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WAYMO’S MEMORANDUM IN RESPONSE TO PARAGRAPH 6 OF DKT. 784

QUINN EMANUEL URQUHART & SULLIVAN, LLP 

 Charles K. Verhoeven (Bar No. 170151) 

 charlesverhoeven@quinnemanuel.com 

 David A. Perlson (Bar No. 209502) 

 davidperlson@quinnemanuel.com 

 Melissa Baily (Bar No. 237649) 

 melissabaily@quinnemanuel.com 

 John Neukom (Bar No. 275887) 

 johnneukom@quinnemanuel.com 

 Jordan Jaffe (Bar No. 254886) 

 jordanjaffe@quinnemanuel.com 

50 California Street, 22nd Floor 

San Francisco, California 94111-4788 

Telephone: (415) 875-6600 

Facsimile: (415) 875-6700 

Attorneys for WAYMO LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

WAYMO LLC, 

Plaintiff, 

vs. 

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC, 

Defendants. 

CASE NO. 3:17-cv-00939 

PLAINTIFF WAYMO LLC’S 

MEMORANDUM IN RESPONSE TO 

PARAGRAPH 6 OF THE COURT’S JUNE 

30, 2017 ORDER (DKT. 784)

Case 3:17-cv-00939-WHA Document 893 Filed 07/14/17 Page 1 of 12
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WAYMO’S MEMORANDUM IN RESPONSE TO PARAGRAPH 6 OF DKT. 784

I. INTRODUCTION 

Plaintiff Waymo LLC respectfully files this Memorandum in response to Paragraph 6 the 

Court’s Order of June 30, 2017 (Dkt. 784), regarding the imputation of Morrison & Foerster’s 

(“MoFo’s”) and Stroz Frieberg’s (“Stroz’s”) trade secret misappropriation to Defendants. This 

Memorandum also responds to the July 7 Memorandum that Defendants filed on the same subject 

(Dkt. 824) (“Def. Memo.”). 

 As outlined in prior submissions, there is compelling evidence that both MoFo and Stroz 

acquired the 14,000 files that Anthony Levandowski stole from Waymo, in their capacity as 

agents for Defendants. Indeed, MoFo’s recently-filed response to the Court’s Order to Show 

Cause expressly admits that MoFo received a copy of these materials from Stroz. (Dkt. 883 at ¶¶ 

6-7.) Moreover, both MoFo and Stroz had ample reason to know that these files contained 

Waymo’s trade secrets when they acquired them. See Section II(A), infra. By willfully acquiring 

these files, despite knowing or having reason to know that they contained Waymo’s trade secrets, 

MoFo and Stroz misappropriated the Waymo trade secrets contained therein. See Cal. Civ. Code 

§ 3426.1(b)(1) (“Acquisition of a trade secret of another by a person who knows or has reason to 

know that the trade secret was acquired by improper means” constitutes misappropriation); 18 

U.S.C. § 1839(5)(A) (“the term ‘misappropriation’ means— (A) acquisition of a trade secret of 

another by a person who knows or has reason to know that the trade secret was acquired by 

improper means”). 

 The June 30 Order asked the parties to address three procedural questions about how to 

decide whether MoFo’s and Stroz’s actions are imputable to Defendants. (Dkt. 784 at ¶ 6.) But 

rather than focusing on the three procedural questions asked by the Court, Defendants’ responsive 

Memorandum spends the bulk of its space arguing that MoFo’s and Stroz’s actions cannot be 

imputable to Defendants at all. (Def. Memo. at 1-8.) Therefore, this Memorandum will first 

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WAYMO’S MEMORANDUM IN RESPONSE TO PARAGRAPH 6 OF DKT. 784

explain why MoFo’s and Stroz’s actions are imputable to Defendants and will then address the 

three procedural questions from the Court’s Order.1

II. THE TRADE SECRET MISAPPROPRIATION COMMITTED BY MOFO AND 

STROZ IS IMPUTABLE TO DEFENDANTS 

A. MoFo’s or Stroz’s Trade Secret Misappropriation Is Imputable to Defendants 

Under Settled Vicarious Liability Principles 

 If MoFo or Stroz — in their capacity as Defendants’ agents — misappropriated the trade 

secrets contained in the 14,000 stolen files, then this misappropriation is imputable to Defendants 

under settled vicarious liability principles. This is true whether one considers the question under 

California law or general common law. 

For example, California law holds that “vicarious liability for torts is imposed by operation 

of law upon employers for acts of their employees within the course and scope of employment, or 

upon principals for the acts of their agents.” Chee v. Amanda Goldt Prop. Mgmt., 143 Cal. App. 

4th 1360, 1375 (2006) (emphasis added); accord Debbie Reynolds Prof. Rehearsal Studios v. 

Superior Court, 25 Cal. App. 4th 222, 226 (1994) (“Under the doctrine of respondeat superior, the 

innocent principal or employer is liable for the torts of the agent or employee committed while 

acting within the scope of his employment.”); Cal. Civ. Code § 2330 (“An agent represents his

principal for all purposes within the scope of his actual or ostensible authority, and all the rights 

 

1

 As a preliminary matter, Defendants argue that Waymo has no evidence of trade secret 

misappropriation by Defendants themselves and therefore must rely on imputation from MoFo or 

Stroz to salvage its case. (Dkt. 824 at 1.) This is wholly untrue. As the Court recognized in its PI 

Order, there is compelling evidence that Defendants directly misappropriated Waymo’s trade 

secrets by allowing their former star engineer, Mr. Levandowski, to incorporate these trade secrets 

into Defendants’ self-driving car technologies. (PI Order (Dkt. 426) at 1:20-22 (“Waymo LLC has 

shown compelling evidence that its former star engineer, Anthony Levandowski, downloaded over 

14,000 confidential files from Waymo immediately before leaving his employment there”); 17:24-

18:1 (“The bottom line is the evidence indicates that Uber hired Levandowski even though it knew 

or should have known that he possessed over 14,000 confidential Waymo files likely containing 

Waymo’s intellectual property; that at least some information from those files, if not the files 

themselves, has seeped into Uber’s own LiDAR development efforts; and that at least some of 

said information likely qualifies for trade secret protection.”).) 

 

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and liabilities which would accrue to the agent from transactions within such limit, if they had 

been entered into on his own account, accrue to the principal.”).2 

Similarly, general principles of common law hold that “[p]rincipals are liable for the torts 

of their agents committed within the scope of their agency.” Holley v. Crank, 400 F.3d 667, 673 

(9th Cir. 2005); accord RESTATEMENT (THIRD) OF AGENCY § 7.04 (2006) (“A principal is subject 

to liability to a third party harmed by an agent’s conduct when the agent’s conduct is within the 

scope of the agent’s actual authority or ratified by the principal; and (1) the agent’s conduct is 

tortious, or (2) the agent’s conduct, if that of the principal, would subject the principal to tort 

liability.”) Unsurprisingly, these principles of vicarious tort liability apply to the tort of trade 

secret misappropriation. See, e.g., Extreme Reach, Inc. v. Spotgenie Partners, LLC, No. 

CV1307563DMGJCGX, 2013 WL 12081182, at *7 (C.D. Cal. Nov. 22, 2013) (“SpotGenie may 

be liable for the Sales Managers’ misappropriation of trade secrets under the doctrine of 

respondent superior . . . . California and federal courts have allowed vicarious liability claims 

under the UTSA.”) (citing caselaw); Language Line Servs., Inc. v. Language Servs. Assocs., LLC, 

No. C 10-02605 JW, 2010 WL 2764714, at *4 (N.D. Cal. July 13, 2010) (imputing trade secret 

misappropriation from employees to employer where employees “acted within the scope of their 

employment, since an act of this nature was generally foreseeable as part of their duties”); 

Competitive Techs. v. Fujitsu Ltd., 286 F. Supp. 2d 1118, 1147–48 (N.D. Cal. 2003) (“the Court 

finds that Fujitsu has, nonetheless, stated a claim for misappropriation of trade secrets as to UI by 

alleging that Competitive was ‘acting with and for UI.’ In particular, this allegation may be 

reasonably construed as an allegation that UI ratified or approved Competitive’s conduct.”); 

Newport News Indus. v. Dynamic Testing, Inc., 130 F. Supp. 2d 745, 754 (E.D. Va. 2001) 

(“logically the theory of vicarious liability would apply to trade secret torts committed by an agent 

in the course and the scope of the agency.”) 

 

2

 Because even an “innocent” principal is subject to vicarious liability, Debbie Reynolds, 25 Cal. 

App. 4th at 226, Judge Corley’s ruling declining to apply the crime-fraud exception to the UberMoFo relationship (Dkt. 731 at 2) does not relieve Uber of vicarious liability. 

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Here, there can be no dispute that Stroz and MoFo were acting within the scope of their 

agency (as agents for Defendants) when they obtained and viewed the files that Mr. Levandowski 

stole from Waymo. Indeed, viewing these files was a central purpose of the “Due Diligence” 

process for which Stroz and MoFo were specifically retained. There also is an overwhelming 

inference that Defendants knew these files contained Waymo’s trade secrets. As Magistrate Judge 

Corley has explained, Stroz was specifically retained to investigate Mr. Levandowski’s “Bad 

Acts,” including “misappropriation of Waymo’s . . . trade secrets.” (Dkt. 566 at 2-3.) And this 

Court has explained, “[t]he bottom line is the evidence indicates that Uber hired Levandowski 

even though it knew or should have known that he possessed over 14,000 confidential Waymo 

files likely containing Waymo’s intellectual property . . . . and that at least some of said 

information likely qualifies for trade secret protection.” (PI Order at 17:24-18:1.) Therefore, 

Defendants authorized Stroz and MoFo — as Defendants’ agents — to commit the tort of trade 

secret misappropriation by acquiring Waymo’s trade secrets embodied in the stolen files. See Cal. 

Civ. Code § 3426.1(b)(1); 18 U.S.C. § 1839(5)(A). It follows that Defendants are vicariously 

liable for this tort, under the settled vicarious liability principles recited above. 

B. Defendants Cannot Avoid This Rule By Arguing That MoFo or Stroz Were 

Contractually Bound Not to Disclose Waymo’s Trade Secrets to Defendants 

To avoid this settled rule and support their no-imputation position, Defendants argue that 

MoFo’s and Stroz’s acquisition of Waymo’s trade secrets cannot be imputed to Defendants 

because MoFo and Stroz supposedly had a contractual duty to not disclose this information to 

Defendants. (Def. Memo. at 1:20-21 (“Irrespective of what MoFo or Stroz may or may not have 

obtained, they were contractually barred from sharing such information with Uber”); 2:2-6 

(same).) But as explained below, there are multiple reasons — both procedural and substantive — 

why this argument fails. 

1. Defendants’ Argument is Procedurally Barred Because It Relies on 

Improper Selective Privilege Waiver 

 First, Defendants are procedurally barred from arguing that MoFo or Stroz were 

contractually prohibited from sharing Waymo’s trade secrets with Uber. In an attempt to prove 

these supposed contractual restraints, Defendants cite the unredacted version of the March 21, 

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2016 Levandowski-Stroz contract. (Def. Memo. at 6:21-7:1.) But this is the same contract that 

Defendants originally redacted on privilege grounds. (Compare Dkt. 545-8 (redacted version) 

with Dkt. 806-4 (unredacted version).) The Court made clear that Defendants had until June 1, 

2017 to decide whether to waive any privilege, “on pain of preclusion thereafter.” Dkt. 438 at 

1:10. In response to this Court order, Defendants stated that they would not waive any privilege. 

Dkt. 531 at 1:9-10 (“Defendants do not intend to waive any privileges that they have asserted, or 

will assert, throughout this litigation.”) So Waymo had to move to compel production of an 

unredacted version of this very document. Defendants opposed, trying to retain redactions, 

supposedly based on attorney-client privilege, work-product, and common-interest privilege, over 

the Stroz-Levandowski contract. (Dkt. 552.) Yet Defendants now rely on a previously 

unproduced unredacted version of the Levandowski-Stroz contract to support their position that 

Stroz was not allowed to produce the downloaded materials without Mr. Levandowski’s consent. 

This sort of tactical selective waiver has been Defendants’ favored tactic throughout this litigation,

but it is forbidden by the Court’s Order (Dkt. 438) and by virtue of Defendants’ response thereto 

(Dkt. 531). Thus, Defendants cannot cite the Levandowski-Stroz contract to support their 

argument that Stroz was barred from disclosing Waymo’s trade secrets to Uber. 

Defendants also cite the Stroz Engagement Letter (Dkt. 370-3) to argue that Stroz and/or 

MoFo could not disclose Waymo’s trade secrets to Uber. (Def. Memo. at 6:16-21.) But 

Defendants have an obvious selective waiver problem here as well. The very document that 

Defendants cite (Dkt. 370-3) is a redacted document with numerous privilege redactions. Thus,

Defendants are selectively citing favorable portions of this document when keeping other 

(presumably-unfavorable) portions shielded by privilege. This tactic is forbidden, as “[t]he 

privilege which protects attorney-client communications may not be used both as a sword and a 

shield.” Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). 

2. Defendants’ Argument Is Unavailing Because the Evidence Indicates That 

Waymo’s Trade Secrets Were Shared with Uber 

 Even if not procedurally barred, Defendants’ argument — i.e., that Stroz and/or MoFo 

were contractually barred from sharing Waymo’s trade secrets with Uber — is unavailing under 

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the facts of this case because the evidence indicates that these entities did share Waymo’s trade 

secrets with Uber. For example, in response to the Expedited Discovery Order (Dkt. 61) that 

required Defendants to produce the stolen files, Defendants produced a massive, 3,000-entry 

privilege log. (Dkts. 636-5; 636-7; 636-9.) This raises an inescapable inference that Defendants 

obtained the stolen files, given that the stolen files were the very subject of the Expedited 

Discovery Order. Either Defendants obtained these files directly from Mr. Levandowski (which 

Defendants have steadfastly denied) or Defendants obtained these files from the intermediary 

agents who had obtained them from Mr. Levandowski — namely, MoFo and/or Stroz. 

Furthermore, Defendants’ Paragraph Four Accounting under the PI Order (Dkt. 762) 

discloses several Uber employees who received the Due Diligence Report from Stroz. (Id. at 7-8.) 

While Defendants have thus far stalled Waymo’s ability to receive this Due Diligence Report, it is 

highly likely that the Due Diligence Report discloses at least some of the trade secrets embodied 

in the stolen files. After all, a central purpose of the Due Diligence process was to assess Mr. 

Levandowski’s theft of Waymo’s trade secrets. It would be difficult if not impossible for Stroz to 

convey its analysis of this issue without discussing at least some specifics of the trade secrets at 

issue. 

3. Defendants’ Argument Is Unavailing Because the Law Does Not Support 

Their Position that Contractual Restrictions Can Prevent a Tort From 

Being Imputed from Agent to Principal 

Finally, even if there were contractual restrictions that prevented MoFo and/or Stroz from 

disclosing Waymo’s trade secrets to Uber — and even if Defendants were procedurally allowed to 

rely on such contractual restrictions — Defendants’ no-imputation position is incorrect under the 

law. Defendants cite the Restatement (Third) of Agency § 5.03 for the proposition that “an 

agent’s knowledge cannot be imputed to a principal where the agent ‘is subject to a duty to 

another not to disclose the fact to the principal.’” (Def. Memo. at 4:27-5:1 (quoting 

RESTATEMENT (THIRD) OF AGENCY § 5.03).) But there is no indication that this proposition holds 

when the agent’s acquisition of knowledge is itself a tort. Indeed, the very Restatement section 

that Defendants rely on — Section 5.03 — states: “If an agent’s action interferes with the legally 

protected interests of other persons, the action may constitute a tort. An actor’s knowledge and 

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intention often determine whether an act is tortious. In this context, imputing notice to the 

principal of facts that an agent knows or has reason to know underlies the principal’s vicarious 

liability for action by the agent that constitutes a tort.” RESTATEMENT (THIRD) OF AGENCY § 

5.03, cmt. (d)(2) (emphasis added). 

Moreover, it makes perfect sense that if a principal authorizes an agent to commit a tort — 

as is the case here — then the principal cannot be absolved of vicarious liability just because some 

contractual restriction prevents the agent from conveying the fruits of the tort to the principal. The 

fact that the principal authorized the tort is alone sufficient to subject the principal to vicarious 

liability, regardless of any separate information “firewalls” that might exist between the principal 

and the agent. Section 5.03 expresses this basic point through an illustration: 

P wants to sell goods to the government of country X but is concerned that payoffs 

may be necessary to effect such a sale. P employs A in country X and advises A 

that P does not wish to know of any commissions or other payments A may need to 

pay to effect the sale of P’s goods. P may nonetheless be subject to liability for 

violations of anti-bribery laws. Notice may be imputed to P of A’s knowledge of 

payments made by A. 

RESTATEMENT (THIRD) OF AGENCY § 5.03, cmt. (b), Illustration 1. 

None of Defendants’ cited California authority suggests a different outcome, as none of 

this authority holds that a principal may ever be insulated from vicarious liability for a tort that it 

authorized its agent to carry out. If anything, Defendants’ cited authority further supports the 

conclusion that Stroz’s and MoFo’s misappropriation is imputable to Defendants. For example, 

Defendants’ cited case of Triple A Mgmt. Co. v. Frisone, 69 Cal. App. 4th 520 (1999) held that “it 

is correct to impute to the Frisones knowledge of the two critical facts we have identified above” 

because the Frisones’ agent “obtained that knowledge in the course of the agency for which the 

Frisones had employed it.” Id. at 535. The same is true here — Stroz and MoFo acquired 

knowledge of Waymo’s trade secrets in the course of the agency for which Defendants engaged 

them, and thus their knowledge is imputable to Defendants. 

The case that Defendants rely on most heavily is Droeger v. Welsh Sporting Goods Corp., 

541 F.2d 790 (9th Cir. 1976). But in Droeger, the principal never authorized its agent to engage in 

trade secret misappropriation. In fact, the agent in Droeger acquired the trade secret through 

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wholly legitimate means — namely, by communications with the inventor and trade secret holder. 

Id. at 791. Thus, Droeger certainly does not hold that when a principal authorizes an agent to 

engage in trade secret misappropriation, the principal may be insulated from vicarious liability.3

Defendants also argue that allowing imputation would “undermine routine due diligence,” 

on the theory that companies would be “chilled” from retaining a due diligence agent to 

investigate trade secret misappropriation if doing so could impute liability back to the company. 

(Def. Memo. at 7:18-8:7.) This argument makes little sense. If a principal company knows or 

seriously suspects that one of its prospective employees has engaged in trade secret 

misappropriation, then the proper course of conduct is to stay away from that individual — not 

retain an agent to further view and disseminate the trade secrets. If a principal company does 

engage a due diligence agent to investigate a prospective employee’s trade secret misappropriation 

and the agent discovers that the employee has stolen a massive amount of trade secret documents, 

the proper course is to terminate that employee and report the crime to the former employer. 

Applying standard principles of imputation and vicarious liability would not chill legitimate due 

diligence efforts — only those followed up by tortious conduct. But here, Defendants and their 

agents have tenaciously held on to Waymo’s trade secret documents for nearly a year, despite 

numerous demands and Court orders to return them. It is perverse and hypocritical for 

Defendants to argue that this flagrant conduct should be condoned in order to prevent “chilling” of 

legitimate due diligence efforts. 

Equally meritless is Defendants’ argument that allowing imputation “would amount to an 

end-run around CUTSA’s and DTSA’s rejection of the ‘inevitable disclosure’ theory of trade 

secret misappropriation.” (Def. Memo. at 8:8-9.) The inevitable disclosure theory was a way of 

presuming that future misappropriation would occur even when no misappropriation had actually 

occurred. See, e.g., Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443, 1458-59 (2002). But here, 

 

3

 Droeger is also distinguishable on other grounds as well. For example, the agent’s mere 

knowledge of the trade secret in Droeger could not impose vicarious liability on the principal 

because trade secret misappropriation at the time of Droeger required use of a trade secret. Id. at 

792-93. Now, however, trade secret misappropriation can be shown by mere acquisition of a trade 

secret, even absent any use. See Cal. Civ. Code § 3426.1(b)(1); 18 U.S.C. § 1839(5)(A). 

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trade secret misappropriation by MoFo and Stroz has in fact occurred, with the authorization and 

of Defendants. There is nothing inequitable about holding Defendants vicariously liable for this 

misappropriation that they authorized. 

III. COURT QUESTION #1: “WHETHER THE JUDGE VERSUS THE JURY 

SHOULD DECIDE WHETHER AND TO WHAT EXTENT THE EXCEPTION TO 

IMPUTATION APPLIES” 

 As explained above, the “exception” to imputation that Defendants advocate for — i.e., 

Defendants’ position that there is no imputation if the agent has a contractual duty not to disclose 

information to the principal — does not apply at all. The relevant question is simply whether 

MoFo and/or Stroz were acting in the scope of their agency when they committed the tort of trade 

secret misappropriation. If so, then Defendants (as principals) are vicariously liable for this tort.

The question of whether MoFo and/or Stroz were acting within the scope of their agency is 

a question of fact, and thus should be decided by the jury if there are any genuinely-disputed facts 

or inferences bearing on this question. Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 213 (1991) 

(“Ordinarily, the determination whether an employee has acted within the scope of employment 

presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed 

and no conflicting inferences are possible.’”); Elias v. McJab, Inc., No. D068119, 2016 WL 

5224378, at *9 (Cal. Ct. App. Sept. 22, 2016) (“As a threshold matter, we conclude the 

determination whether Mullaney was acting within the scope of his agency when he assisted 

plaintiffs with the sale of the Spain property was a question for the jury.”) 

IV. COURT QUESTION #2: “IF THE JUDGE [DECIDES THE ISSUE], WHETHER 

THE ISSUE CAN BE DECIDED BASED ON THE IN CAMERA REVIEW OF 

PRIVILEGED INFORMATION” 

As noted above, the dispositive question for whether MoFo’s and Stroz’s trade secret 

misappropriation can be imputed to Defendants is whether MoFo and Stroz were acting within the 

scope of their agency when they committed this tort. Because this is a question of fact that is to be

presumptively made by the factfinder, it must be decided based on the admissible, non-privileged 

evidence of record. Even if there are no disputed issues of fact or competing inferences — such 

that this question could be decided by the Court at summary judgment or JMOL — the Court must 

rely on the non-privileged evidentiary record to decide this issue and cannot rely on ex parte, in 

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camera submissions. Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 

1995) (“It is therefore the firmly held main rule that a court may not dispose of the merits of a case

on the basis of ex parte, in camera submissions.”) (quoting Anti–Fascist Committee v. McGrath,

341 U.S. 123, 170 (1951) (Frankfurter, J., concurring)). 

V. COURT QUESTION #3: “WHETHER AND TO WHAT EXTENT DEFENDANTS 

CAN RELY ON THE EXCEPTION WITHOUT WAIVING PRIVILEGE OVER 

DOCUMENTS BEARING ON SUCH OBLIGATIONS – INCLUDING AS TO 

EVERY VERSION OF ANY AND ALL PROTOCOLS PUT IN PLACE FOR THE 

DUE DILIGENCE INVESTIGATION – THAT HAVE THUS FAR BEEN 

WITHHELD FROM PRODUCTION” 

The Court’s May 15 privilege order was clear and unambiguous: Defendants had until June 

1, 2017 to decide whether to waive any privilege, “on pain of preclusion thereafter.” (Dkt. 438 at 

1:10.) In response to this Court order, Defendants stated that they would not waive any privilege. 

(Dkt. 531 at 1:9-10 (“Defendants do not intend to waive any privileges that they have asserted, or 

will assert, throughout this litigation.”)) Thus, it is far too late for Defendants to waive privilege 

and rely on any newly-disclosed versions of due diligence protocols in an attempt to show that 

MoFo’s or Stroz’s trade secret theft was outside the scope of their agency. 

Nonetheless, if Defendants were allowed to waive privilege and rely on newly-disclosed 

protocols (which would be contrary to the Court’s May 15 privilege order), Defendants would 

thereby waive privilege over the entire subject-matter, including all other versions of such 

protocols and any communications about disclosure under those protocols. Phoenix Sols. Inc. v. 

Wells Fargo Bank, N.A., 254 F.R.D. 568, 576 (N.D. Cal. 2008) (“Wells Fargo argues that Phoenix 

has attempted to use the disclosed drafts and other documents as both a shield and a sword, that is, 

to reveal a limited aspect of privileged communications in order to gain a tactical advantage in 

litigation. If this were the case, Phoenix would have broadly waived the privilege as to all other 

communications relating to the same subject.”) (emphasis added). 

 

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WAYMO’S MEMORANDUM IN RESPONSE TO PARAGRAPH 6 OF DKT. 784

DATED: July 14, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP 

By /s/ Charles K. Verhoeven 

Charles K. Verhoeven 

Attorneys for WAYMO LLC 

Case 3:17-cv-00939-WHA Document 893 Filed 07/14/17 Page 12 of 12