they are withholding on privilege 

and work product grounds so that Waymo may not consider any of these documents in its trial 

preparation and potentially to cause a delay in the trial date. Both Waymo and the public have an 

interest in timely and orderly proceeding through discovery and to trial. 

X. CONCLUSION 

Movants have not shown clear error, and their motions should be denied. 

 13 In re Rearden LLC, 841 F.3d 1327, 1334 (Fed. Cir. 2016); In re Taiwan Union Tech. Corp., 

587 F. App’x 638, 641 (Fed. Cir. 2014); In re Fujitsu Ltd., 578 F. App’x 997 (Fed. Cir. 2014); In 

re Shelbyzme LLC, 547 F. App’x 1001, 1002 (Fed. Cir. 2013); In re Shukh, 485 F. App’x 437, 438 

(Fed. Cir. 2012). 

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DATED: June 11, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP 

By /s/Charles K. Verhoeven 

 Charles K. Verhoeven 

Attorneys for WAYMO LLC 

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