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NON-PARTY ANTHONY LEVANDOWSKI’S MOTION FOR PROTECTIVE ORDER 

Case No. 3:17-cv-00939-WHA

MILES EHRLICH (Bar No. 237954)

miles@ramsey-ehrlich.com

ISMAIL RAMSEY (Bar No. 189820)

izzy@ramsey-ehrlich.com

AMY CRAIG (Bar No. 269339)

amy@ramsey-ehrlich.com

RAMSEY & EHRLICH LLP

803 Hearst Avenue

Berkeley, CA 94710

(510) 548-3600 (Tel)

(510) 291-3060 (Fax

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiffs,

vs.

UBER TECHNOLOGIES, INC.;

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

 Defendants.

Case No.: 3:17-cv-00939-WHA

NON-PARTY ANTHONY 

LEVANDOWSKI’S MOTION FOR 

PROTECTIVE ORDER

Given the absence of a final merits decision from the Federal Circuit resolving his 

attorney-client privilege and Fifth Amendment claims, Anthony Levandowski hereby moves for a 

protective order to ensure that his Fifth Amendment rights in regard to the Stroz Report and 

related materials remain protected during the pendency of this civil case. 

This Court rejected Mr. Levandowski’s privilege claims. And on appeal, the Federal 

Circuit declined to issue a writ of mandamus that would overturn the orders compelling 

production. But in doing so, the Federal Circuit applied the heightened mandamus standard of 

review and emphasized (a) that Mr. Levandowski may still seek appellate review of the 

compulsion orders under the ordinary standards of review by means of a post-judgment challenge

and (b) that, during the civil proceedings, this Court has the authority to issue a protective order to 
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NON-PARTY ANTHONY LEVANDOWSKI’S MOTION FOR PROTECTIVE ORDER 

Case No. 3:17-cv-00939-WHA

preserve Mr. Levandowski’s claimed Fifth Amendment rights in connection with any possible 

criminal investigation or prosecution. Fed. Cir. No. 17-2235, Dkt. No. 62-2 at 6, 8, 10, 11, and 

20. 

Put simply, the Federal Circuit has not foreclosed the possibility that Mr. Levandowski 

will later be deemed to have valid Fifth Amendment rights (and other privileges) with respect to 

the Stroz materials. Thus, Mr. Levandowski requests that, in the interests of prudence and 

caution, this Court issue a protective order maintaining strict confidentiality over the Stroz Report 

and the records produced by Mr. Levandowski to Stroz in its investigation and assuring that these 

materials: 1) are used only in this federal civil proceeding; 2) are not publicly disclosed; 3) are not 

produced to any governmental authorities who may be investigating Mr. Levandowski; and 4) are 

not used with any witnesses who will be testifying about the existence, authenticity, or possession 

of records by Mr. Levandowski—so as to ensure, consistent with Kastigar v. United States, that 

these materials not be used, directly or indirectly, by the government in any criminal investigation 

or prosecution of Mr. Levandowski until Mr. Levandowski’s Fifth Amendment claims have been 

finally adjudicated.

ARGUMENT

After this Court denied Mr. Levandowski’s claim that the Stroz Report and records related 

to the Stroz investigation are protected from disclosure by Mr. Levandowski’s Fifth Amendment 

privilege against self-incrimination under Fisher v. United States, 425 U.S. 391 (1975), and 

United States v. Sideman & Bancroft, LLP, 704 F.3d 1197 (9th Cir. 2013), as well as by the 

common interest/joint defense, attorney-client and attorney work product privileges, he sought 

review in the Federal Circuit. Notably, in its Order denying Mr. Levandowski’s two appeals, 

Fed. Cir. No. 17-2235, Dkt. No. 62-2, the Federal Circuit found that it did not have jurisdiction to 

consider the matter as an interlocutory appeal. Id. at 4-6, 23-25. Rather, the appellate court 

treated the matter as a request for a writ of mandamus and refused to grant such a writ under the 

exacting mandamus standard. Id. at 6-23. The court did not purport to resolve Mr. 

Levandowski’s claims as a final matter. Instead, it expressly found that Mr. Levandowski may 
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NON-PARTY ANTHONY LEVANDOWSKI’S MOTION FOR PROTECTIVE ORDER 

Case No. 3:17-cv-00939-WHA

still protect his privileges with a post-judgment appeal, id. at 8, and denied mandamus only 

because it found no “exceptional circumstances amounting to a judicial usurpation of power[ ] or 

a clear abuse of discretion.” Id. at 11 (quoting Cheney v. United States Dist. Court, 542 U.S. 367, 

380 (2004)).

In light of the fact that the court has not finally adjudicated Mr. Levandowski’s claims that 

the Stroz Report and the records he provided to Stroz are protected from disclosure by his Fifth 

Amendment privilege against self-incrimination, the Federal Circuit left open the possibility of a 

protective order as a means of preserving Mr. Levandowski’s privileges in advance of any 

possible criminal action. And it specifically held that this Court has the authority to take such a 

precautionary measure:

Whether the information Mr. Levandowski provided for the Stroz 

Report is relevant to and admissible in any criminal action is not 

before us. Nor is it before us to decide whether the District Court 

may choose to preserve the Stroz Report’s confidentiality until its 

status in any criminal proceeding is resolved. . . . [T]he District 

Court has authority to ensure that any appropriate protective order 

is applied. 

Fed. Cir. No. 17-2235, Dkt. No. 62-2, at 20. See also id. at 10. 

Following the Federal Circuit’s holding, this Court should issue a protective order as a 

prudent prophylactic measure. If an appellate court—or a future district court confronted with a 

criminal action arising from the same general set of facts and circumstances—ultimately 

determines that, under Fisher, the Fifth Amendment does protect the Stroz Report and the records 

provided by Mr. Levandowski to Stroz, in light of the compelled disclosure of these materials 

here, the prosecution would be barred from making any evidentiary or nonevidentiary use of these 

materials in a criminal proceeding. See Kastigar v. United States, 406 U.S. 441, 460 (1972); 

United States v. Oliver North, 910 F.2d 843, 856 (D.C. Cir. 1990). In that event, to assure that 

Mr. Levandowski’s constitutional rights are not compromised, the government would be required 

to show that it did not use the compelled testimony in any way to build its criminal case. See 

Kastigar, 406 U.S. at 461-62 (where testimony has been compelled, the government must prove 
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NON-PARTY ANTHONY LEVANDOWSKI’S MOTION FOR PROTECTIVE ORDER 

Case No. 3:17-cv-00939-WHA

that “all of the evidence it proposes to use was derived from legitimate independent sources”), 

United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003) (clarifying that, in the Ninth 

Circuit, “we have interpreted Kastigar’s prohibition on use to include both direct and indirect 

use”).

Thus, to avoid this possible infringement on Mr. Levandowski’s Fifth Amendment rights, 

while still allowing use by the parties in the pending civil action, this Court should issue a 

protective order that aims to prevent any potentially improper use in the criminal investigation. 

Specifically, the order should require that the Stroz Report and the records provided by Mr. 

Levandowski to Stroz remain confidential and that these materials: 1) only be used in this federal 

civil proceeding; 2) not be publicly disclosed; 3) not be produced to any prosecutorial authorities 

who may be investigating Mr. Levandowski; and 4) not be used with any witnesses who will be 

testifying about the existence, authenticity, or possession of records by Mr. Levandowski. Such 

an order is necessary to ensure that these materials not be used, directly or indirectly, by the 

government in any criminal investigation or prosecution of Mr. Levandowski until Mr. 

Levandowski’s Fifth Amendment claims have been finally adjudicated.

Dated: September 19, 2017 Respectfully Submitted,

/s/ Ismail Ramsey

Miles Ehrlich

Ismail Ramsey

Amy Craig

Ramsey & Ehrlich LLP

803 Hearst Ave.

Berkeley, CA 94710

Tel: (510) 548-3600

Counsel to Non-Party Anthony Levandowski