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April 27, 2017

VIA ECF

Magistrate Judge Jacqueline Scott Corley

San Francisco Courthouse, Courtroom F - 15th Floor

450 Golden Gate Avenue, San Francisco, CA 94102

Re: Waymo LLC v. Uber Technologies, Inc., et al., N.D. Cal. Case No. 3:17-cv-00939-WHA

Dear Magistrate Judge Corley:

Attached is Plaintiff Waymo LLC’s (“Waymo”) two-page letter brief regarding Uber’s improper 

deposition notice of Waymo CEO John Krafcik.

Sincerely,

/s/ Charles K. Verhoeven

Charles K. Verhoeven

cc: All counsel of record.

Case 3:17-cv-00939-WHA Document 314 Filed 04/28/17 Page 1 of 3
1

After this Court rejected Uber’s attempt to depose one apex officer, Alphabet CEO Larry Page, 

Uber noticed the deposition of another apex officer, Waymo CEO John Krafcik. But this new 

notice is even more baseless than the first. Like when it noticed Mr. Page, Uber (i) has not bothered 

to try to satisfy the apex doctrine (nor could it) and (ii) cannot establish that the deposition of Mr. 

Krafcik is relevant to issues raised for the first time in Waymo’s reply brief on its preliminary 

injunction motion. But in this instance, Uber is not even attempting to take the deposition before

its sur-reply brief is due. It seeks to take the deposition on May 1, less than 48 hours before the 

May 3 preliminary injunction hearing, and three days after its sur-reply. Thus, there will not even 

be a proper way to use the deposition testimony Uber seeks even if it gets it. All the more, Uber 

has informed Waymo that while it now seeks to compel Mr. Krafcik’s deposition, it also intends 

to appeal this Court’s ruling denying the deposition of Mr. Page. In fact, during the parties’ meet 

and confer, Uber said it sought Mr. Krafcik’s deposition to improve its chances on that appeal, by 

trying to show it took supposedly “less intrusive” measures to get the information it seeks from 

Mr. Page. Uber’s continued cynical attempts to depose multiple apex officers are being made for 

the purpose of harassment, and should be denied.

Apex Doctrine. Mr. Krafcik is the highest-ranking officer of the plaintiff in this action, Waymo 

LLC (“Waymo”), a company with hundreds of employees. Mr. Krafcik is indisputably protected 

under the apex doctrine, which protects officers “at the highest level or ‘apex’ of corporate 

management” from the “abuse or harassment” created by unjustified depositions. Celerity, Inc. v. 

Ultra Clean Holding, Inc., No. C 05-4374MMC(JL), 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 

2007). Uber provides no credible argument to the contrary. An apex deposition is proper only if 

the deponent has unique personal knowledge of the facts at issue and if the party seeking the 

deposition has exhausted other less intrusive discovery methods. See In re Google Litig., No. C 

08-03172 RMW PSG, 2011 WL 4985279, at *2 (N.D. Cal. Oct. 19, 2011). Uber fails this test on 

both fronts.

Unique knowledge. Uber says that it seeks to depose Mr. Krafcik regarding (1) conversations 

between Mr. Krafcik and Anthony Levandowski (2) conversations Mr. Krafcik had with others 

about Mr. Levandowski, and (3) conversations regarding whether to sue Uber or Mr. Levandowski. 

None of these topics comes close to justifying an apex deposition.

Initially, just as with Mr. Page, Uber has presented no evidentiary basis for the proposition that 

Mr. Krafcik conversed with Mr. Levandowski about any issue relevant to this lawsuit. 

Presumably, Uber is once again relying on assertions from Mr. Levandowski that such 

conversations occurred. But again, Uber has claimed a common-interest privilege over its 

communications with Mr. Levandowski in this case, and Mr. Levandowski has asserted the Fifth 

Amendment privilege in response to all questions related to this case. So just as with Mr. Page, 

Uber cannot be permitted to shield Mr. Levandowski from discovery, while at the same relying on 

Mr. Levandowski to justify Uber’s deposition of Waymo’s CEO. And to the extent that Uber is 

seeking the deposition to inquire as to the decision making and timing of Waymo’s decision to sue 

Uber, Uber has not, and cannot, show that Mr. Krafcik has unique knowledge on this issue, or even 

that he has any non-privileged testimony to provide on the subject at all. 

Failure to exhaust. Uber claims exhaustion in that it has attempted to obtain discovery from Mr. 

Levandowski, its own high-ranking employee/officer, but that Mr. Levandowski has refused, 

citing the Fifth Amendment. This is nonsensical. Mr. Levandowski’s assertion of the right against 

self-incrimination does not give Uber the right to subject Waymo’s CEO to a deposition. As this 

Court noted in the April 25 hearing, “when somebody takes the Fifth, it has certain consequences.” 

Case 3:17-cv-00939-WHA Document 314 Filed 04/28/17 Page 2 of 3
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Tr. at 20. And to the extent Uber seeks information regarding conversations that Mr. Krafcik had 

with others, the apex doctrine squarely requires Uber to attempt to depose these others before 

deposing Mr. Krafcik. 

Moreover, in the parties’ meet and confer, Uber complained that it is seeking the deposition of Mr. 

Krafcik to show that Waymo will not allow Uber to depose “anyone” at Waymo regarding 

conversations with Mr. Levandowski. But as the law recognizes, Mr. Page and Mr. Krafcik are 

not just “anyone” at Alphabet and Waymo, respectively, in terms of taking their depositions. But 

even more, Uber’s argument is simply not true. Uber had the opportunity to ask any of the 

witnesses it properly noticed and deposed questions about conversations with Mr. Levandowski. 

In fact, it did just that, questioning Mr. Levandowski’s former colleague Pierre Yvez-Droz and 

others about such conversations, and seeking documents from Mr. Droz about his knowledge of 

Mr. Levandowski’s plans regarding Otto.

Order Governing Expedited Discovery. The Court’s order explains clearly that Uber must limit 

its sur-reply “strictly to addressing material in plaintiff’s reply” and that Uber “may not rely on 

fresh sur-reply declarations on any point that could and should have been raised in the opposition.” 

See Docket No. 61. Uber continues to ignore this restriction; it noticed the deposition of Alphabet 

CEO Mr. Page before Waymo filed its reply – before Uber could possibly have known which reply 

points it could have addressed in its sur-reply. And now Uber seeks Mr. Krafcik’s deposition or 

May 1, after Uber will have already filed its sur-reply. 

More importantly, Uber could have, and in fact did, already address the issues for which it seeks 

Mr. Krafcik’s deposition. Uber purportedly seeks Mr. Krafcik’s deposition to show delay; namely, 

that Waymo knew before it sued Uber that Mr. Levandowski had stolen Waymo files. Uber does 

not need Mr. Krafcik to testify regarding timing. Uber deposed Gary Brown, a Google security 

engineer responsible for investigating Mr. Levandowski. Uber elicited testimony about the 

timeline of the investigation into Mr. Levandowski from Mr. Brown. Uber cited repeatedly to this 

testimony in its opposition to Waymo’s preliminary injunction motion. Uber’s attempt to depose 

Waymo’s CEO regarding the same subject, after Uber has already filed its reply brief, should be 

denied.

Timing. As Waymo has informed Uber, Mr. Krafcik is not available on May 1, having a prescheduled business trip for Waymo on May 1 and May 2. Again, there was no reason for Mr. 

Krafcik to keep his schedule open during this time as any attempt by Uber to depose him as part 

of expedited discovery should have occurred weeks ago, but certainly before Uber’s surreply. 

Kalanick Deposition. Finally, here too, if Uber were permitted to take the deposition of Mr. 

Krafcik—and it should not be—Waymo should be permitted to question Uber’s CEO. Uber cannot 

argue that supposed Krafcik/Levandowski discussions are relevant to Waymo’s PI while denying 

that Kalanick/Levandowski discussions are relevant. Indeed, discussions between Messrs. 

Kalanick and Levandowski are obviously more relevant to Waymo’s PI, given that Waymo has 

alleged that Uber bought Otto and hired Levandowski with the intent of misappropriating Waymo 

trade secrets. And yet here too, while Uber seems to have the full ability to ask Mr. Levandowski 

about any subject related to this case (including Mr. Levandowski’s conversations with Mr. 

Kalanick) and to get substantive answers, Mr. Levandowski pleads the Fifth Amendment as to 

these same subjects when Waymo asks the questions.

Case 3:17-cv-00939-WHA Document 314 Filed 04/28/17 Page 3 of 3