quinn emanuel trial lawyers | san francisco

50 California Street, 22nd Floor, San Francisco, California 94101 | TEL (415) 875-6600 

quinn emanuel urquhart & sullivan, llp

LOS ANGELES | NEW YORK | SAN FRANCISCO | SILICON VALLEY | CHICAGO | WASHINGTON, DC | HOUSTON | SEATTLE

LONDON | TOKYO | MANNHEIM | MOSCOW | HAMBURG | PARIS | MUNICH | SYDNEY | HONG KONG | BRUSSELS | ZURICH

August 4, 2017

Magistrate Judge Jacqueline Scott Corley

Re: Waymo LLC v. Uber Technologies, Inc., et al., N.D. Cal., Case 3:17-cv-00939-WHA

Waymo’s Motion to Compel Regarding It’s Second Subpoena to Anthony 

Levandowski

Dear Judge Corley:

Please find below Plaintiff Waymo LLC’s (“Waymo”) Motion to Compel with respect to its 

Second Subpoena to Non-Party Anthony Levandowski. Waymo respectfully requests an Order: 

(1) compelling Levandowski to submit an in camera privilege log in accordance with the 

procedure the Court required in response to the prior, Expedited Discovery Subpoena; and (2) 

compelling Levandowski to search for and produce documents responsive to Waymo’s July 17 

Supplemental Requests. 

Sincerely,

/s/ Charles K. Verhoeven

Charles K. Verhoeven

REDACTED VERSION OF DOCUMENT FILED PUBLICLY

Case 3:17-cv-00939-WHA Document 1086 Filed 08/04/17 Page 1 of 5
1

Anthony Levandowski, and Executive Chairman of Defendant Otto 

Trucking, founder and former CEO of Defendant Ottomotto, and former Vice President of 

Engineering and head of ATG at Defendant Uber, is a central figure in this lawsuit for trade 

secret misappropriation. During expedited discovery, on April 9, Waymo served Levandowski

with a third-party subpoena for documents (“Expedited Discovery Subpoena”). (Dkt. 595-5.) 

Judge Alsup ruled that RFP Nos. 1 and 3 of the Expedited Discovery Subpoena were enforceable 

and, after several delays, Mr. Levandowski produced documents in response to these two RFPs. 

During motion practice on the Expedited Discovery Subpoena, Judge Alsup specifically rejected 

Levandowski’s argument that a privilege log was not required to support Levandowski’s 

assertion of the Fifth Amendment. (Dkt. 230, 4/12/17 Hr’g Tr. at 77:22-78:2 (“I never heard of 

that. Typically it is in my court, . . . under your theory, all kinds of wrongdoing could go 

unchecked . . . .”); see also id. at 79:1-5.) Judge Alsup ordered Levandowski to submit his Fifth 

Amendment privilege log in camera, and to also “give the other side enough of the argument so 

that they can respond to it.” (Id. at 79:13-14.) After Levandowski finally submitted an adequate 

Fifth Amendment privilege log, the Court ruled that Levandowski’s Fifth Amendment assertions 

were proper with respect to the specific documents withheld in response to the specific requests

in the Expedited Discovery Subpoena. (Dkt. 802.) The Court did not find that Levandowski has 

a Fifth Amendment privilege to withhold documents for all purposes. 

On June 23, Waymo served a Second Subpoena on Levandowski requesting documents 

in response to 38 new requests (“Second Subpoena”). (Ex. 1.) Levandowski filed his Objections 

on July 7 reserving the possibility that he might withhold documents under the Fifth Amendment 

in response to all 38 requests. (Ex. 2.) Levandowski also indicated that he would produce no 

documents in response to RFPs 33-37 on Fifth Amendment grounds. (Id.) 

Meanwhile, based on newly discovered evidence in discovery, Waymo served 13 

supplemental RFPs on July 17 (“Supplemental Requests”). (Ex. 3.) Levandowski filed 

Objections to those RFPs on July 31, refusing to state whether he would produce any documents 

in response to the Supplemental Requests, and vaguely objecting “to the extent [the RFPs] seek[] 

confidential information.” (See generally Ex. 4.) During the parties’ meet-and-confer 

conference with the Special Master, Levandowski’s counsel admitted that they had not even 

investigated the type of documents that might be responsive to the Supplemental Requests, but 

rather simply objected on the grounds that the RFPs appeared “facially” irrelevant. Mr. 

Levandowski’s counsel also clarified that he was additionally withholding documents responsive 

to the Supplemental Requests on the basis of the Fifth Amendment. 

I. Mr. Levandowski Must Produce An In Camera Log Of Documents Withheld Under 

The Fifth Amendment.

During motion practice on the Expedited Discovery Subpoena, Judge Alsup made 

abundantly clear that a litigant is not entitled to unilaterally withhold documents under a claim of 

privilege. (Dkt. 230, 4/12/17 Hr’g Tr. at 77:22-78:2.) In response to Levandowski’s arguments 

that the production of a privilege log itself would be incriminating, the Court made multiple 

concessions to Levandowski, including allowing him to submit his privilege log in camera, 

allowing him a “do over” when his first in camera log was inadequate, and requiring only a 

minimal showing to Waymo to support the claimed privilege. But, never once did the Court 

Case 3:17-cv-00939-WHA Document 1086 Filed 08/04/17 Page 2 of 5
2

suggest that Levandowski should be entitled to pick and choose, in his sole discretion, which 

documents to produce and which documents to withhold under the Fifth Amendment. 

Despite the Court’s prior holdings with respect to the necessary in camera privilege log 

procedure, Levandowski now argues that he should not be required to make any showing at all. 

Levandowski’s only argument in support of this position is that the Magistrate Judge’s prior 

ruling, that certain documents responsive to the Expedited Discovery Subpoena were protected 

by the Fifth Amendment, necessarily establishes that certain other documents, responsive to 

Waymo’s Second Subpoena, are also protected by the Fifth Amendment. This position is 

untenable. It is axiomatic that assertions of the Fifth Amendment must be made on a “documentby-document” basis. See United States v. Brown, 918 F.2d 82, 84 (9th Cir. 1990). To the extent 

Levandowski is asserting the privilege with respect to documents that are newly responsive to 

Waymo’s Second Subpoena (including the Supplemental Requests), Levandowski must provide 

an in camera privilege log as well as “enough of the argument” to Waymo so that it can 

determine whether a challenge to the privilege is appropriate. Waymo merely asks that the Court 

require the same procedure here as Judge Alsup required in response to the Expedited Discovery 

Subpoena. 

II. Mr. Levandowski Must Produce Responsive, Non-Privileged Documents In 

Response To Waymo’s Supplemental Requests.

After Waymo served the Second Subpoena, it learned new facts that necessitated the 

Supplemental Requests. By way of background, between the date that Ottomotto signed the Put 

Call Agreement with Uber (April 11), and the date that the acquisition closed (August 23), 

Ottomotto acquired another LiDAR company, Tyto LiDAR LLC (“Tyto”).1 

. (Ex. 5, UBER00060588.) As part of the acquisition of Tyto, Ottomotto obtained not 

only all of its employees, including LiDAR hardware engineer James Haslim, but also its LiDAR 

designs. Based on the testimony of Mr. Haslim in this case (Dkt. 387-6 at 17:24-24:24), 

Levandowski played an active role in Tyto while he was a Waymo employee, and Levandowski 

personally guided Mr. Haslim to develop Tyto technology that incorporated Waymo’s trade 

secrets. Thus, even before Uber’s acquisition of Ottomotto, Levandowski—through a number of 

shell entities designed to conceal his involvement—was using Tyto to misappropriate Waymo’s 

intellectual property so that it would be available to Defendants after the acquisition.

According to documents produced by Uber, Tyto’s “owner” was a holding company 

called the (“ ”). (Ex. 6, UBER00047857.) Documents 

produced by , in response to a subpoena, show that “owner” is something 

called the (“ ”), which is an established around the time as the 

formation of Tyto and whose . (Ex. 7 at 

.) 

 

1

 Tyto was originally named “Odin Wave.” Waymo refers to the entity as “Tyto” herein 

regardless of which name it was using at the time. 

Case 3:17-cv-00939-WHA Document 1086 Filed 08/04/17 Page 3 of 5
3

The overwhelming evidence identifies Levandowski as the person behind h. For 

example, current Uber employee Ognen Stojanovski (a former Tyto and Ottomotto employee), 

who is also the “manager” of , is a personal friend of Levandowksi. He testified at 

deposition that , but admits that he was approached to 

take on the job of managing (as well as Tyto and a number of other affiliated shell 

companies, including ) by John Gardner, Levandowski’s 

personal attorney. (Ex. 8 (Stojanovski Depo.) at 30:20-33:15.) Mr. Stojanovski testified that he 

had never met Mr. Gardner before Mr. Gardner approached him about the position, 

but that Mr. Gardner told him that he had been recommended for the role by Levandowski. (Id.) 

Levandowski e

(Ex. 8 (Stojanovski Depo.) at 128:17-132:20.) 

According to Mr. Stojanovski, 

 And, Levandowski, 

, and all have the same accountant—Stephen Nunnemaker. (Ex. 8, 

(Stojanovski Depo.) at 21:16-25; 261:16-19.) 

There is also substantial evidence of Levandowski’s direct involvement in Tyto before it 

was formally absorbed by Ottomotto, including 

(Ex. 9, TYTO-001598; Ex. 

10, TYTO-001599), testimony from Mr. Haslim that he interviewed with Levandowski when 

applying to work at Tyto (Ex. 11, (4/18 Haslim Depo. Tr.) at 22:12-23:12), and 

(Ex. 12, TYTO-001670). In sum, Levandowski—while still a 

Waymo employee and downloading files for use by Defendants—was also funneling Waymo 

trade secrets to, and personally funding, another LiDAR company designed to be acquired by 

Ottomotto (and Uber). 

Waymo’s Supplemental Requests are directed to discovering facts within Levandowski’s 

possession regarding the entities through which he appears to have controlled Tyto: , 

the , and (a and 

designated Trustee): 

 Supplemental Request Nos. 1, 2, 3, 6, and 7 are directed towards discovering the 

identity of person(s) controlling , the identity of person(s) having a beneficial 

interest in the , and facts regarding the formation of ;

 Supplemental Request Nos. 4 and 5 are directed towards discovering facts regarding

financial transfers to or from ;

 Supplemental Request Nos. 8, 10, and 12 are directed toward Mr. Levandowski’s 

communications with , , or ; 

 Supplemental Request Nos. 9, 11, and 13 seek any additional documents regarding 

, the , or within Mr. Levandowski’s 

custody or control. 

Case 3:17-cv-00939-WHA Document 1086 Filed 08/04/17 Page 4 of 5
4

All of these Supplemental Requests seek to discover relevant information that will shed light on 

Defendants’ wrongful acquisition, disclosure, and use of Waymo’s trade secrets through the May 

2016 Tyto merger. Waymo respectfully requests an order overruling Mr. Levandowski’s 

conclusory objection that these Supplemental Requests seek “confidential” information and 

compelling a complete production. See McArdle v. AT&T Mobility LLC, Case No. C 09-1117 

CW (MEJ), 2010 WL 1532334, at *6 (N.D. Cal. April 16, 2010) (“[I]n balancing the competing 

interests present here, the Court finds that the balance weighs in favor of disclosure.”). 

Case 3:17-cv-00939-WHA Document 1086 Filed 08/04/17 Page 5 of 5