United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WAYMO LLC,

Plaintiff,

 v.

UBER TECHNOLOGIES, INC.;

OTTOMOTTO LLC; and OTTO

TRUCKING LLC,

Defendants. /

No. C 17-00939 WHA

ORDER DENYING MOTION

FOR RELIEF FROM JUDGE

CORLEY’S NONDISPOSITIVE

PRETRIAL ORDER RE

WAIVER OF PRIVILEGE

INTRODUCTION

The magistrate judge overseeing discovery in this action found that defendants waived

their attorney-client privilege over a meeting between their top executives and in-house

litigation counsel. Defendants move for relief from that order pursuant to Civil Local Rule 72. 

The motion is DENIED. 

STATEMENT

The background facts are described in Magistrate Judge Jacqueline Corley’s August 14

order (Dkt. No. 1172 at 1–5) and need not be repeated here. In brief, on March 29 — after

plaintiff Waymo LLC brought this action against defendants Uber Technologies, Inc.,

Ottomotto LLC (collectively, “Uber”), and Otto Trucking LLC — a meeting to discuss

Waymo’s allegations took place between Uber’s in-house litigation counsel Angela Padilla,

then-CEO Travis Kalanick, and then-executive Anthony Levandowski. Uber subsequently

disclosed parts of that meeting helpful to its litigation position and, in an effort to avoid the

resulting subject-matter waiver, argued that the meeting was never privileged in the first place. 
United States District Court

For the Northern District of California

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In an order dated August 14, per the discovery referral in this action, Judge Corley found

that Uber’s attorney-client privilege covered the March 29 meeting. Judge Corley further found

that Uber had deliberately disclosed the contents of that meeting, thereby waiving its privilege

over the subject matter in question (id. at 5–10). Pursuant to Civil Local Rule 72, Uber filed a

motion for relief from Judge Corley’s August 14 order (Dkt. No. 1228). No further briefing is

necessary to decide this motion.

ANALYSIS

1. STANDARD OF REVIEW.

Under FRCP 72, a district judge considering timely objections to a magistrate judge’s

nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.” 

Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing

court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United

States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 

2. UBER’S MOTION FOR RELIEF.

First, Uber complains that Judge Corley erred by analyzing the purpose of the meeting

rather than the specific communications in question (Dkt. No. 1228 at 1–3). Here, that is a

distinction without a difference. Judge Corley’s comprehensive and thorough findings of fact,

including findings concerning the purpose of Attorney Padilla’s presence in the meeting, apply

with equal force to both. Uber’s argument is really about its disagreement with Judge Corley’s

factual findings concerning the purpose of the communications in question, but those findings

are strongly supported by the record and are not clearly erroneous.

Second, Uber contends the mere fact that Attorney Padilla “learned facts that would

allow her to later provide legal advice to Uber . . . does not make Mr. Levandowski’s statements

privileged,” and that Levandowski’s aforementioned statements did not concern matters within

the scope of his corporate duties because they concerned his actions prior to joining Uber (id. at

3). This argument disingenuously describes Levandowski as a mere “witness” and ignores

Judge Corley’s extensive findings about Levandowski’s role in the March 29 meeting as a highlevel corporate executive and at the direction of Uber’s then-CEO (see Dkt. No. 1172 at 6–8).
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Third, Uber asserts that Attorney Padilla’s statement that Levandowski should testify

“(a) was not legal advice to Uber and (b) was not intended to remain confidential” (Dkt. No.

1228 at 3–5). Again, Uber’s arguments amount to mere disagreement with Judge Corley’s wellsupported findings of fact (see Dkt. No. 1172 at 6–8). Such disagreement falls well short of

showing clear error under FRCP 72.

Since Judge Corley did not err in finding that Uber’s attorney-client privilege covered

the March 29 meeting in the first instance, she also did not err in finding that Uber had

deliberately waived its privilege (see id. at 9–10; Dkt. No. 1228 at 5). Uber has indulged in the

slick practice of including its lawyers in meetings and communications and deciding after the

fact if a lawyer was actually included for the purpose of providing legal advice, all in

accordance with what happens to be convenient for Uber’s case. Where, as here, the contents of

a meeting prove advantageous for Uber to reveal, it readily claims that the lawyer did not attend

the meeting in their capacity as a lawyer. But where the contents of a meeting would hurt

Uber’s litigation position, Uber is quick to conceal the facts under claims of privilege. Judge

Corley correctly refused to indulge this pattern of convenience.

In her August 14 order, Judge Corley recommended “that the district court address

whether Uber is precluded from making the waiver and thus offering evidence from Mr.

Kalanick or Ms. Padilla as to Mr. Levandowski’s communications in light of the district court’s

deadline for identifying waivers of the attorney-client privilege” (Dkt. No. 1172 at 11). That

deadline passed on June 1 (see Dkt. No. 438), well before Uber’s selective waiver. It is far too

late for Uber to reap the benefits of that waiver, so it will be precluded from introducing

evidence of the March 29 meeting at trial. Waymo, however, remains entitled to look into the

subject matter over which Uber has waived privilege, so the scope of the waiver must still be

determined. If, at trial, Waymo ultimately introduces evidence on the waived subject matter,

then Uber may in fairness be allowed to respond with its own evidence on the same.

This order expresses no opinion on the related hearsay problem, which both sides are

aware of but have not yet teed up before the Court. When the dust settles on that forthcoming

dispute, the foregoing issue of preclusion against Uber’s tardy waiver may be for naught.
United States District Court

For the Northern District of California

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CONCLUSION

For the foregoing reasons, defendants’ motion for relief from Judge Corley’s August 14

order is DENIED. All stated objections thereto are OVERRULED.

IT IS SO ORDERED.

Dated: August 18, 2017. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE