sf-3786270 

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June 19, 2017 

VIA ECF 

Magistrate Judge Jacqueline Scott Corley 

USDC, Northern District of California 

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: 

Defendants Uber Technologies Inc. and Ottomotto LLC (collectively, “Uber”) submit 

this letter in opposition to Waymo LLC’s (“Waymo”) letter brief (Dkt. 637) regarding certain 

privilege issues that remain outstanding (“Letter Br.”) following the Court’s order (“Order”) 

(Dkt. 566) on Waymo’s Motion to Compel Production of Withheld Documents (Dkt. 321). 

Respectfully submitted, 

Arturo J. González 

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Waymo asserts that Defendants served hundreds of pages of privilege logs in response to 

the Court’s Order that Defendants return the “14,000+ files that Levandowski stole from 

Waymo.” Letter Br. at 1. This is misleading. The Court’s March 16 Order required Defendants 

to “produce for inspection all files and documents downloaded by Anthony Levandowski, 

Sameer Kshirsagar, or Radu Raduta before leaving plaintiff’s payroll and thereafter taken by 

them[, and] also produce for copying the . . . media used for the downloads, as well as all 

subsequent [documents] that have forwarded, used, or referred to any part of said downloaded 

material.” Dkt. 61 ¶ 4. Uber searched extensively for the 14,000 files, and found no evidence 

that they came into Uber’s possession. In an abundance of caution, Uber also looked for 

documents connected to the attorney-directed due diligence process to see if any such documents 

“referred” to any document that could possibly fall within the broad wording of the Court’s 

March 16 Order. Where a privileged document “referred” to Google information (whether actual 

or the potential thereof) or material that one of the three employees may have had in their 

possession, it was identified on the log. That is not a log of stolen files, as Waymo suggests. 

Uber has identified the subset of documents on its privilege logs that would be produced 

if Your Honor’s Order is affirmed. Not satisfied with this, Waymo now seeks a blanket order 

requiring production of all privileged communications on the logs on grounds that have been 

briefed extensively.1

 That is not warranted. Even if Your Honor’s Order is affirmed, Uber and 

the Otto parties had a common interest privilege at least as of April 11, 2016. At least 1,117 

communications on the logs are solely between a party and its counsel, and hence are subject to 

attorney-client and work product privileges that do not require any common interest privilege. 

Waymo has not shown a “substantial need” for piercing the work product privilege, and cannot 

show that the crime-fraud exception applies to pierce the attorney-client privilege. And contrary 

to Waymo’s complaints, the information on the privilege logs justifies the privileges invoked. 

I. A Common Legal Interest Among Uber, Ottomotto, Otto Trucking, Levandowski, 

and Ron Existed at Least as of April 11, 2016.

Between Uber and Ottomotto: Waymo contends that Uber and Ottomotto did not share a 

common legal interest until August 23, 2016, the date that Uber’s acquisition of Ottomotto 

closed. Waymo is incorrect as both a legal and factual matter. Uber and Ottomotto shared a 

common legal interest at least as of April 11, 2016, the date the Put Call Agreement was signed.2

Waymo cites no authority for its argument, because it runs counter to every authority that 

Uber has cited in extensive briefing on the common legal interest doctrine. The common interest 

doctrine protects the sharing of privileged information between parties to a potential acquisition, 

merger, or purchase well before the potential transaction is finalized. An entire body of law 

exists concerning the existence of common interest privileges before the closing of a transaction. 

In Rembrandt, as this Court explained in the Order, “[t]he district court held that once 

Rembrandt had acquired an exclusive option to purchase the patent, ‘it was already engage[d] 

 

1

 Motion to Compel Production of Due Diligence Report (Dkts. 321, 369, 445, 474); Objections 

to the Order (Dkts. 575, 585, 608); Motion to Quash Stroz Subpoena (Dkts. 581, 632); Motion to 

Compel re Stroz Subpoena (Dkts. 570, 610, 614, 616, 617); Motion to Compel Production of 

Unredacted Stroz-Levandowski Agreement (Dkts. 546, 552). 

2

 For the avoidance of doubt, Uber does not abandon its prior argument that the common legal 

interest attached shortly after the parties signed the February 22, 2016 Term Sheet.

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With Levandowski: For the first time, Waymo argues that no party could ever have a 

common legal interest with Levandowski because his only interest is in protecting himself from 

criminal liability, but that argument again ignores well-established law. The common interest 

doctrine “does not require a complete unity of interests among the participants, and it may apply 

where the parties’ interests are adverse in substantial respects.” United States v. Bergonzi, 216 

F.R.D. 487, 495 (N.D. Cal. 2003); see also 5/25/17 Hr’g Tr. at 105:4-10 (Court: “The point 

about being a divergence of interest, the classic joint defense, of course, is in a criminal case 

where there are multiple defendants and they all have divergent interests. It’s all in their 

interests to point the finger at the other, but they have joint defense agreements that are 

recognized, right, and well established.”).6

 Levandowski shared a common legal interest with 

Uber, Ottomotto, and Ron in defending against potential litigation by Google. 

With Otto Trucking: For the first time, Waymo sets up a straw man in arguing that Otto 

Trucking lacks a common legal interest with anyone. Prior to the closing of the acquisition, Otto 

Trucking and Ottomotto were represented by the same attorneys at OMM. Bentley Decl. (Dkt. 

376) ¶ 3. Otto Trucking signed the Joint Defense Agreement. Dkt. 370-2. And Uber obligated 

itself to indemnify Otto Trucking on April 11, 2016, for the very claims brought here, 

demonstrating Uber’s common legal interest with it. Indemn. Agr. § 2.1. 

II. Waymo Has Not Met Its Burden of Demonstrating a Substantial Need for Protected 

Work Product. 

Regardless of whether the common interest doctrine applies (it does), Uber has not 

waived its work product protections by disclosing any logged documents because such disclosure 

was not to a litigation adversary or potential litigation adversary. See Uber’s Objections (Dkt. 

575) at 3-4 and cases cited therein. Furthermore, and in the alternative, Levandowski’s Fifth 

Amendment invocation does not create a substantial need for any “witness statements that touch 

on the circumstances surrounding [Levandowski’s alleged] theft of Waymo’s files.” Letter Br. at 

3. If that were the case, this Court would not have limited its ruling to Levandowki’s interview 

memorandum and documents turned over to Stroz. Order at 22. Waymo can depose fact 

witnesses and elicit their non-privileged knowledge of such conduct; Levandowki’s Fifth 

Amendment invocation does not make those witnesses unavailable. In re Vitamins Antitrust 

Litig., 211 F.R.D. 1, 3 (D.D.C. 2002) (substantial need demonstrated only for witness statements 

from those individuals invoking Fifth Amendment); Sec. & Exch. Comm’n v. Mazzo, 2013 WL 

12172628, at *15 (C.D. Cal. Oct. 24, 2013).7

 

6

 Waymo also misreads the Indemnification Agreement; any conflict of interest claim arising 

between Levandowski and Uber does not void Uber’s indemnification obligation. Indemn. Agr. 

§ 2.2(b). Uber’s indemnification obligation ceases under different circumstances, e.g if 

Levandowski failed to tell Uber the truth in the Stroz diligence process. See id. § 2.1(b)(ii). 

Waymo has also not sued Levandowski for misappropriation of trade secrets, so there is no 

“Conflict of Interest Claim” at issue. 

7

 Waymo’s cited cases are inapposite. In Rexford v. Olczak, 176 F.R.D. 90, 93 (W.D.N.Y. 

1997), the court found a defendant demonstrated a substantial need for the plaintiff’s own diary. 

Here, no “contemporaneous” accounts are available. Likewise, there are no nearcontemporaneous transcripts of witness interviews, like in Smith v. Diamond Offshore Drilling, 

Inc., 168 F.R.D. 582, 584 (S.D. Tex. 1996). 

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III. The Crime-Fraud Exception Does Not Apply. 

The Court has reviewed the Stroz Report and Exhibits in camera, which is itself evidence 

of whether the crime-fraud exception—which is exceedingly narrow particularly in civil cases—

applies. It does not, because the Report, and thus communications regarding the diligence 

process on Uber’s privilege logs, were not “made in furtherance of [any] intended, or present, 

continuing illegality.” In re Napster Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007). 

Moreover, Waymo has not met its exacting burden of submitting evidence satisfying 

every element of the predicate crime of receipt of stolen property.8

 Waymo submits no 

cognizable evidence showing that Uber ever possessed any alleged downloaded files. Rather, 

Uber took steps to ensure Levandowski brought no such material to Uber; he warranted to Uber 

that he had “returned or destroyed all property and confidential information belonging to any 

prior employer” when accepting employment at Uber. Ex. A to DeStefano Decl. He warranted 

the same to Ottomotto. Ex. A to Morgan Decl. Uber also conducted an extensive forensic 

examination for any downloaded files. See Dkts. 183, 303, 305, 651. Uber has located no 

evidence that any alleged downloaded files made their way to Uber. Further, Uber never had 

access to any material Levandowski provided Stroz; Levandowski at all times controlled access 

to the materials he provided to Stroz. Mar. 21, 2016 Gardner-Stroz Agr. (Ex. 3, Stroz Rpt. & 

Dkt. 545-7); Dkt. 634-7. Nor does Uber’s counsel’s email to Waymo’s counsel say that Stroz or 

MoFo possessed any downloaded material; it expressly says otherwise. Dkt. 634-7; see also 

People v. Davis, 2005 WL 2767132, at *3 (Cal. Ct. App. Oct. 26, 2005) (requiring receipt of 

allegedly stolen property). Uber also did not “constructively possess” any downloaded materials 

because Uber could not control Stroz or MoFo with respect to those materials given 

Levandowski’s directive not to disclose them to Uber absent his consent. See Mar. 21, 2016 

Gardner-Stroz Agr. (Dkt. 545-7); People v. Scott, 45 Cal. 4th 743, 749 (2009) (“Constructive 

possession . . . does require that a person knowingly exercise control over or the right to control a 

thing.”).

Waymo also grossly mischaracterizes the content of Uber’s privilege logs. Letter Br. at 5 

n.7. (Dkt. 637.) The logs do not contain “thousands of communications regarding what to do 

with the stolen files.” Id. at 5. These documents were logged in response to the Court’s March 

16 Order, as explained above. The Court should not order disclosure of the logged documents 

here, especially where the authority Waymo cites arises under California, not federal, law, and 

applies a different standard. In re Uehling, 2013 WL 3283212, at *7-8 (E.D. Cal. June 27, 2013) 

(requiring only a “reasonable relationship” between the ongoing crime and attorney-client 

communication, instead of using attorney-client communications “in furtherance of” the ongoing 

 

8

 Uber twice pointed out this deficiency in Waymo’s briefing on the Motion to Compel the Due 

Diligence Report, noting that Waymo failed to even attempt to identify evidence that meets the 

elements of an ongoing crime. Dkt. 369 at 23; Dkt. 474 at 3. Waymo’s attempt to do so now is 

too little, too late, especially after the Court stated, in response to Waymo’s argument about the 

crime-fraud exception, “[n]obody is going to get to submit more authority. Nobody.” 5/25/17 

Hr’g Tr. at 110:6-7; see also Order (Dkt. 460) (permitting Waymo to respond to Uber’s 

arguments in sur-reply at the May 25, 2017 hearing). Acknowledging the weakness of its crimefraud argument, Waymo has also abandoned its argument that a predicate crime for the 

exception’s applicability is obstruction of justice. 

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crime); see also In re Napster, 479 F.3d at 1090 (requiring each and every attorney-client 

communication for which production is sought to further the alleged ongoing crime).9

Finally, no special discovery is authorized to determine applicability of the crime-fraud 

exception. See id. (outlining procedures for determination of crime-fraud exception; no process 

for discovery included). Waymo cites no authority for its overreaching request to depose MoFo 

and OMM, particularly outside the regular discovery process.10 Moreover, “[t]he practice of 

forcing trial counsel to testify...has long been discouraged.” FTC v. DirectTV, Inc., No. 15-cv01129-HSG (MEJ), 2016 U.S. Dist. LEXIS 103602, at *9 (N.D. Cal. Aug. 5, 2016) (quoting 

Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) (setting for the requirements to 

depose trial counsel). Waymo cannot satisfy this high bar: (1) the information sought from 

OMM and MoFo falls squarely within the attorney-client and work product privileges, and (2) 

information as to what Uber received, which is the only relevant inquiry, can be obtained from 

non-privileged sources. 

IV. Uber’s Privilege Logs Set Forth Sufficient Information to Support the Privileges. 

Uber’s privilege logs make a prima facie showing of privilege,11 such that it is Waymo’s 

burden to “show a factual basis sufficient to support a reasonable, good faith belief that in 

camera inspection may reveal evidence that information in the materials is not privileged.” 

Rembrandt, 2016 WL 427363, at *3 (quoting In re Grand Jury Investigation, 974 F.2d 1068, 

1075 (9th Cir. 1992)). It has not done so. As summarized below and explained in further detail 

in the Declaration of Sylvia Rivera (“Rivera Decl.”), each of Waymo’s complaints lacks merit. 

Uber’s privilege logs contain accurate subject matter descriptions. The privilege logs 

pertain to a single issue, and therefore accurately use the same document descriptions. Despite 

seeking production of all logged documents, Waymo cites only one alleged “inaccuracy,” 

pertaining to certain employee attestations, but its critique is unfounded.12 Rivera Decl. ¶¶7-10. 

Uber appropriately used the date of the parent email for attachments. “The fact that nonprivileged information was communicated to an attorney may be privileged, even if the 

underlying information remains unprotected.” Muro v. Target Corp., 250 F.R.D. 350, 363 (N.D. 

 

9

 Waymo has also skipped the step of in camera review of the logged communications to 

determine applicability of the crime-fraud exception. See In re Napster, 479 F.3d at 1092 

(standard for in camera review). Uber requests that, if the Court is inclined to find the crimefraud exception applies, it first review the logged documents in camera. 10 Waymo’s gamesmanship is reflected in its request for the deposition of OMM, made while 

Waymo is refusing to allow OMM, also Waymo’s current counsel, to cooperate on issues in this 

case with its other current client, Otto Trucking, and its former client, Ottomotto. Chatterjee 

Decl. (Dkt. 374) & Ex. A. thereto (Dkt. 371-1); Rivera Decl., Ex. C. 

11 “A party [makes] a prima facie showing of privilege by submitting a privilege log that 

identifies: (1) the attorney and client involved, (2) the nature of the document, (3) all persons or 

entities shown on the document to have received or sent the document, (4) all persons or entities 

known to have been furnished the document or informed of its substance, and (5) the date the 

document was generated, prepared, or dated.” Uber’s logs meet these requirements. 

12 Waymo also challenges the use of “analysis” to describe the Stroz Report, but that report was 

prepared at the request of counsel and reflects counsels’ legal analysis, advice, and conclusions. 

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Ill. 2007), aff’d, 580 F.3d 485 (7th Cir. 2009) (citing Upjohn v. United States, 449 U.S. 383, 395-

96 (1981)). Upjohn means “that even though one e-mail is not privileged, a second email which 

forwards that prior e-mail to counsel may be privileged in its entirety.” Id. “The forwarded 

material is similar to prior conversations or documents that are quoted verbatim in a letter to a 

party’s attorney.” Id. The same rule applies to attachments. Id. n.21. This makes sense—

revealing that the individual provided specific information to obtain legal advice invades the 

privilege.13 As such, where the parent email is privileged and includes an attachment, the 

transmission of that attachment is privileged and the relevant date for determining privilege as to 

the communication as a whole is the transmittal date. Moreover, Uber’s use of metadata to 

determine dates is the normal procedure in e-discovery and often provides more accurate 

information than the face of the document.14 

Uber’s limited use of “and/or” does not impair its privilege assertions. Where it was unclear 

whether a document pertained to Mr. Levandowski or another Diligenced Employee, Uber used 

“and/or” in the document’s “common interest” description. Rivera Decl. ¶ 14. The three 

individuals who were not parties to the joint defense agreement nonetheless were Ottomotto 

employees and the privilege extends to their communications. Upjohn, 449 U.S. at 395. 

Uber properly listed law firms as authors. Where a document did not list its individual 

authors on its face, Uber inserted the names of the law firms that it knows contributed to the 

document. Rivera Decl. ¶ 15. The names of the individual attorneys from those firms that 

worked on the engagement are all over the privilege logs. Id. 

One miscoding does not undermine the entire log. To facilitate this briefing, Uber worked 

diligently in a short timeframe to identify which documents on its privilege logs would continue 

to be withheld even under the Order. It appears that Waymo has identified one entry out of 

3,000+ that should have been designated “Produce in Full” following the Order, rather than 

“Privileged.” Id. ¶ 17. That does not undermine the legitimacy of the entire log.15 

 

13 To be clear, Uber does not contend that non-privileged information can be protected from 

discovery by transmitting it to counsel; such information is discoverable where it exists apart 

from being transmitted to an attorney. 

14 Moreover, where an attached document was created on April 11, 2016 or earlier and is not 

privileged under the Order (if it becomes final), a copy of the document will be produced with 

the non-privileged email from April 11 or earlier to which it corresponds. Rivera Decl. ¶ 12. 

15 Waymo’s argument that the “Court should order production of all documents for which the 

“CI” privilege [sic] when there was no common interest” is misplaced. As explained supra, the 

common interest doctrine does not even factor into the analysis until a document or 

communication is shared with someone who would otherwise break the privilege.		

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