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NON-PARTY ANTHONY LEVANDOWSKI’S REPLY IN SUPPORT OF REQUEST FOR LEAVE TO MAKE IN 

CAMERA SUBMISSION ISO OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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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.

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

NON-PARTY ANTHONY 

LEVANDOWSKI’S REPLY IN 

SUPPORT OF REQUEST FOR LEAVE 

TO MAKE IN CAMERA SUBMISSION

IN SUPPORT OF OPPOSITION TO 

WAYMO’S MOTION TO COMPEL 

Date: June 8, 2017

Time: 10:00 a.m.

Courtroom: F, 15th Floor

Judge: The Hon. Jacqueline Scott Corley

Trial Date: October 2, 2017

Waymo has opposed Mr. Levandowski’s request for an order permitting him to file an in 

camera declaration to address the matters before the Court as a result of Waymo’s motion to 

compel production of a due diligence report prepared by a vendor engaged pursuant to a joint 

defense agreement. As set forth below and in Mr. Levandowski’s opening brief, Waymo has 

provided no legal or factual basis to deny Mr. Levandowski’s request to submit a declaration for 

in camera review in support of the opposition briefs to Waymo’s motion.

Case 3:17-cv-00939-WHA Document 473 Filed 05/19/17 Page 1 of 6
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NON-PARTY ANTHONY LEVANDOWSKI’S REPLY IN SUPPORT OF REQUEST FOR LEAVE TO MAKE IN 

CAMERA SUBMISSION ISO OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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A. In camera review of a declaration from Mr. Levandowski is a proper method to 

determine whether the report is protected

1. Authority supports in camera determination of the application of the 

attorney-client and Fifth Amendment privilege

Waymo is incorrect in claiming that there is no authority for the submission of an in 

camera declaration here. Federal courts have long approved in camera proceedings to allow

individuals to support a claim of privilege without disclosing the privileged material itself: 

“Indeed, this Court has approved the practice of requiring parties who seek to avoid disclosure of 

documents to make the documents available for in camera inspection, and the practice is well 

established in the federal courts.” United States v. Zolin, 491 U.S. 554, 568-69 (1989) (citations 

omitted). In fact, the court in In re Katz, 623 F.2d 122 (2nd Cir. 1980), confronted a case very 

similar to the one at bench. The court of appeals considered a district court’s denial of 

intervention in a grand jury proceeding in which the applicant’s attorney had received a 

subpoena. Id. at 124. The applicant sought to protect against the revelation of materials he had 

provided to the attorney, arguing that, under Fisher v. United States, 425 U.S. 391 (1975), the 

subpoena to the attorney implicated the applicant’s Fifth Amendment right against selfincrimination. Id. at 125-26. The Second Circuit reversed the district court’s denial of 

intervention, ruling that the district court was required to permit the applicant to intervene. Id. 

Further, the Second Circuit directed the district court to conduct an in camera inquiry into 

whether the materials held by the attorney: 1) implicated the intervenor’s Fifth Amendment 

rights, and 2) were protected by the attorney-client privilege. Id. at 126. The court ordered that 

“[t]he hearing and examination of the packet of materials should be in camera and the 

proceeding itself should be privileged so that whatever testimony is elicited will not constitute a 

waiver of any right the witness might have.” Id. at 127.

Further, contrary to Waymo’s suggestion that in camera proceedings are “secret” and 

therefore should be shunned by this Court, as the Katz decision makes clear, courts often hold 

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NON-PARTY ANTHONY LEVANDOWSKI’S REPLY IN SUPPORT OF REQUEST FOR LEAVE TO MAKE IN 

CAMERA SUBMISSION ISO OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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complete in camera hearings – including the taking of testimony – to determine the application 

of an individual’s rights under the Fifth Amendment and the attorney-client privilege doctrine. 

Id. Like the Second Circuit, the Ninth Circuit has specifically required the district court to 

undertake an in camera hearing on an individual’s assertion of the Fifth Amendment privilege 

because that “inquiry is best made in an in camera proceeding, where the defendant is given ‘the 

opportunity to substantiate his claims of the privilege and the district court is able to consider the 

questions asked and the documents requested by the summons.’" United States v. Drollinger, 80 

F.3d 389, 393 (9th Cir. 1996) (quoting United States v. Argomaniz, 925 F.2d 1349, 1355 (11th 

Cir. 1991) and remanding for an in camera hearing into the assertion of the Fifth Amendment 

privilege in response to an IRS summons).

Under this authority, this Court should accept for review an in camera declaration from 

Mr. Levandowski to support his claim that disclosure of the due diligence materials implicates 

his Fifth Amendment and attorney-client privileges. 

2. Mr. Levandowski has demonstrated that his attorney-client and Fifth 

Amendment privileges are implicated

Waymo is incorrect when it claims that Mr. Levandowski has not demonstrated that his 

attorney-client and Fifth Amendment privileges are implicated. As stated in his opening brief,

there are two sets of privileges at issue. First, the allegations in Waymo’s complaint implicate 

Mr. Levandowski’s Fifth Amendment privilege against self-incrimination, as the complaint 

alleges that Mr. Levandowski was involved in “steal[ing]” and “misappropriat[ing]” intellectual 

property. See, e.g., Docket No. 23 ¶¶ 10, 11 & p. 11 § IV.D. Moreover, on May 11, 2017, Judge 

Alsup formally referred the case to the United States Attorney’s Office “for investigation of 

possible theft of trade secrets.” Docket No. 428. 

Second, as set forth in Mr. Levandowski’s Opposition to Motion to Compel, Docket 379

at3:13-10:20, and Uber’s Opposition to Waymo’s Motion to Compel, Docket 369 at 6:23-17:5, 

the due diligence materials at issue in the motion to compel are protected by the attorney-client,

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NON-PARTY ANTHONY LEVANDOWSKI’S REPLY IN SUPPORT OF REQUEST FOR LEAVE TO MAKE IN 

CAMERA SUBMISSION ISO OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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common interest, and work product privileges. In asserting his rights as an intervenor, and in 

support of Uber’s position, Mr. Levandowski seeks to submit a declaration that would establish 

the basis for the application of these privileges to the due diligence materials. Indeed, Waymo 

strongly criticizes the fact that no declaration from Mr. Levandowski has been submitted in 

opposition to its motion to compel. Docket 445 at 8:22-2. 

Absent the protection provided by in camera review — which would preserve all 

privileges — Mr. Levandowski faces a potential choice between “the rock and the whirlpool.” 

See Garrity v. N.J., 385 U.S. 493, 496 (1967). Establishing the factual predicates for the 

assertion of the attorney-client, common interest and work product privileges may require Mr. 

Levandowski to speak about events, communications, and thought processes that could 

potentially assist in a criminal investigation — and would thereby constitute a waiver of his Fifth 

Amendment privilege if forced to do so in public filings. 

Waymo claims that no such problematic choice exists because the present lawsuit is 

civil. But the privilege against self-incrimination applies in a civil case; a person can invoke the 

Fifth Amendment’s protections in any proceeding — be it “civil, criminal, administrative, 

judicial, investigative or adjudicatory.” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 

1263 (9th Cir. 2000). 

B. Mr. Levandowski does not assert his Fifth Amendment privilege as a “sword”

Waymo’s accusation that Mr. Levandowski attempts to use his Fifth Amendment

privilege both as a “shield” and a “sword” misconstrues the metaphor and the law. Courts 

sometime express the principle that a litigant may not “us[e] the privilege as both a shield and a 

sword.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (en banc). “In practical terms, 

this means that parties in litigation may not abuse the privilege by asserting claims the opposing 

party cannot adequately dispute unless it has access to the privileged materials.” Id. The Ninth 

Circuit applied this principle in the case cited by Waymo, United States v. $133,420.00 in U.S. 

Currency, 672 F.3d 629, 640-41 (9th Cir. 2012). It held that a party who had asserted an 

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NON-PARTY ANTHONY LEVANDOWSKI’S REPLY IN SUPPORT OF REQUEST FOR LEAVE TO MAKE IN 

CAMERA SUBMISSION ISO OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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ownership interest in the subject cash but simultaneously refused to answer questions about this 

same ownership interest on Fifth Amendment grounds could not rely on the asserted ownership 

interest in resisting a motion for summary judgment. Id. The Ninth Circuit reasoned that 

testimony may be struck: "if invocation of the privilege blocks inquiry into matters which are 

'direct' and are not merely 'collateral' to the proceeding.” Id. at 641 (citations omitted).

In this litigation, Mr. Levandowski has sought only to prevent the revelation of privileged 

information – he has not sought to use privileged information to establish an affirmative claim in 

the proceeding while simultaneously refusing to testify about that information. In short, Mr. 

Levandowski seeks only to use the privilege as a shield. See Home Indem. Co. v. Lane Powell 

Moss & Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (stating that a litigant waives a privilege by 

affirmative use only if, among other things, “the party asserts the privilege as a result of some 

affirmative act, such as filing suit” and “through this affirmative act, the asserting party puts the 

privileged information at issue”). Moreover, the issue about which Mr. Levandowski seeks to 

provide a declaration – whether the attorney-client privilege protects the due diligence materials 

– is a collateral matter and therefore not subject to this general principle. 

C. Waymo has not demonstrated that the crime-fraud exception applies

Waymo references the crime-fraud exception, but does not address its burden of proof to 

establish its application. See In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 

2007), abrogated on other grounds by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009). 

To meet its burden, Waymo needed to demonstrate that (1) “the client was engaged in or 

planning a criminal or fraudulent scheme when it sought the advice of counsel to further the 

scheme,” and (2) there was “reasonable cause to believe that the attorney’s services were utilized 

. . . in furtherance of the ongoing unlawful scheme.” Id. (internal citations and punctuation 

omitted). And Waymo must put forward “evidence that if believed by the jury would establish 

the elements of an ongoing violation.” United States v. Laurins, 857 F.2d 529, 541 (9th Cir. 

1988). Waymo’s unspecific allegations fail to meet its burden of proof.

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NON-PARTY ANTHONY LEVANDOWSKI’S REPLY IN SUPPORT OF REQUEST FOR LEAVE TO MAKE IN 

CAMERA SUBMISSION ISO OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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For the foregoing reasons, and those set forth in the opening brief, the Court should 

permit Mr. Levandowski to submit an in camera declaration that will (a) establish the application 

of the asserted privileges to the materials sought by Waymo, while still (b) maintaining in 

confidence information that may be protected by Mr. Levandowski’s Fifth Amendment privilege 

against self-incrimination or the common interest, attorney-client or work product privileges.

Date: May 19, 2017 Respectfully submitted, 

/s/

Miles Ehrlich

Ismail Ramsey

Amy Craig

Ramsey & Ehrlich

Counsel for Non-Party Anthony 

Levandowski 

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