UBER’S OPPOSITION TO WAYMO’S REQUEST TO FILE MIL RE: STROZ DUE DILIGENCE

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

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MICHAEL A. JACOBS (CA SBN 111664)

MJacobs@mofo.com 

ARTURO J. GONZÁLEZ (CA SBN 121490) 

AGonzalez@mofo.com 

MORRISON & FOERSTER LLP

425 Market Street 

San Francisco, California 94105-2482 

Tel: 415.268.7000 / Fax: 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, D.C. 20005 

Tel: 202.237.2727 / Fax: 202.237.6131 

WILLIAM C. CARMODY (Pro Hac Vice) 

bcarmody@SusmanGodfrey.com 

SHAWN J. RABIN (Pro Hac Vice) 

srabin@SusmanGodfrey.com 

SUSMAN GODFREY LLP 

1301 Avenue of the Americas, 32nd Floor 

New York, New York 10019 

Tel: 212.336.8330 / Fax: 212.336.8340 

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

DEFENDANTS UBER 

TECHNOLOGIES, INC.’S AND 

OTTOMOTTO LLC’S OPPOSITION TO 

WAYMO’S REQUEST TO FILE A 

MOTION IN LIMINE REGARDING 

THE STROZ FRIEDBERG DUE 

DILIGENCE 

Judge: Hon. William H. Alsup 

Trial Date: December 4, 2017 

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

Case 3:17-cv-00939-WHA Document 2091 Filed 10/25/17 Page 1 of 7
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Waymo fought for and received the release of the Stroz Report and now wants to be the 

only party that can say anything about it at trial. That is absurd. Disappointed that the Stroz Report 

rebuts its misappropriation and conspiracy theories, Waymo now asks the Court to forbid Uber and 

Ottomotto (collectively, “Uber”) from responding to Waymo’s false contentions and baseless 

arguments by introducing what the Court has held is non-privileged evidence about the Stroz due 

diligence at trial. Waymo’s arguments are meritless, and its request for leave to file a motion in 

limine should be denied. 

Waymo’s precis principally complains that Uber has respected the “privilege cutoff set by 

the Court”—which Waymo views as a problem. Dkt. 2040 at 3. But as Waymo repeatedly admits, it 

is the undisputed law of this case (pursuant to Judge Corley’s order, affirmed by this Court), that 

there is no common interest privilege protecting Stroz-related materials prior to the April 11, 2016 

signing of the put-call agreement, whereas the privilege protects such materials (other than the final 

Stroz Report and its exhibits) after the April 11 signing. Consistent with these rulings, Uber 

produced thousands of documents detailing the origin, protocol, execution, and conclusions of the 

Stroz due diligence review. Waymo now wants to rely on this information at trial while precluding 

Uber from doing the same. The Court should not permit such unfairness or prejudice to Uber. 

At trial, Uber intends to rely on non-privileged aspects of the Stroz due diligence—

including the scope of the review and the sequestration of devices—to show that it was designed, 

among other things, to prevent information that might be confidential to Google from reaching 

Uber. Particularly now that Waymo’s case has deteriorated, and Waymo has pivoted to an 

“imputation” theory of liability against Uber based on the mere receipt of Google information by 

Uber’s outside counsel and Stroz, Uber must be permitted to respond to that argument by using 

non-privileged aspects of the Stroz process to defend itself. Waymo’s motion falsely suggests Uber 

seeks to use the due diligence review selectively, invoking the proverbial sword and shield, and 

further argues that uncontested evidence regarding Stroz’s sequestration of devices would somehow 

mislead or confuse the jury. The sword Waymo wants to take from Uber consists solely of 

information held to be non-privileged, and the shield it complains of is nothing but the privilege 

lines drawn by Judge Corley and upheld by this Court. Waymo’s request should be denied. 

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I. WAYMO SHOULD NOT BE PERMITTED TO HIDE FROM THE JURY 

THAT THE STROZ PROCESS HELPED PREVENT MISAPPROPRIATION 

Waymo rightly anticipates that Uber will respond to its baseless accusations by relying on 

non-privileged evidence that the Stroz due diligence process was designed to help ensure that Uber 

would not unwittingly misappropriate Waymo trade secrets when it acquired Ottomotto. Many 

deponents have testified to that point, because it is non-privileged. See, e.g., Pritt Decl., Ex. 6 (Suhr 

Tr.) at 16:8–17:4; Ex. 4, Padilla Tr. at 15:17–16:3; Ex. 3, Poetzscher Tr. at 491:9–492:8; Ex. 2, 

Friedberg Tr. at 95:21–96:16. It is also reflected in non-privileged documents describing the scope 

of the diligence. See Dkt. 1603-5, Stroz Rpt. at 3. To Waymo’s consternation, the Stroz Report only 

confirms that Uber did not want to, and did not, acquire Waymo trade secrets. See, e.g., id. at 17 

(“Stroz Friedberg discovered no evidence indicating that [Levandowski] transferred any of that data 

to Ottomotto or other third parties”); Pritt Decl., Ex. 7, Fulginiti Tr. at 287:20–24 (Q: “And Stroz 

Friedberg discovered no evidence that any of the other diligenced employees transferred any data to 

Ottomotto or other third parties, correct?” A: “That’s correct.”). Waymo’s inability—despite 

months of searching and reviewing millions of documents—to find any of the 14,000 allegedly 

stolen files in Uber’s possession, is further proof that the process worked. Waymo may try to 

convince the jury that there was nonetheless misappropriation despite this lack of evidence, but it 

cannot stack the deck by excluding Uber’s evidence of efforts to prevent any misappropriation. 

Given that absence of evidence, Waymo understandably now wants to prevent Uber from 

explaining the Stroz due diligence by asserting, incorrectly, that to do so raises a “sword and shield” 

issue. Dkt. 2040 at 1. Waymo’s primary argument is that Stroz continued to perform forensic 

analysis after the put-call agreement was signed on April 11, at which point Judge Corley held the 

common interest doctrine attached. Waymo’s focus on the post-April 11 Stroz forensic analysis is 

misplaced, as it ignores the massive amount of non-privileged information that Waymo now has at 

its disposal, which will allow it to analyze the Stroz Report in all respects. Waymo has all of the 

underlying materials Stroz relied on (or could have relied on) for its conclusions, and all of those 

conclusions. Thus, if Waymo has legitimate criticisms of Stroz’s analysis, it has all the information 

it needs to present them to the jury. Waymo does not need access to Stroz’s post-April 11 work 

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product to assess Stroz’s conclusions (as Waymo’s latest submissions with its motion to amend 

make perfectly clear). 

 Prior to April 11, the entire information collection process by Stroz was complete, and by 

ruling of this Court is not covered by the common interest privilege. Before the privilege attached, 

Stroz had: formalized a review protocol, received completed questionnaires from all of the 

diligenced employees, completed all of its interviews, collected all relevant devices and accounts, 

produced an interview memorandum that detailed Levandowski’s participation in the review 

process, and given several interim reports that further detailed key issues that arose during the 

review. See Dkt. 1603-5 at 3-6. Indeed, the Indemnification Agreement signed on April 11 confirms 

that the “Diligenced Employees’ involvement in the Outside Expert [Stroz Friedberg] examination, 

including interviews, device and document production, and other personal involvement of any 

nature is complete.” Pritt Decl., Ex. 1 at 1. In other words, Waymo has all of the inputs to Stroz’s 

analysis. It also has all of the outputs. That is all Waymo needs to formulate its own analysis. 

 Stroz’s remaining work after April 11, which consisted only of analyzing the materials that 

it had already collected, was to be done “solely for the purpose of completing a final report.” Id.

Waymo has that final report, along with all of its exhibits, including exhibits that provide detailed 

descriptions of the forensic and document review processes that took place between April 11 and 

the issuance of the final report in August. See, e.g., Dkt. 1603-6, Stroz Rpt. Ex. 17 (forensic finding 

report describing Stroz’s “methodology” and “summary and timeline of key findings”), Dkt. 1603-

7, Ex. 22 (“Outline of E-Discovery Relativity Document Review”). Bizarrely, Waymo seeks to use 

the “detailed preliminary forensic reports” to which it now has unfettered access, as evidence of a 

sword and shield problem centered on “Stroz’s substantive forensic analysis work.” (Dkt. 2040 at 

3.) Given that all of Stroz’s work after April 11 was done solely for the purpose of completing the 

final report and exhibits that Waymo now has, Waymo’s professed inability to “substantively 

challenge Defendants’ characterizations of the investigation” (Dkt. 2040 at 4) is entirely baseless. 

Waymo cannot identify any selective or improper invocation of privilege that might support 

a request for preclusion, so it instead fixates on the fact that several witnesses—all but one of whom 

were acting at all times in their capacity as attorneys—were properly instructed not to answer 

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questions about privileged communications. Dkt. 2040 at 2. What Waymo fails to tell the Court is 

that it also deposed four Stroz witnesses who were not serving as attorneys, and who gave detailed 

testimony about Stroz’s process and diligence review, the thousands of hours Stroz staff (both 

attorneys and forensics experts) spent examining the materials that Stroz collected, and the 

hundreds of pages of written findings that Stroz included as part of its final report—which Waymo 

now has. Waymo also fails to mention the extensive testimony that Uber non-lawyers, such as Cam 

Poetzscher and Nina Qi, provided about all of the non-privileged aspects of the Stroz due diligence. 

Uber must be allowed to explain, by using evidence the Court held to be non-privileged, 

why Stroz was retained and what Stroz did (and did not do) as part of the diligence process. The 

answers to those questions can be derived entirely from non-privileged sources, and both parties 

must be allowed to offer their best evidence to the jury. While testimony regarding Uber’s 

attorneys’ post-April 11 mental processes and advice will necessarily be limited, that is the result of 

Judge Corley’s holding (affirmed by this Court) regarding the proper scope of the common interest 

privilege, not of gamesmanship by Uber. Waymo’s realization that the Stroz materials do not shore 

up its deteriorating case is no excuse for precluding Uber from putting on its own stronger case. 

II. WAYMO SHOULD NOT BE PERMITTED TO HIDE FROM THE JURY 

EVIDENCE ABOUT THE DEVICES IN STROZ’S “EVIDENCE VAULT” 

Uber is entitled to tell the jury about Stroz’s sequestration of Levandowski’s devices in 

March 2016. Waymo’s argument goes to the weight of the evidence and fails to risk any jury 

confusion. 

Waymo has repeatedly asked, and deponents have repeatedly answered without any 

assertion of privilege, questions about Stroz’s “evidence vault.” See, e.g., Pritt Decl., Ex. 2,

Friedberg Tr. at 270:10–272:3; Ex. 7, Fulginiti Tr. at 76:21–78:22; Ex. 5, Chew Tr. at 224:13–

225:18; Ex. 8, Maugeri Tr. at 181:16–182:16. Waymo has likewise received documents that spell 

out precisely which devices were “preserved and returned to Levandowski,” and which are still to 

this day “being stored in Stroz Friedberg’s evidence vault.” (Dkt. 1603-6, Stroz Rpt. Ex. 17.) While 

the sequestration aspect of the Stroz due diligence may not fit neatly into Waymo’s conspiracy 

theories, it is an important fact that the jury should be permitted to hear and weigh for itself. 

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Waymo bases its precis on inapposite references to Levandowski’s Dropbox Account, 

iPhone, and Slack communications—none of which Uber has ever claimed were sequestered at 

Stroz. (Dkt. 2040 at 5.) Unable to identify a single misleading statement Uber made about these 

items, Waymo instead fabricates one by blatantly misquoting a hearing transcript. Compare Dkt. 

2040 at 4 (Waymo, quoting Dkt. 1261 at 22:6–8: “Stroz took all of Mr. Levandowski’s devices, 

even devices that were very old, and put it all into a vault.”), with Dkt. 1261 at 22:6–9 (full relevant 

excerpt, providing: “Stroz took all of Mr. Levandowski’s devices, even devices that were very old, 

and put it all into a vault. And the only thing he got back was his phone.” (emphasis added)). 

Waymo does not even allege that any of the files in Levandowski’s Dropbox (or on his 

iPhone or the Slack site) disclosed Waymo’s Alleged Trade Secrets. In his supplemental report, Dr. 

Hesselink mentions seven Google files whose filepath indicate they were in Levandowski’s 

Dropbox. Dr. Hesselink claims that six of those files are related to TS 90, and one is related to TS 

111. (Dkt. 2057, Ex. 1 at 6, 21-22 & Ex. B.) But Waymo and Dr. Hesselink fail to mention that 

none of these files actually disclose the claimed trade secrets, 

. Rather, the files relate to 

the 

They also fail to mention that these files show a last access 

date of July to September 2015, several months before Levandowski left Google. (Id., Ex. B.) If 

anything, it is Dr. Hesselink’s baseless innuendos, not evidence of which devices and accounts were 

and were not quarantined, that will cause confusion and prejudice. In no event has Waymo 

established that information about the Stroz “vault” should be excluded under FRE 403 argument. 

* * * 

Waymo cannot paper over the holes in its case through contrived claims for exclusion of 

Uber’s evidence, which would deprive Uber of the ability to defend itself. Uber is entitled to 

explain to the jury, through what the Court has held to be non-privileged evidence, why Uber 

retained Stroz, the steps that Stroz took during its due diligence, and the ways in which that process 

helped ensure that no confidential Google information came to Uber, including securing devices in 

Stroz’s evidence vault. Waymo’s request to file a new, baseless motion in limine should be denied.

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Dated: October 25, 2017 MORRISON & FOERSTER LLP 

BOIES SCHILLER FLEXNER LLP 

SUSMAN GODFREY LLP 

By: /s/ Karen L. Dunn 

KAREN L. DUNN 

Case 3:17-cv-00939-WHA Document 2091 Filed 10/25/17 Page 7 of 7