May 17, 2017 

Via ECF 

The Honorable Jacqueline Scott Corley 

United States Magistrate Judge 

United States District Court for the Northern District of California 

San Francisco Courthouse 

450 Golden Gate Avenue 

San Francisco, CA 94102 

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

Dear Judge Corley: 

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

respectfully request an order permitting Uber and Ottomotto to file a limited sur-reply brief in 

further opposition to Plaintiff Waymo LLC’s Motion to Compel Production of the Due Diligence 

Report (Dkt. No. 369) to respond to two new and discrete arguments that Waymo made for the 

first time in its reply brief (Dkt. No. 445), and that could and should have been made in its 

opening Motion. Uber and Ottomotto seek a limited sur-reply brief of no more than four pages, 

which will be filed by Monday, May 22, at 5:00 p.m. 

Defendants raised with the Court during the May 11, 2017, conference the possibility of 

filing a sur-reply brief responding to new arguments made by Waymo for the first time in its 

reply brief. See May 11, 2017 Tr. at 11-13. Defendants noted that “this is a matter that is likely 

going to end up, one way or the other, in the Federal Circuit, and we need to get it right.” Id. at 

11:9-11. The Court agreed about the importance of getting the decision right and that its 

decision was likely to be appealed to Judge Alsup and then to the Federal Circuit. Id. at 12:2-8. 

While conferring on this request, Waymo noted that it objected to Defendants submitting a surreply that addressed arguments regarding documents Defendants produced after submitting its 

opposition brief. Defendants do not seek a sur-reply to address any arguments made by Waymo 

related to Defendants’ documents produced after Defendants filed their opposition brief. 

First, Waymo’s opening brief argued that Defendants and Messrs. Levandowski and Ron 

did not share a common legal interest because parties to a potential merger do not share common 

legal interests and, even if they did, the parties’ common interest was in furthering the crime of 

trade secret theft such that the crime-fraud exception applies. This is the sum total and substance 

of Waymo’s argument with regard to the applicability of the common interest doctrine in its 

opening brief. (Mot. 10-14.) In its reply brief, Waymo now argues that Defendants and Mr. 

Levandowski lack a common legal interest as evidenced by “the way in which the litigation 

against Waymo has actually unfolded.” (Reply 6-7.) Defendants should be permitted to respond 

substantively to this new argument. 

Second, Waymo argued in its opening brief that the crime-fraud exception applies 

because the privileged communications furthered the alleged crime of trade secret theft. (Mot. 
The Honorable Jacqueline Scott Corley 

May 17, 2017 

Page 2 

13). In support of this argument, Waymo cited Cal. Penal Code 499c. (Id.) In its reply brief, 

however, Waymo argued that two new predicate crimes—obstruction of justice and receipt of 

stolen property in violation of Cal. Penal Code 496—could be sufficient predicate crimes to 

invoke the crime-fraud exception. (Reply Br. 10; n.7.) These arguments could and should have 

been raised in Waymo’s opening brief but were not. 

For the foregoing reasons, Uber and Ottomotto request the opportunity to file a sur-reply 

brief in further opposition to Waymo’s Motion to Compel the Due Diligence Report. 

 Sincerely, 

 /s/ Karen L. Dunn 

 Karen L. Dunn 

Counsel for Uber Technologies, Inc. and 

Ottomotto LLC