LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

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)

Attorneys for Non-Party Anthony Levandowski

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

v.

UBER TECHNOLOGIES, INC., et al.,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

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

ANTHONY LEVANDOWSKI’S REPLY 

IN SUPPORT OF MOTION FOR 

INTERVENTION UNDER RULE 24

AND MODIFICATION OF ORDER 

GRANTING IN PART AND DENYING 

IN PART PROVISIONAL RELIEF

Date: June 7, 2017

Time: 10:00 a.m.

Courtroom: The Honorable William H. 

Alsup, Courtroom 8, 19th Floor

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 1 of 18
i

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

TABLE OF CONTENTS

I. THE COERCIVE CHOICE IMPOSED BY THE COURT’S ORDER HAS NOW BEEN 

SHARPENED EVEN FURTHER....................................................................................... 1

II. MR. LEVANDOWSKI MUST BE PERMITTED TO INTERVENE ................................ 2

A. Timeliness............................................................................................................................ 2

B. Mr. Levandowski Has a “Significantly Protectable” Interest.............................................. 3

C. Impediment to Mr. Levandowski’s Ability to Protect His Interests.................................... 3

D. The Defendants Cannot Adequately Represent Mr. Levandowski’s Interests.................... 4

III. THE COURT SHOULD MODIFY ITS ORDER TO AVOID VIOLATING MR. 

LEVANDOWSKI’S FIFTH AMENDMENT RIGHTS...................................................... 4

A. The Court’s Order, if Unmodified, Constitutes State Action .............................................. 5

B. Termination Constitutes a Threat of Substantial Economic Sanction

for Mr. Levandowski .......................................................................................................... 7

C. The Court’s Order Seeks Waiver of Mr. Levandowski’s Privileges................................... 9

IV. THE COURT’S QUESTIONS .......................................................................................... 11

A. Question No. 1 ................................................................................................................... 11

B. Question No. 2 ................................................................................................................... 11

C. Question No. 3 ................................................................................................................... 12

V. CONCLUSION.................................................................................................................. 14

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 2 of 18
ii

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

TABLE OF AUTHORITIES

Cases

Blum v. Yaretsky, 

457 U.S. 991 (1982)...................................................................................................................... 12

Brentwood Acad. v. Tennessee Secondary Sch. Athl. Ass’n, 

531 U.S. 288 (2001)........................................................................................................................ 5

Doe v. United States, 

487 U.S. 201 (1988)........................................................................................................................ 9

eBay, Inc. v. Digital Point Solutions, Inc.,

No. C 08-4052 JF (PVT), 2010 U.S. Dist. LEXIS 7997 (N.D. Cal. Jan. 12, 2010) ..................... 10

Edmonson v. Leesville Concrete Co., 

500 U.S. 614 (1991)........................................................................................................................ 5

Fisher v. United States,

425 U.S. 391 (1976)........................................................................................................................ 9

Gardner v. Broderick, 

392 U.S. 273 (1968)........................................................................................................................ 5

Garrity v. New Jersey, 

385 U.S. 493 (1967)............................................................................................................... passim

GE v. Liang,

No. CV 13-08670 DDP (VBKx), 2014 U.S. Dist. LEXIS 36243(C.D. Cal. Mar. 19, 2014)...... 10

Gilman v. Marsh & McLennan Cos., 

826 F.3d 69 (2nd Cir. 2016)........................................................................................................ 6, 7

Griffin v. California, 

380 U.S. 609 (1965)........................................................................................................................ 8

Lefkowitz v. Cunningham, 

431 U.S. 801 (1977).................................................................................................................... 4, 8

Malloy v. Hogan, 

378 U.S. 1 (1964)............................................................................................................................ 8

Skinner v. Railway Labor Executives’ Ass’n, 

489 U.S. 602 (1989)........................................................................................................................ 5

Southwest Ctr. for Biological Diversity v. Berg, 

268 F.3d 810 (9th Cir. 2001) .......................................................................................................... 3

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 3 of 18
iii

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

Spevack v. Klein, 

385 U.S. 511 (1967).................................................................................................................... 5, 8

Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 

392 U.S. 280 (1968)........................................................................................................................ 4

United States ex rel. Sanney v. Montanye, 

500 F.2d 411 (2d Cir. 1974)............................................................................................................ 8

United States v. Antelope, 

395 F.3d 1128 (9th Cir. 2005) ........................................................................................................ 8

United States v. Bright,

596 F.3d 683 (9th Cir. 2010) ........................................................................................................ 10

United States v. Goodpaster, 

65 F. Supp. 3rd 1016 (D. Or. 2014)................................................................................................ 5

United States v. Hubbell, 

530 U.S. 27 (2000)........................................................................................................................ 11

United States v. Oregon, 

745 F.2d 550 (9th Cir. 1984) .......................................................................................................... 2

United States v. Sideman & Bancroft, LLP,

704 F.3d 1197, 1201-02 (9th Cir. 2013)....................................................................................... 10

United States v. Stein, 

541 F.3d 130 (2nd Cir. 2008)................................................................................................. passim

Westlands Water Dist. v. United States, 

700 F.2d 561 (9th Cir. 1983) .......................................................................................................... 2

Rules

Rule of Federal Procedure 24(a)................................................................................................. 2, 3

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 4 of 18
1

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

The issue before the Court is governed by a straight-forward principle rooted in binding 

Supreme Court authority: The government—no matter the branch—may not force a person to 

choose between her continued employment and her Fifth Amendment rights. It may not do so as 

a direct employer. And it may not do so by proxy, using a private employer as its instrument.

Waymo seeks to prevent Mr. Levandowski from gaining any relief from this

unconstitutional dilemma by asking that he be barred from even presenting his constitutional 

objections, and by advancing constructions of applicable law that defy reason and logic. 

Because none of Waymo’s objections are well founded, Mr. Levandowski’s motion should be

granted in full.

I. THE COERCIVE CHOICE IMPOSED BY THE COURT’S ORDER HAS NOW 

BEEN SHARPENED EVEN FURTHER

Since the filing of our motion, a new development has added additional force to Mr. 

Levandowski’s position: On May 26, 2017, Uber sent Mr. Levandowski a new letter stating that, 

because he has thus far failed to “cooperat[e]” with Uber’s efforts to comply with the Court’s 

May 11, 2017 Order (the “Preliminary Injunction Order” or “Order”), Mr. Levandowski will be 

terminated on June 15, 2017, unless he “cures” the failure to cooperate by immediately

complying with the demands contained in Uber’s original May 15, 2017 letter. See

Supplemental Declaration of Ismail Ramsey (“Supp. Ramsey Decl.”) at ¶ 2 & Ex. B. 

The Preliminary Injunction Order has thus placed Mr. Levandowski on the horns of an

unconstitutional dilemma: either he must waive his Fifth Amendment rights and provide the 

information and materials specified by the Order or face immediate firing. Before this Order, 

Mr. Levandowski was facing no threat of termination from the exercise of his constitutional 

rights. Now, as a result of the Order’s command that Uber “exercise the full extent of [its] 

corporate, employment, contractual, and other authority,” Dkt. 433 at 23, Mr. Levandowski’s

continued employment hinges on his willingness to waive his Fifth Amendment privilege.

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 5 of 18
2

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

II. MR. LEVANDOWSKI MUST BE PERMITTED TO INTERVENE

Waymo first asks the Court to deny Mr. Levandowski an opportunity to defend his 

constitutional rights by rejecting his motion to intervene. The various rationales it advances for 

this position, however, are unpersuasive, and Federal Rule of Federal Procedure 24(a) requires 

that Mr. Levandowski be permitted to intervene.1

A. Timeliness

Mr. Levandowski filed the instant motion just two days after receiving Uber’s letter 

threatening his employment and only four days after the Preliminary Injunction Order was filed 

on the public docket. Nevertheless, Waymo insists that Mr. Levandowski’s motion was 

untimely. Dkt. 512 at 6-7. The thrust of Waymo’s argument is that Mr. Levandowski should 

have anticipated the Court’s Order and sought to intervene for all purposes from the beginning of 

the case. Id. That is unrealistic. 

As an initial matter, when Mr. Levandowski first moved to intervene on April 5, 2017, 

Waymo asked the Court to limit Mr. Levandowski’s intervention “for the sole purpose of 

litigating his Motion for an Order Modifying the Court’s March 16, 2017 Order.” Dkt. 162 at 

2:6-10. The Court granted Waymo’s request and expressly limited Mr. Levandowski’s

intervention “solely for purposes” of litigating his Motion to Modify the Court’s Expedited 

Discovery Order. Dkt. 169 at 4:10-13. More recently, Waymo has continued to contest Mr. 

Levandowski’s efforts to intervene, even on limited issues infringing upon his rights. See, e.g., 

Dkt. 451. Waymo’s suggestion that Mr. Levandowski’s failure to seek broad intervention on the 

issue of provisional relief—where no impairment of his constitutional rights was even proposed 

or contemplated—somehow constituted a waiver of his right to protect his constitutional 

privileges is meritless.

In any event, timeliness, like the other requirements of Rule 24(a), is “to be construed in 

favor of the applicant for intervention.” Westlands Water Dist. v. United States, 700 F.2d 561, 

563 (9th Cir. 1983); see also United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984). Mr. 

 

1 In the alternative, the Court should permit intervention under Rule 24(b). See Dkt. 466 at 8-9.

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 6 of 18
3

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

Levandowski is not a party to this fast-moving litigation, but the conduct of discovery in this 

case has implicated his privileges. When that has occurred, as in this instance, he has moved 

expeditiously to protect his interests. Mr. Levandowski brought this motion within two days of 

being confronted with the unconstitutional threat to his employment and long before Uber’s 

compliance with the Preliminary Injunction Order was due. See Dkt. 433 at 22-26. Because this

motion poses little threat of serious prejudice to Waymo, will at most cause only a short delay as

to limited portions of the Order that impact Mr. Levandowski, and will otherwise serve the

important purpose of protecting a constitutional privilege, it is timely. See Oregon, 745 F.2d at 

552. 

B. Mr. Levandowski Has a “Significantly Protectable” Interest

Surprisingly, Waymo asserts that Mr. Levandowski’s interests in his own constitutional 

and attorney-client privileges are insufficient to permit intervention. Dkt. 512 at 7-9. Waymo’s 

contention, however, cannot survive the numerous cases cited in our opening papers, each of 

which holds that intervention is mandated under Rule 24(a) when the applicant seeks to protect a 

privilege. See Dkt. 466 at 7 (citing cases). Waymo addresses none of those authorities, instead 

arguing that Mr. Levandowski’s privileges somehow do not apply here.

But, as discussed below, Waymo is incorrect: Mr. Levandowski’s privileges protect him 

from being compelled by state action to produce records and information. In any case, a motion 

for intervention is not the appropriate stage to litigate the merits of such questions; the issue 

under Rule 24(a) is whether Mr. Levandowski has asserted a protectable interest. Southwest Ctr. 

for Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001). Plainly, he has done so.

C. Impediment to Mr. Levandowski’s Ability to Protect His Interests

Waymo also argues that the Preliminary Injunction Order will not impair Mr. 

Levandowski’s interests. The apparent basis for Waymo’s argument is its disapproval of Mr. 

Levandowski’s assertion of his Fifth Amendment privilege in this litigation. See Dkt. 512 at 9-

10. This is not a proper ground for refusing intervention. In determining an intervention motion, 

the Court must accept Mr. Levandowski’s assertions as true. Southwest Ctr. for Biological 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 7 of 18
4

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

Diversity, 268 F.3d at 819. Mr. Levandowski has provided a more than colorable basis to 

demonstrate that the Court’s Order threatens his Fifth Amendment privilege against selfincrimination. And, as this Court is aware, Mr. Levandowski is currently involved in ongoing 

efforts with both public and in camera submissions to protect his privileges, matters which have 

yet to be ruled upon by Magistrate Judge Corley or this Court. See Part III, infra.

D. The Defendants Cannot Adequately Represent Mr. Levandowski’s Interests

Finally, there is Waymo’s most surprising assertion: that Uber can adequately represent 

Mr. Levandowski’s interest in avoiding the unconstitutional threat to his employment. Dkt. 512 

at 10-12. This contention is put to rest simply by recalling that it is Uber itself who issued the 

unconstitutional threat to Mr. Levandowski’s employment after the Court ordered it to do so. See

Dkt. 466-2; Supp. Ramsey Decl. Ex. B. Uber did not seek to modify the Court’s demands of Mr. 

Levandowski. Rather, Uber dutifully passed those demands along, backing them with the threat 

of imminent termination. Plainly, Uber cannot be counted upon to assert Mr. Levandowski’s 

rights in this situation. Further, because the Fifth Amendment is a personal right, Mr. 

Levandowski is best situated to assert it. This would be true even if Uber had not been directed 

by the preliminary injunction order to fire Mr. Levandowski. For these reasons and all the others 

discussed above intervention should be granted.

III. THE COURT SHOULD MODIFY ITS ORDER TO AVOID VIOLATING MR. 

LEVANDOWSKI’S FIFTH AMENDMENT RIGHTS

The legal basis of Mr. Levandowski’s motion is uncontroversial: the government may not 

compel an individual to choose “between self-incrimination or job forfeiture.” Garrity v. New 

Jersey, 385 U.S. 493, 497, 500 (1967). When the government presents an individual with “a 

choice between the rock and the whirlpool” of either waiving his Fifth Amendment or losing his 

employment, the government has exacted such a high price for the exercise of the Fifth 

Amendment that the resulting statements are deemed to be constitutionally compelled. Id. at 

497-98; see also Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977); Uniformed Sanitation Men 

Ass’n v. Comm’r of Sanitation, 392 U.S. 280, 282-83 (1968); Gardner v. Broderick, 392 U.S. 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 8 of 18
5

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

273, 278-79 (1968); Spevack v. Klein, 385 U.S. 511, 517-18 (1967) (pl. opn.); United States v. 

Goodpaster, 65 F. Supp. 3rd 1016, 1024 (D. Or. 2014). Here, the government—the Court—has

imposed just such “a choice between the rock and the whirlpool.” Unless the Court withdraws 

the compulsion, it will work a constitutional error.

A. The Court’s Order, if Unmodified, Constitutes State Action

Waymo expresses doubts about whether a Garrity-style violation of the Fifth 

Amendment privilege against self-incrimination can be enacted by the government through a 

private party. Dkt. 512 at 15-16. But the cases make clear that Waymo’s doubts are groundless. 

Conduct by a private actor can implicate the constitution “if the private party acted as an 

instrument or agent of the Government.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 

602, 615 (1989). Although conduct by private parties “lies beyond the Constitution’s scope in 

most instances, governmental authority may dominate an activity to such an extent that its 

participants must be deemed to act with the authority of the government and, as a result, be 

subject to constitutional constraints.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 

(1991). The state action question “turns on the degree of the Government’s participation in the 

private party’s activities.” Skinner, 489 U.S. at 615 (finding that the Fourth Amendment was 

implicated by a railway’s searches because the searches were a product of the “compulsion of 

sovereign authority”); see, e.g., Brentwood Acad. v. Tennessee Secondary Sch. Athl. Ass’n, 531 

U.S. 288, 295-300 (2001) (discussing various state action tests and finding the Fourteenth 

Amendment implicated by a private association’s decisions); Edmonson, 500 U.S. at 620-28 

(finding the Fifth Amendment due process clause implicated when private litigants employ 

peremptory challenges to exclude jurors on account of their race); United States v. Stein, 541 

F.3d 130, 147-51 (2nd Cir. 2008) (finding a Sixth Amendment violation based on a private 

company’s decisions because the decisions were the product of government action). 

The overriding question for the Court is whether its Order renders Uber’s follow-on

“waive-your-Fifth-or-get-fired” threat to Mr. Levandowski “state action.” In our opening papers, 

we drew an analogy to Stein, 541 F.3d 130, explaining that the Court’s explicit command for

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 9 of 18
6

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

Uber to exercise the full extent of its powers was more direct and coercive than the policy 

statements communicated by federal prosecutors in Stein. See Dkt. 446 at 14. Waymo tries to 

distinguish Stein, Dkt. 512 at 16-17, but the case on which Waymo relies most heavily to 

distinguish Stein—Gilman v. Marsh & McLennan Cos., 826 F.3d 69 (2nd Cir. 2016)—only 

serves to clarify why Stein serves as such a useful analog here. 

In Gilman, two individuals sued their former employer, Marsh, for firing them after they 

refused to discuss with the employer conduct that was the subject of a criminal investigation. Id. 

at 71. One argument advanced by the plaintiffs was that the employer’s “interview demands 

constitute[d] state action that infringed [on their] right against self-incrimination.” Id. at 76. The 

plaintiffs sought to rely on Stein for the proposition that constitutional restrictions applied 

because the employer was effectively a state actor. Id. But the Gilman court rejected the 

analogy to Stein—not because the state action principles were inapplicable in the context of a 

violation of the right against self-incrimination, but because the court found that the employers’ 

actions were simply not caused by the government’s activities:

Marsh had good institutional reasons for requiring [the plaintiffs] to sit for 

interviews or else lose their jobs . . . . [Unlike in Stein,] [t]here is no evidence that 

the [prosecutor] ‘forced’ Marsh to demand interviews, ‘intervened’ in Marsh’s 

decisionmaking, ‘steered’ Marsh to request interviews, or ‘supervised’ the 

interview requests . . . . [¶] . . . . [Plaintiffs] adduced no evidence that Marsh’s 

request for an interview arose out of pressure or coercion from the [prosecutor].

Id. at 76-77. The court further distinguished Stein because KPMG, the employer in Stein, “had 

no institutional interest in stripping its employees of their chosen defense counsel and [the 

employer] was forced to abandon a longstanding policy that it had decided to continue; it was 

therefore found that government compulsion was the ‘but for’ cause” of the employer’s action. 

Id. at 77. Thus, like Stein (with respect to the Sixth Amendment), Gilman (as to the Fifth 

Amendment) focuses on the question of whether private conduct was sufficiently encouraged by 

the government to constitute state action, thereby putting constitutional requirements in play.

On the continuum of increasing government encouragement that runs from Gilman to

Stein, the extent of government intrusion from the Court’s Order here goes beyond even what 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 10 of 18
7

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

was present in Stein, which never amounted to a direct order from the government. An express 

command, as is present here, goes far beyond the “steering” and “supervising” that was present 

in Stein and might have altered the result in Gilman. Gilman, 826 F.3d at 76-77. Under its 

current language, the Order requires Uber to use all of its powers against Mr. Levandowski

(which, of course, includes the power to terminate) to get him to relent in his reliance on his legal 

privileges. It is difficult to imagine any stronger “steering” or “supervision” from the 

government than a direct court order backed by the power of contempt. 

Further, consistent with what occurred in Stein, but unlike in Gilman, the Court’s Order

has compelled Uber to change its previous course of conduct. Before the Preliminary Injunction 

Order, Uber had not threatened Mr. Levandowski’s employment despite his repeated assertion of 

his Fifth Amendment rights; and Uber’s May 15 letter even recounts its previous reluctance to 

respond to these assertions with adverse action. Dkt. 466-2 at 3 (“While we have respected your 

personal liberties, it is our view that the Court’s Order requires us to make these demands of you. 

Footnote 9 of the Order specifically states that ‘in complying with this order, Uber has no excuse 

under the Fifth Amendment to pull any punches as to Levandowski.’ Thus, we must demand 

that you set these privileges aside and confirm that you will promptly comply with the Court’s 

Order.”). What changed is the issuance of the Court’s Preliminary Injunction Order and its 

directive to “exercise the full extent of [Uber’s] corporate, employment, contractual, and other 

authority” to get Mr. Levandowski to change course. Dkt. 433 at 23. As such, the Court’s 

Order, at a minimum, “steered” Uber’s decision to threaten Mr. Levandowski with immediate 

termination, thus constituting compulsion.

B. Termination Constitutes a Threat of Substantial Economic Sanction for Mr. 

Levandowski

Waymo next argues that the constitutional principles announced in Garrity and its 

progeny do not apply to Mr. Levandowski because he is assumed to be a person of means. Dkt. 

512 at 19-20. But this is not the law. The principle underlying Garrity is that the “government 

cannot penalize assertion of the constitutional privilege against compelled self-incrimination by 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 11 of 18
8

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

imposing sanctions to compel testimony.” Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). 

The Fifth Amendment guarantees “the right of a person to remain silent unless he chooses to 

speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.” 

Malloy v. Hogan, 378 U.S. 1, 8 (1964). “In this context ‘penalty’ is not restricted to fine or 

imprisonment. It means . . . the imposition of any sanction which makes assertion of the Fifth 

Amendment privilege ‘costly.’” Spevack v. Klein, 385 U.S. 511, 515 (1967) (pl. opn.; quoting 

Griffin v. California, 380 U.S. 609, 614 (1965)). 

As the Ninth Circuit recognized in United States v. Antelope, 395 F.3d 1128 (9th Cir. 

2005), the precedents that derive from Garrity are commonly called “penalty cases.” Id. at 1136. 

Penalties deemed to be sufficiently “costly” to offend the Fifth Amendment include termination 

of employment, loss of a professional license, ineligibility to receive government contracts, and 

the loss of the right to participate in political associations. Id. (citing cases). Contrary to 

Waymo’s suggestion, neither the Supreme Court nor the Ninth Circuit has ever suggested that 

the “penalty” must threaten to leave the individual destitute to rise to a constitutional dimension.

United States ex rel. Sanney v. Montanye, 500 F.2d 411 (2d Cir. 1974), on which Waymo 

relies, does not suggest otherwise. The court’s holding in Montanye was that the petitioner, “a 

transient manual laborer who had been on the job for at most a couple of days,” was not subject 

to a substantial penalty because he had no real expectation of future earnings. Id. at 415-16 & 

n.3. In fact, the court expressly stated that its holding was not dependent on the petitioner’s 

socioeconomic status. Id. at 516 n.3. 

Mr. Levandowski is in an entirely different situation than the petitioner in Montanye. His 

employment at Uber, at least until the Preliminary Injunction Order, was stable and stood to 

provide him with considerable financial remuneration for his efforts—including specific 

compensation for achieving various technological and business milestones in the months and 

years ahead. See, e.g., Dkt. 510 (term sheet). In sharp contrast to the day laborer in Montanye, 

Mr. Levandowski has committed his entire career to advancing the self-driving car industry. Mr. 

Levandowski spent nine years at Google before joining Uber as a vice president, a position he 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 12 of 18
9

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

intended to stay in for years to come. Termination by Uber constitutes a significant penalty, 

carrying considerable opportunity and economic costs.

C. The Court’s Order Seeks Waiver of Mr. Levandowski’s Privileges

Waymo next argues that Mr. Levandowski’s privileges do not apply to the records and 

information implicated by the Court’s Preliminary Injunction Order, and thus that the Order does 

not threaten those privileges. Dkt. 512 at 20-23. Again Waymo is wrong. 

As an initial matter, contrary to Waymo’s suggestion, the Court’s Order goes well 

beyond “merely” requiring the return of documents. The order demands that Uber compel Mr. 

Levandowksi to identify and produce responsive documents and report what he “saw or heard, 

when [he] saw or heard it, and for what purpose.” Dkt. 433 at 24:3-25:2. The Order thus 

requires Mr. Levandowski to make affirmative representations and otherwise use the “contents 

of his own mind” to select relevant records, thereby admitting their existence and authenticity. 

See Doe v. United States, 487 U.S. 201, 211 (1988) (“It is the ‘extortion of information from the 

accused,’ the attempt to force him ‘to disclose the contents of his own mind,’ that implicates the 

Self-Incrimination Clause.” (citations omitted)). As we have previously explained, if forcing Mr. 

Levandowski to undertake these steps could tend to furnish a link in a chain of possible 

incrimination, the Fifth Amendment bars such a demand. See, e.g., Dkt. 147 at 5-8, 244 at 2-7.

Indeed, Uber’s May 15, 2017 letter to Mr. Levandowski is unequivocal that he must waive his 

constitutional rights: “this letter requires you to turn over information wherever located, 

including but not limited to, your personal devices, and to waive any Fifth Amendment 

protection you may have.” Dkt. 466-2 at 3. 

Waymo further argues that Mr. Levandowski has not shown how the act of producing the

requested documents implicates his Fifth Amendment rights. Dkt. 215 at 21. This argument is a

red herring. As Mr. Levandowski has previously explained, the question under Fisher v. United

States, 425 U.S. 391 (1976) and its progeny is whether the government was already aware of the

information that might be conveyed through the act of producing the records. See, e.g., Dkt. 244

at 5-7. The requesting party has the burden of demonstrating that the government already had

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 13 of 18
10

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

such extensive knowledge as to render the existence, possession, location, and authenticity of the

records a “foregone conclusion.” Id.; see also United States v. Bright, 596 F.3d 683, 692 (9th

Cir. 2010); GE v. Liang, No. CV 13-08670 DDP (VBKx), 2014 U.S. Dist. LEXIS 36243 at *13-

15 (C.D. Cal. Mar. 19, 2014); eBay, Inc. v. Digital Point Solutions, Inc., No. C 08-4052 JF

(PVT), 2010 U.S. Dist. LEXIS 7997 at *21-22 (N.D. Cal. Jan. 12, 2010). Here, there has been

no showing of what the government knows in this case, and thus any production of relevant

records threatens to incriminate Mr. Levandowski.

Put simply, Waymo is accusing Mr. Levandowski of a crime. In light of these

allegations, and on this record, the notion that Mr. Levandowski’s act of production would not

implicate his Fifth Amendment rights is meritless.

There is also no question that the Order implicates Mr. Levandowski’s attorney-client 

privilege. See Dkt. 512 at 21-23. The Order demands that Uber report not only on the contents 

of Mr. Levandowski’s mind, but also information known by any of “his separate counsel.” Dkt.

433 at 24:3-25:2. In compliance with the Court’s clear directive, Uber demanded that Mr. 

Levandowski waive his attorney-client privileges. Dkt. 466-2 at 3. Waymo seeks to discount the 

importance of the Court’s ruling by arguing (contrary to precedent) that information known to 

Mr. Levandowski’s personal attorneys cannot implicate Mr. Levandowski’s Fifth Amendment

rights. But both the Supreme Court and the Ninth Circuit have held that, where an individual has

provided documents protected by the Fifth Amendment to his or her attorney for the purpose of

obtaining legal advice, those documents continue to be protected—by both the attorney-client

privilege and the individual’s Fifth Amendment rights. Fisher, 425 U.S. at 404-405; United

States v. Sideman & Bancroft, LLP, 704 F.3d 1197, 1201-02 (9th Cir. 2013). The Court’s Order,

as carried out by Uber, would require waiver of the privileges protected under those precedents.

Finally, as to information known to Uber’s attorneys, we have asserted that some such

information is covered by a common interest privilege. See Dkt. 379. The question whether the

common interest privilege properly applies remains pending before Judge Corley. For the

reasons expressed in our motion papers, we again assert that the affected records are privileged.

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 14 of 18
11

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

IV. THE COURT’S QUESTIONS

In its May 19, 2017 order, the Court instructed the litigants to address three specific 

questions. Dkt. 471 at 2. Mr. Levandowski addresses each question in turn.2

A. Question No. 1

When an employee steals and retains a competitor’s trade secrets, may the 

employer, upon learning of the theft, direct the employee to make it right with the 

competitor and to return all copies of the trade secrets to the competitor on pain of 

adverse employment action, up to and including termination? Does the Fifth 

Amendment prevent such private action?

Dkt. 471 at 2. Without accepting the Court’s hypothetical, the Fifth Amendment does not govern 

purely private action. Our contention, however, is that the adverse employment action being 

threatened by Uber is the product of state action.

B. Question No. 2

In such circumstances, may a court order the employer to exercise the full scope 

of its private authority over the employee to cause the employee to return all 

copies of the stolen trade secrets? Does the Fifth Amendment bar such an order?

Dkt. 471 at 2. 

Again, without accepting the underlying premise of the Court’s hypothetical, the answer 

to the question (as argued extensively in our original motion papers and above) is “No.” Where 

an employee has a Fifth Amendment right under United States v. Hubbell, 530 U.S. 27 (2000) to

avoid incriminating herself through the act of producing records, a court’s order that a private 

employer threaten that person’s employment to force production of those records runs afoul of 

the Fifth Amendment. Absent a grant of immunity, such an order is unconstitutional state action.

 

2 To be clear, Mr. Levandowski makes no comment about the premises of the Court’s questions, 

some of which appear to assume that the hypothetical employee in Mr. Levandowski’s position 

is guilty of the theft of trade secrets.

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 15 of 18
12

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

C. Question No. 3

Where an employer learns that its employee has stolen trade secrets from a 

competitor and fails to, on its own initiative, use the full scope of its private 

authority over the employee to return all copies of the trade secrets to their

rightful owner, may the Court instruct the jury that it may consider such failure as 

a ratification by the employer of the theft?

Dkt. 471 at 2. Mr. Levandowski expresses no opinion about whether such an instruction might 

be proper in some other hypothetical case. But in this case, the threat of an adverse jury 

instruction against Uber if it does not use all of its powers to coerce Mr. Levandowski would still 

render Uber’s threat to Mr. Levandowski’s employment the product of state action, and thus still 

violate Garrity and its progeny.

As previously discussed, state action may be found when the government has “exercised 

coercive power or has provided such significant encouragement, either overt or covert, that the 

[private actor’s] choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 

U.S. 991, 1004 (1982); see also Part III.A, supra. The Court’s rulings to date must be 

considered at least “significant encouragement” to Uber. Uber surely recognizes that the Court 

desires a particular outcome as to Mr. Levandowski—namely, that he be pressured to provide 

materials and information as to which he has asserted privilege. The Court’s question only adds 

to that encouragement: an adverse jury instruction could cause great damage to Uber’s case. The 

only safe course for Uber, as a direct consequence of the Court’s suggestion, would be to 

maintain its threat to Mr. Levandowski’s employment and avoid any jeopardy at trial.

Again the Stein case is instructive. There, the court found that a company’s “adoption 

and enforcement of a policy under which it conditioned, capped and ultimately ceased advancing 

legal fees to [certain criminal] defendants followed as a direct consequence of the government’s 

overwhelming influence, and that [the company’s] conduct therefore amounted to state action.” 

541 F.3d at 136. The government’s mechanism of “influence” in Stein was not an express 

command. Rather, the influence stemmed from policies and statements by the United States 

Attorney’s Office that indicated that the company was more likely to be indicted if it did not 

cease advancing fees to its former employees. See id. at 147-48. In light of the policies and 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 16 of 18
13

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

statements, “the only safe course” was for the company to act in the way the government 

apparently preferred, and to cease advancing legal fees to its employees and former employees. 

Id. at 148. 

At some point after the company in Stein had ceased advancing fees and the defendants 

raised their constitutional claims, the government attempted to “cure” the error by purporting to 

express that the company was “free to ‘exercise [its] business judgment’” in deciding whether to 

advance fees. Id. at 145 (alteration in original). The Second Circuit rejected the notion that the 

government had thereby cleared the taint of government influence. Id. at 146. The court’s ruling

in this regard was based, in part, on the conclusion that

it was unrealistic to expect [the company] to exercise uncoerced judgment . . . as 

if it had never experienced the government’s pressure in the first place. The 

government’s intervention, coupled with the menace inherent in the [U.S. 

Attorney’s policy], altered the decisional dynamic in a way that the district court 

could find irreparable.

Id. at 145.

So too here. The Court’s influence on Uber began with a command—a far stronger 

coercion than was ever present in Stein. But even if the Court were now to withdraw that

command, the proverbial bell will be difficult to “un-ring.” Uber knows that it will have to 

litigate its case in this Court, and further knows that the Court wants the company to use its full 

powers to compel Mr. Levandowski to waive his privileges and reveal materials and information. 

Now Uber also knows that it confronts the prospect of an adverse jury instruction if it does not 

use its full powers “on its own initiative.” As things stand, issuing a threat to Mr. Levandowski’s 

employment is “the only safe course” for Uber, see id. at 148—and that is exactly what the 

company has done. Likewise, it would be “unrealistic to expect [Uber] to exercise uncoerced 

judgment . . . as if it had never experienced the [Court]’s pressure in the first place.” See id. at 

145.

For all of those reasons, regardless of whether some hypothetical court might issue the 

instruction contemplated in the Court’s question number 3, in this case the Court can only avoid

constitutional error by expressly assuring Uber that the Court will not punish the company—by 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 17 of 18
14

LEVANDOWSKI’S REPLY RE MOTION FOR INTERVENTION PURSUANT TO RULE 24 AND MODIFICATION OF 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROVISIONAL RELIEF

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

way of an adverse jury instruction or any other means—for failing to terminate Mr. Levandowski 

if he does not produce the records and respond to the inquiries set forth in the Court’s Order. 

V. CONCLUSION

For all the foregoing reasons, the Court should grant Mr. Levandowski’s motions to 

intervene and to modify the Preliminary Injunction Order.

Date: May 30, 2017 Respectfully submitted, 

/s/

Miles Ehrlich

Ismail Ramsey

Amy Craig

Ramsey & Ehrlich

Counsel for Non-Party Anthony 

Levandowski 

Case 3:17-cv-00939-WHA Document 519 Filed 05/30/17 Page 18 of 18