DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 670) 

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

MICHAEL A. JACOBS (CA SBN 111664)

MJacobs@mofo.com 

ARTURO J. GONZÁLEZ (CA SBN 121490) 

AGonzalez@mofo.com 

ERIC A. TATE (CA SBN 178719) 

ETate@mofo.com 

MORRISON & FOERSTER LLP 

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

Facsimile: 415.268.7522 

KAREN L. DUNN (Pro Hac Vice) 

kdunn@bsfllp.com 

HAMISH P.M. HUME (Pro Hac Vice) 

hhume@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

1401 New York Avenue, N.W. 

Washington DC 20005 

Telephone: 202.237.2727 

Facsimile: 202.237.6131 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. 

and OTTOMOTTO 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

DEFENDANT UBER 

TECHNOLOGIES, INC. AND 

OTTOMOTTO, LLC’S MOTION FOR 

RELIEF FROM NONDISPOSITIVE 

PRETRIAL ORDER OF 

MAGISTRATE JUDGE (DKT. 670) 

Judge: The Honorable William Alsup 

Trial Date: October 10, 2017

Case 3:17-cv-00939-WHA Document 727 Filed 06/23/17 Page 1 of 5
1 

DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 670) 

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Pursuant to Local Civil Rule 72-2,1 Defendants Uber Technologies, LLC and Ottomotto 

LLC (“Uber”) respectfully submit the following Objections to the Order denying Uber’s Motion 

to Quash the subpoena (“Stroz Subpoena”) issued to Stroz Friedberg LLC (“Stroz”) (Dkt. 670).2 

Upon timely objections to a non-dispositive order of the Magistrate Judge, this Court must 

“modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. 

Civ. P. 72(a); see also Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002). 

I. The Holding That Stroz Must Produce Any Communications With The Joint Defense 

Parties Which Are Not On Uber’s Privilege Logs Is Clearly Erroneous (Order at 7-8.) 

The Order holds that Uber waived privilege over any “post-April 11, 2016 

communications with Stroz or post-April 11, 2016 Stroz attorney work-product,” unless such 

documents and communications are listed on Uber’s privilege logs. Order at 7-8. This holding is 

clearly erroneous because the only privilege logs which are the subject of the June 23 hearing are 

privilege logs that Uber served in response to this Court’s March 16 Order, which required Uber 

to “produce for inspection all files and documents downloaded by Anthony Levandowski, Sameer 

Kshirsagar, or Radu Raduta before leaving plaintiff’s payroll and thereafter taken by them[,]” as 

well as “the card reader, thumb drive, or other media used for the downloads, as well as all 

subsequent emails, memoranda, PowerPoints, text messages, or notes that have forwarded, used, 

or referred to any part of said downloaded material.” Dkt. 61 ¶ 4. Uber has logged all responsive 

but privileged documents on the logs that are at issue in the June 23 hearing. However, the Stroz 

Subpoena seeks a broader category of documents: “all documents and communications” 

between and/or among Uber, Ottomotto, Otto Trucking, Levandowski, and Ron or their 

respective counsel. Dkt. 581, RFPs 13, 14, 15, 18, 19, 28, 29. Thus, Stroz may have responsive 

documents that do not appear on any privilege log Uber has served. Uber should not be deemed 

 

1

 Uber and Ottomotto believe that the Court should, as called for in Local Rule 72-2, decide these 

Objections without a hearing. 

2

 At a hearing on Friday June 23 at which counsel for Uber, Otto Trucking, and Waymo were 

present, Judge Corley ruled from the bench that, unless a subsequent order issues, the order (Dkt. 

670) is stayed until the Court has ruled on Uber’s objections. Uber has informed counsel for Stroz 

Friedberg of this oral order. Should Judge Corley’s order not be stayed, Uber reserves the right to 

file a motion to stay in order to prevent Stroz’s production of documents and materials on June 

27, 2017, that are subject to Uber’s objections. 

Case 3:17-cv-00939-WHA Document 727 Filed 06/23/17 Page 2 of 5
2 

DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 670) 

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

to have waived privilege over communications or work product because it has not logged 

documents responsive to RFPs served on a non-party in a subpoena that was served after Uber 

served its privilege logs in response to the March 16 Order. 

II. The Holding That Stroz Must Produce Documents In Response To RFPs 1-5 Is 

Contrary To Law And Clearly Erroneous (Order at 8 ¶ 1.) 

The holding that Stroz must produce agreements between Stroz and others regarding the 

due diligence investigation is contrary to law and clearly erroneous. As explained in Uber’s 

Opposition on the Motion to Compel the Due Diligence Report and Exhibits (Dkts. 369 at 22-233) 

and in Uber’s Motion for Relief from a Non Dispositive Pretrial Order (Dkt. 575 at 4-5) and reply 

in support thereof (Dkt. 608 at 3), the disclosure of those agreements to any other joint defense 

party was not a disclosure to an “adversary.” Thus, no work product protection over those 

agreements was waived. See Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 

2014); United States v. Anthem, Inc., No. 1:16-cv-1493 (ABJ), 2016 WL 8461264, at *8 (D.D.C. 

Oct. 10, 2016). 

Additionally, the holding that “by relying on an agreement with Stroz, [Uber and 

Levandowski] have waived any privilege in other agreements with Stroz” is clearly erroneous and 

contrary to law. Dkt. 670 at 8. Uber has relied only on non-privileged portions of its engagement 

letter with Stroz (Dkt. 370-4) and the side letter between Gardner and Stroz (Dkt. 545-7). There 

can be no waiver when a party relies on only non-privileged portions of a document. Avocent 

Redmond Corp. v. Rose Elecs., Inc., 516 F. Supp. 2d 1199, 1202 (W.D. Wash. 2007) (where 

redacted attorney invoices did not reveal any privileged content, movant “need not be concerned” 

that producing party “will effectively use the invoices as both a sword and a shield”). Indeed, that 

is why parties routinely produce non-privileged portions of documents while redacting privileged 

portions. Weiss v. Nat’l Westminister Bank, PLC, Nos. CV 05-4622(CPS)(MDG), CV 07-

916(CPS)(MDG), 2008 WL 5115027, at *2 n.2 (E.D.N.Y. Dec. 3, 2008) (“[T]he production of 

partially redacted documents does not . . . constitute a waiver of any applicable privilege.”); Fed. 

 

3

 Page cites are to the ECF page numbering. 

Case 3:17-cv-00939-WHA Document 727 Filed 06/23/17 Page 3 of 5
3 

DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 670) 

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Deposit Ins. Corp. v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 WL 656660, at *6 (N.D. Ill. 

Feb. 20, 2014) (“L & G has not identified any privileged information disclosed in Katten’s 

invoices which FDIC is using to gain a tactical advantage. . . In fact, L & G complains about the 

fact that privileged information has been redacted from the invoices. . . . Katten is entitled to 

produce redacted invoices to support a claim for attorneys’ fees while also preserving attorneyclient privilege and work-product protection” over those invoices); The Shinnecock Indian Nation 

v. Kempthorne, 652 F. Supp. 2d 345, 365, 368 (E.D.N.Y. 2009) (because privilege holder 

properly redacted opinion work product while producing non-privileged portions of the same 

document, there has been “no waiver of the privilege”); Love v. Permanente Med. Grp., No. C12-05679 DMR, 2014 WL 644948, at *3 (N.D. Cal. Feb. 19, 2014) (approving of redaction based 

on the attorney-client privilege). 

III. The Holdings That Stroz Must Produce Documents In Response To RFPs 6-8, and 

RFPs 13-15, 18-19, 28, and 29 Are Contrary to Law and Clearly Erroneous (Order 

at 9 ¶ 2; 10 ¶ 64

.) 

For the reasons stated in Uber’s Opposition and Sur-reply submitted on the Motion to 

Compel the Due Diligence Report and Exhibits (Dkts. 369, 474) and for the reasons stated in 

Uber’s Motion for Relief from a Non Dispositive Pretrial Order (Dkt. 575) and reply in support 

thereof (Dkt. 608), the Court’s holding that Stroz must produce the Due Diligence Report and its 

exhibits, along with any other analyses or reports (RFPs 6-8), is contrary to law and clearly 

erroneous. Similarly, the Court’s holding that Stroz must produce communications among Stroz, 

MoFo, Uber, Ottomotto, Otto Trucking, and OMM (RFPs 13-15, 18-19, 28, and 29) is contrary to 

law and clearly erroneous. Although the Court has already overruled these objections, Uber 

preserves its objections on these grounds for any appeal it may file. See Simpson v. Lear 

Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.1996). 

 Additionally, the Order is clearly erroneous and contrary to law for the separate and 

independent reason that it requires production of communications among Stroz, Uber, MoFo, 

Ottomotto, Otto Trucking, and OMM post-dating April 11, 2016—grounds that the Court’s June 

 

4

 The Order mistakenly includes RFP 30 in this section, but RFP 30 is covered at paragraph 3 and 

Uber does not object to production of documents in response to RFP 30. 

Case 3:17-cv-00939-WHA Document 727 Filed 06/23/17 Page 4 of 5
4 

DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 670) 

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

21 Order did not reach but that Uber has extensively briefed, both in its prior objections (Dkts. 

575 and 608), as well as in opposition to Waymo’s letter brief on outstanding privilege issues 

(Dkt. 658). In short, Uber, Ottomotto, Otto Trucking, Levandowski, and Ron shared a common 

legal interest at least as of April 11, 2016, the date the Put Call Agreement was signed and that 

common legal interest continued at least through August 23, 2016, the date Ottomotto and Uber 

closed the acquisition of Ottomotto. Thus, sharing of communications among these joint defense 

parties did not amount to a waiver. 

IV. The Holding That Stroz Must Produce Documents In Response To RFP 11 Is 

Contrary to Law and Clearly Erroneous (Order at 9 ¶ 5.) 

The holding that Stroz must produce communications about the joint defense agreement 

among Uber, Ottomotto, Otto Trucking, Levandowski and Ron is clearly erroneous and contrary 

to law. Uber has not waived any privilege or work product protected in these documents by 

putting the joint defense agreement at issue. Relying on non-privileged facts about that 

agreement—including the written agreement itself—does not waive any privilege and work 

product protection over other responsive communications. See supra § II. To the extent nonprivileged communications are responsive to this request, Uber does not object to their 

production. 

CONCLUSION 

 For the foregoing reasons, Uber requests that the Court vacate paragraphs 1, 2, 5, and 6 on 

pages 8-10 of the Order. 

 

Dated: June 23, 2017 MORRISON & FOERSTER LLP 

BOIES SCHILLER FLEXNER LLP 

By: /s/ Karen L. Dunn 

KAREN L. DUNN 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. and 

OTTOMOTTO LLC

Case 3:17-cv-00939-WHA Document 727 Filed 06/23/17 Page 5 of 5