NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MILES EHRLICH (Bar No. 237954)

miles@ramsey-ehrlich.com

ISMAIL RAMSEY (Bar No. 189820)

izzy@ramsey-ehrlich.com

AMY CRAIG (Bar No. 269339)

amy@ramsey-ehrlich.com

RAMSEY & EHRLICH LLP

803 Hearst Avenue

Berkeley, CA 94710

(510) 548-3600 (Tel)

(510) 291-3060 (Fax)

Attorneys for Non-Party Anthony Levandowski

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

v.

UBER TECHNOLOGIES, INC., et al.,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 3:17-cv-00939 WHA

Second Supplement to Court-Ordered 

Fifth Amendment Submission 

Public Version

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 1 of 27
i

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

I. BACKGROUND ................................................................................................................. 1

A. Factual Background ............................................................................................................. 1

B. Procedural Background........................................................................................................ 1

II. THE LEGAL BASES FOR MR. LEVANDOWSKI’S ASSERTION OF THE FIFTH 

AMENDMENT.................................................................................................................... 3

A. The Constitution Prohibits the Court from Forcing Mr. Levandowksi to Be a Witness 

Against Himself ................................................................................................................... 4

B. The Fifth Amendment Protects Not Just Against Directly-Incriminating Disclosures, But 

Also Against Those That Could Serve as an Indirect Link to Incriminating Evidence....... 5

C. The Fifth Amendment Protects an Individual from Being Forced to Produce Records if 

Her “Act of Production” Would Implicitly Communicate Incriminating Information ....... 8

D. The Breadth of a Discovery Request Contributes to a Finding that the Act of Production 

Constitutes Compelled Incrimination .................................................................................. 8

E. Mr. Levandowski’s Fifth Amendment Rights Extend to Any Materials He Provided As 

Part of the Common-Interest Privileged Due Diligence Review....................................... 10

III. THE “FOREGONE CONCLUSION” INQUIRY FOCUSES ON WHAT 

INFORMATION IS ALREADY KNOWN TO THE GOVERNMENT .......................... 12

IV. MR. LEVANDOWSKI SHOULD NOT BE FORCED TO PUBLICLY REVEAL THE 

VERY INFORMATION THE FIFTH AMENDMENT PROTECTS HIM FROM 

DISCLOSING.................................................................................................................... 14

V. WAYMO’S REQUESTS CALL FOR POTENTIALLY INCRIMINATING RESPONSES 

AND THUS VIOLATE MR. LEVANDOWSKI’S FIFTH AMENDMENT RIGHTS 

UNDER HUBBELL ........................................................................................................... 18

A. Request 1............................................................................................................................ 19

B. Request 3............................................................................................................................ 21

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 2 of 27
ii

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

Cases

Bright, 596 F.3d at 691 ........................................................................................................... 13, 18

Curcio v. United States, 354 U.S. 118 (1957) .............................................................................. 17

Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000)...................................... 4, 22

Doe v. United States (In re Grand Jury Subpoena), 383 F.3d 905 (9th Cir. 2004)........................ 8

eBay, Inc. v. Digital Point Solutions, Inc., No. C 08-4052 JF (PVT),

2010 U.S. Dist. LEXIS 7997 (N.D. Cal. Jan. 12, 2010).............................................................. 14

Fisher v. United States, 425 U.S. 391 (1976)........................................................................ passim

GE v. Liang, No. CV 13-08670 DDP (VBKx), 

2014 U.S. Dist. LEXIS 36243 (C.D. Cal. Mar. 19, 2014)............................................................ 14

Haught v. City of Anderson, No. 2:11-CV-1653-JAM-CMK, 2015 U.S. Dist. LEXIS 127823 

(E.D. Cal. Sept. 23, 2015)............................................................................................................ 7

Henry v. Sneiders, 490 F.2d 315 (9th Cir. 1974).......................................................................... 14

Hoffman v. United States, 341 U.S. 479 (1951).............................................................................. 6

Holmes v. Collection Bureau of Am., Ltd., No. 09-02540-WHA, 2010 U.S. Dist. LEXIS 4253 

(N.D. Cal. Jan. 8, 2010) ............................................................................................................. 11

In re CV Therapeutics, Inc. Sec. Litig., No. C-03-3709 SI (EMC), 2006 U.S. Dist. LEXIS 41568 

(N.D. Cal. Jun 16, 2006)............................................................................................................ 12

In re Grand Jury Proceedings, Subpoenas for Documents, 41 F.3d 377 (8th Cir. 1994) ..... passim

In re Grand Jury Subpoena, 383 F.3d at 909 ........................................................................ passim

In re Harris, 221 U.S. 274 (1911) ................................................................................................ 12

In re Katz, 623 F.2d at 126 ........................................................................................................... 11

In re Syncor ERISA Litig., 229 F.R.D. 636 (C.D. Cal. 2005)....................................................... 15

J.C. Penney Life Ins. Co. v. Houghton, No. 86-2637, 1986 U.S. Dist. LEXIS 16072 

(E.D. Pa. Dec. 23, 1986)........................................................................................................... 6, 22

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 3 of 27
iii

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Kastigar v. United States, 406 U.S. 441 (1972) ........................................................................... 18

Maffie v. United States, 209 F.2d 225 (1st Cir. 1954) .................................................................... 6

Malloy v. Hogan, 378 U.S. 1 (1964)............................................................................................... 4

Marchetti v. United States, 390 U.S. 39 (1968)............................................................................ 14

Quinn v. United States, 349 U.S. 155 (1955).................................................................................. 4

SEC v. Chin, No. 12-cv-01336-PAB-BNB, 2012 U.S. Dist. LEXIS 182252 

(D. Colo. Nov. 29, 2012) .............................................................................................................. 15

SEC v. Forster, 147 F. Supp. 3d 223 (S.D.N.Y. 2015)..................................................... 16, 17, 21

Shendal v. United States, 312 F.2d 564 (9th Cir. 1963) ................................................................. 6

Simpson v. United States, 241 F.2d 222 (9th Cir.), rev’d 355 U.S. 7 (1957) ................................. 7

Simpson v. United States, 355 U.S. 7 (1957).................................................................................. 7

Teleglobe Communs. Corp. v. BCE, Inc. (In re Teleglobe Communs. Corp.), 

493 F.3d 345 (3rd Cir. 2007) ........................................................................................................ 12

United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003)....................................................... 11

United States v. Chandler, 380 F.2d 993 (2d Cir. 1967) ................................................................ 6

United States v. Christensen, 828 F.3d 763 (9th Cir. 2016)......................................................... 12

United States v. Doe, 465 U.S. 605 (1984)........................................................................... 8, 9, 15

United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988)................................................... 7

United States v. Fox, 721 F.2d 32 (2d Cir. 1983)......................................................................... 10

United States v. Henke, 222 F.3d 633 (9th Cir. 2000).................................................................. 11

United States v. Hubbell, 530 U.S. 27 (2000)........................................................................ passim

United States v. Kahriger, 345 U.S. 22 (1953)............................................................................. 14

United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).................................................................... 12

United States v. Neff, 615 F.2d 1235 (9th Cir. 1980)...................................................................... 6

United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006).................................................................. 8

United States v. Sideman & Bancroft, LLP, 704 F.3d 1197 (9th Cir. 2013) ................................ 10

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 4 of 27
iv

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States v. Stone, 976 F.2d 909 (4th Cir. 1992) ................................................................... 13

United States v. Zolin, 491 U.S. 554 (1989)................................................................................. 18

Statutes

18 U.S.C. § 1832............................................................................................................................. 5

18 U.S.C. § 6002........................................................................................................................... 21

18 U.S.C. §§ 6002......................................................................................................................... 16

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 5 of 27
1

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

On May 24, 2017, Judge Alsup informed the parties that any question concerning the 

validity of Mr. Levandowski’s invocation of his Fifth Amendment privilege in response to 

Waymo’s requests for production of records has been referred to Magistrate Judge Corley along 

with other discovery matters in the case. Dkt. 501. We make this submission to set forth the 

basis for Mr. Levandowski’s invocation of his Fifth Amendment privilege with respect to any 

materials he is withholding under that privilege. In his notice, Judge Alsup commented that Mr. 

Levandowski’s submission “should not be a long document,” Dkt. 501 at 1:19-22, but he noted 

certain deficiencies in both the in camera showing and public briefing Mr. Levandowski had

made thus far. With this submission, Mr. Levandowski seeks to correct any deficiencies, and, as 

compelled by Judge Alsup’s initial April 12, 2017 Order, provide additional detail in camera 

regarding the proper legal basis under the Fifth Amendment for any materials Mr. Levandowski 

is withholding in response to Waymo’s subpoena. 

I. BACKGROUND

A. Factual Background

Mr. Levandowski is not a party to this litigation. Nevertheless, Waymo’s lawsuit against 

Uber centers on the allegation that Mr. Levandowski stole Waymo’s trade secrets for later use at

Uber and the related allegation that Uber was complicit in Mr. Levandowski’s “criminality.” 

See, e.g., Dkt. 512 at 11:1-6. On May 11, 2017, Judge Alsup formally referred this case to the 

United States Attorney’s Office “for investigation of possible theft of trade secrets.” Dkt. 428. 

Given the nature of the allegations, Mr. Levandowski retained personal counsel through whom 

he has repeatedly asserted his Fifth Amendment protection against self-incrimination. See, e.g., 

Dkts. 131, 147, 169, 230, 244, and 382. 

B. Procedural Background

April 9, 2017: On Sunday, April 9, 2017, Waymo served non-party Mr. Levandowski 

with a subpoena containing six broadly-framed document requests. Because the Court’s 

expedited discovery order authorized discovery only from parties (and Mr. Levandowski is not a 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 6 of 27
2

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

party), Mr. Levandowski informed Waymo that its subpoena was outside the scope of the 

Court’s discovery order. In response, Waymo asked the Court to authorize its subpoena and rule 

that its requests were not unduly burdensome. See Dkt. 212. 

April 12, 2017: At a hearing on April 12, Judge Alsup granted Waymo’s request and 

modified the existing expedited discovery order to allow third-party discovery relating to Mr. 

Levandowski, including deposition and document requests. Judge Alsup also struck four of 

Waymo’s six requests as overbroad, but ordered Mr. Levandowski to respond to two requests

(Request No. 1 and Request No. 3). Judge Alsup also ordered Mr. Levandowski to file an in 

camera privilege log as well as a public brief setting out the basis for his invocation of the Fifth 

Amendment by April 19, 2017. 

April 14, 2017: Waymo took Mr. Levandowski’s deposition, during which Mr. 

Levandowski asserted his Fifth Amendment rights. 

April 19, 2017: In compliance with the Court’s April 12 order, Mr. Levandowski filed 

an in camera submission setting forth the basis for his Fifth Amendment invocation, along with a 

public brief setting forth, in more general terms, the legal principles underlying his Fifth 

Amendment assertions. On the same day, Mr. Levandowski also produced the first of what 

would later amount to four separate sets of responsive, non-privileged documents to Waymo. 

April 24, 2017: Based on further review, Mr. Levandowski supplemented his in camera

Fifth Amendment privilege submission to Judge Alsup. (Mr. Levandowski had this supplement 

prepared for submission on Friday, April 21, 2017, but the courthouse was unexpectedly closed

for the day due to a power outage.). 

April 27, 2017 - May 11, 2017: Mr. Levandowski made three additional productions of 

responsive, non-privileged documents to Waymo. 

May 22, 2017: At Waymo’s request, Mr. Levandowksi engaged in a meet and confer to

discuss Waymo’s concerns with Mr. Levandowski’s invocation of his Fifth Amendment rights. 

On the call, Waymo requested briefing on the issues they raised and the Special Master 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 7 of 27
3

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

instructed both parties to submit simultaneous two-page letter briefs to the Court by 4 pm the 

next day, May 23, 2017.

1

 Mr. Levandowski and Waymo both complied with that order.

May 23, 2017: In accordance with the Special Master’s directive, Mr. Levandowski filed

a letter brief with the Court to address issues Waymo had asked the Court to address.

May 24, 2017: Judge Alsup issued a notice stating that the sufficiency of Mr. 

Levandowski’s in camera showing was to be decided by Judge Corley. In his notice, Judge 

Alsup criticized Mr. Levandowski’s public filing for failing “to provide ‘enough of the 

argument’ so that Waymo could respond.” Dkt. 501 at 2:1-6. Judge Alsup observed that the

“privilege log” he had ordered “should not be a long document and could be supplied in short 

order.” Id. at 1:19-20. Judge Alsup also noted that the submissions made thus far in camera had 

not supported the full breadth of the Fifth Amendment privilege Mr. Levandowski was then 

invoking. Id. at 3:19-21 (“Levandowski’s submissions thus far have been wholly inadequate to 

support his sweeping claims of privilege.”).

May 25, 20172

: During a hearing on another motion, Judge Corley ordered Mr. 

Levandowski to supplement his in camera submission and his public filing by Friday, June 2, 

2017 at 4:00 p.m.

II. THE LEGAL BASES FOR MR. LEVANDOWSKI’S ASSERTION OF THE 

FIFTH AMENDMENT

 

1 The Court’s May 24, 2017 Notice describes Mr. Levandowski’s letter brief as “an apparently 

preemptive discovery letter brief.” Dkt. 501 at 2:23-25. That was not the case. Waymo 

requested the briefing and the Special Master acceded to that request and directed Mr. 

Levandowski and Waymo to file “simultaneous” two-page letter briefs at 4 p.m. on May 23, 

2017. Both briefs were filed within minutes of each other. 2 From April 9, 2017 through May 30, 2017, non-party Mr. Levandowski was also required to 

file nearly a dozen other briefs in this litigation, including emergency briefing with the Federal 

Circuit to stay the effect of the Court’s April 10, 2017 Order. See Dkt. Nos. 371, 379, 382, 384, 

466, 472, 473, 492, 519 and USCA Case No. 17-1904 Federal Circuit, Docket Nos. 2 and 8.

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 8 of 27
4

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Judge Alsup has already observed that the central bases for Mr. Levandowski’s 

invocation of the Fifth Amendment are “uncontroversial”: 

First, the Fifth Amendment privilege against self-incrimination can be asserted in 

a civil proceeding when “the person invoking the privilege reasonably believes 

that his disclosures could be used in a criminal prosecution, or could lead to other 

evidence that could be used in that manner.” Doe ex rel. Rudy-Glanzer v. 

Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000). Second, an individual may invoke 

the Fifth Amendment to avoid producing documents on the basis that the act of 

production “may have a compelled testimonial aspect” as to that individual. 

United States v. Hubbell, 530 U.S. 27, 36 (2000); Fisher v. United States, 425 

U.S. 391, 410 (1976).

Dkt. 202 at 6. As further discussed below, these principles prohibit the Court from compelling 

Mr. Levandowski to produce the records Waymo now seeks—unless he is granted immunity.

A. The Constitution Prohibits the Court from Forcing Mr. Levandowksi to Be a 

Witness Against Himself

The Fifth Amendment privilege not to be a witness against oneself is a central tenet of 

our democracy. Quinn v. United States, 349 U.S. 155, 161 (1955). “[A]ny compulsory 

discovery by extorting the party’s oath . . . to convict him of crime . . . is contrary to the 

principles of a free government . . . . It may suit the purposes of despotic power, but it cannot 

abide the pure atmosphere of political liberty and personal freedom.” Malloy v. Hogan, 378 U.S. 

1, 9 n.7 (1964). The Fifth Amendment’s “protections against self-incrimination can be asserted 

in any proceeding, be it civil, criminal, administrative, judicial, investigative or adjudicatory.” 

Glanzer, 232 F.3d at 1263. In the civil context, an individual may invoke the Fifth Amendment 

privilege in all “circumstances in which the person invoking the privilege reasonably believes 

that his disclosures could be used in a criminal prosecution, or could lead to other evidence that 

could be used in that manner.” Id. The application of the “privilege against self-incrimination 

does not depend upon the likelihood, but upon the possibility, of prosecution.” Id. (emphasis in 

original). 

There is no question that Mr. Levandowski’s Fifth Amendment privilege is implicated by 

the case at bench. Waymo has directly accused Mr. Levandowski of committing a crime. The 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 9 of 27
5

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

complaint alleges that Mr. Levandowski was involved in “steal[ing]” and “misappropriat[ing]” 

intellectual property. See, e.g., Dkt. 23 ¶¶ 10, 11 & p. 11 § IV.D. Waymo’s briefs are similarly 

threatening; a recent brief, for example, began with the assertion that “Mr. Levandwoski stole 

14,000 highly sensitive files immediately prior to departing Waymo . . . .” Dkt. 512 at 1. 

Waymo’s claims plainly conjure the threat of criminal sanction under 18 U.S.C. § 1832 and other 

similar federal or state statutes.3 And, indeed, on May 11, 2017, Judge Alsup formally referred 

this case to the United States Attorney’s Office “for investigation of possible theft of trade 

secrets.” Dkt. No. 428. 

Mr. Levandowski is thus faced with a clear “possibility[ ] of prosecution” and his Fifth 

Amendment privilege against self-incrimination is implicated. Glanzer, 232 F.3d at 1263. Put 

simply, then, in the current circumstances, Mr. Levandowski cannot be compelled to testify—

either explicitly or implicitly—about whether he took alleged trade secrets when he departed 

Waymo’s employ, or about any other topics that might tend to inculpate him.

B. The Fifth Amendment Protects Not Just Against Directly-Incriminating 

Disclosures, But Also Against Those That Could Serve as an Indirect Link to 

Incriminating Evidence

The Fifth Amendment privilege applies not only in “those circumstances where the 

disclosures would . . . be directly incriminating” (as in a confession), but also to circumstances in 

which disclosures “could provide an indirect link to incriminating evidence.” Glanzer, 232 F.3d 

at 1263. As the Supreme Court put it, “[t]he privilege afforded [by the Fifth Amendment] not 

only extends to answers that would in themselves support a conviction under a federal criminal 

statute but likewise embraces those which would furnish a link in the chain of evidence needed 

 

3 The question whether the allegations in the complaint are accurate, of course, remains to be litigated —

but that question is irrelevant to the issues before the Court in this motion, as “one of the Fifth 

Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by 

ambiguous circumstances.” Ohio v. Reiner, 532 U.S. 17, 21 (2001) (quoting Grunewald v. United States, 

353 U.S. 391, 421 (1957), quotation marks omitted). “[T]ruthful responses of an innocent witness, as 

well as those of a wrongdoer, may provide the government with incriminating evidence from the 

speaker’s own mouth.” Id.

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 10 of 27
6

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486 

(1951). Thus, the privilege applies when answers to questions could:

• “[P]rovide a lead or clue to evidence having a tendency to incriminate.” United States v. 

Neff, 615 F.2d 1235, 1239 (9th Cir. 1980).

• Disclose “a fact that could serve as a link in a chain of circumstantial evidence from 

which guilt might be inferred” or a “fact” that “might furnish a lead to a bit of evidence 

useful to the prosecution.” Maffie v. United States, 209 F.2d 225, 228 (1st Cir. 1954).

• “[G]ive a prosecutor a starting point from which he might proceed step by step to link the 

witness with criminal offenses.” J.C. Penney Life Ins. Co. v. Houghton, No. 86-2637, 

1986 U.S. Dist. LEXIS 16072 at *9 (E.D. Pa. Dec. 23, 1986).

In short, the link-in-the-chain test is “broadly protective” and must be “liberally construed” by 

the courts. United States v. Chandler, 380 F.2d 993, 997, 1000 (2d Cir. 1967). A “claim of 

privilege is good unless the court can find that any prospective [disclosure] could not possibly

incriminate or form a link in the chain.” Shendal v. United States, 312 F.2d 564, 565 (9th Cir. 

1963) (emphasis added, citing Hoffman, 341 U.S. 479). 

In this context, the seemingly benign character of requested evidence makes no 

difference: the Fifth Amendment protects individuals from disclosing any information, no matter 

how uncontroversial in isolation, that could potentially be used against that individual in a 

criminal prosecution or to gather information that could be used to establish guilt. Thus, in 

Hoffman, the Supreme Court reversed a contempt conviction arising from a grand jury witness’s 

refusal to answer questions about his occupation and about whether he had contacts with a 

particular person. 341 U.S. at 481. A “special grand jury” had been empaneled to investigate 

criminal “rackets” involving alleged “violations of the customs, narcotics and internal revenue 

liquor laws of the United States, the White Slave Traffic Act, perjury, bribery, and other federal 

criminal laws.” And the Hoffman Court found that, under the circumstances of the investigation 

underway, answers to the questions posed could have disclosed that the witness was “engaged in 

. . . proscribed activity” or “forged links in a chain of facts imperiling petitioner with conviction 

of a federal crime.” Id. at 481, 487. 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 11 of 27
7

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Similarly, in Simpson v. United States, 355 U.S. 7 (1957), the Solicitor General confessed 

error, and the Supreme Court summarily reversed a conviction for contempt when a witness 

refused to answer on Fifth Amendment grounds such seemingly innocuous queries as “would 

you please state your residence[,]” “[w]ould you give ... a brief resume of your educational 

background[,]” “did you ever go to high school[,]” and “[w]ere you ever in the armed forces of 

the United States?” Simpson v. United States, 241 F.2d 222, 223 (9th Cir.), rev’d 355 U.S. 7 

(1957).

Likewise, in United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988), the court 

found that a man crossing the border had a Fifth Amendment right not to reveal his true name, as 

that information would have permitted border patrol agents to discover his prior illegal entry 

convictions, and would thereby have provided a link in a chain of evidence that would help 

prove that he was violating the law in trying to enter the country again. Id. at 1227.

In Maffie, the First Circuit found error where the district court had required a witness to 

answer, among other things, questions about his occupation and about whether he knew 

particular people—as the answers to those questions might have helped link the witness to 

criminal activities. 209 F.2d at 231-32. And in Haught v. City of Anderson, No. 2:11-CV-1653-

JAM-CMK, 2015 U.S. Dist. LEXIS 127823 (E.D. Cal. Sept. 23, 2015), the court held that a 

witness, a police officer, need not answer questions at a deposition in a civil case seeking to hold 

a city liable for an alleged rape by another police officer of a woman in custody. The court held 

that the witness, who had allegedly transferred custody of the woman to the other officer at fault, 

properly invoked the Fifth Amendment in response to questions about whether he had in fact 

authorized the transfer of the woman and questions about the department’s policy for 

determining who may authorize such a transfer. Id. at *4-5, 10-11.

Here, as demonstrated below, Waymo’s requests seek materials that, if they exist at all, 

would either tend to directly incriminate Mr. Levandowski, or alternatively establish a link in a 

chain of evidence that could prove useful to the government in building a prosecution against 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 12 of 27
8

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Mr. Levandowski. Mr. Levandowski is privileged under the Fifth Amendment to refuse to 

disclose either type of information. 

C. The Fifth Amendment Protects an Individual from Being Forced to Produce 

Records if Her “Act of Production” Would Implicitly Communicate 

Incriminating Information

As Judge Alsup recognized, it is “uncontroversial” that an individual may invoke the 

Fifth Amendment privilege in responding to a request for the production of documents. Dkt. No. 

202 at 6. Even when the contents of a pre-existing document are themselves not privileged, the 

act of producing the document may implicate the Fifth Amendment privilege:

The act of producing evidence in response to a subpoena . . . has communicative 

aspects of its own, wholly aside from the contents of the papers produced. 

Compliance with the subpoena tacitly concedes the existence of the papers 

demanded and their possession or control by the [subpoenaed witness]. It also 

would indicate the [witness]’s belief that the papers are those described in the 

subpoena.

Fisher, 425 U.S. at 410; see also Hubbell, 530 U.S. at 32-36 (holding that, in response to a 

subpoena for documents, a subpoenaed witness may refuse to produce because “the act of 

production itself may implicitly communicate statements of fact,” such as admissions that “the 

papers existed, were in the [witness’s] possession or control, and were authentic”); United States 

v. Doe, 465 U.S. 605, 612 (1984) (“Although the contents of a document may not be privileged, 

the act of producing the document may be.”). In short, “[b]y producing documents in 

compliance with a subpoena, the witness admits that the documents exist, are in his possession or 

control, and are authentic.” Doe v. United States (In re Grand Jury Subpoena), 383 F.3d 905, 

909 (9th Cir. 2004). She also implicitly admits the “location” of the documents. Fisher, 425 

U.S. at 411; see also Hubbell, 530 U.S. at 45; United States v. Ponds, 454 F.3d 313, 323-24 

(D.C. Cir. 2006). All of “[t]hese types of admissions implicitly communicate statements of fact 

that may lead to incriminating evidence.” In re Grand Jury Subpoena, 383 F.3d at 909.

D. The Breadth of a Discovery Request Contributes to a Finding that the Act of 

Production Constitutes Compelled Incrimination

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 13 of 27
9

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Further, the breadth of a records request is often an important factor in determining 

whether producing records in response to the request amounts to implicit testimonial 

incrimination. Broad requests will more likely violate the Fifth Amendment privilege because 

they require a respondent to exercise her own discretion in reviewing sometimes voluminous 

records and deciding what is or is not responsive to the particular request, implicit testimony that 

goes beyond mere confirmation of an item’s existence or possession. Courts thus recognize that 

a discovery request’s “broad language contributes to a finding that the response . . . may be 

testimonial.” In re Grand Jury Subpoena, 383 F.3d at 911; see also Hubbell, 530 U.S. at 41-42 

(“Given the breadth of the description of the 11 categories of documents called for by the 

subpoena, the collection and production of the materials demanded was tantamount to 

answering a series of interrogatories asking a witness to disclose the existence and location of 

particular documents fitting certain broad descriptions . . . . [I]t is undeniable that providing a 

catalog of existing documents fitting within any of the 11 broadly worded subpoena categories 

could provide a prosecutor with a ‘lead to incriminating evidence,’ or ‘a link in the chain of 

evidence needed to prosecute.’”) (emphasis added). In In re Grand Jury Subpoena, the Ninth 

Circuit followed this central teaching in Hubbell and relied in part on the breadth of the records 

request at issue to find that the production of records would be testimonial:

The breadth of the subpoena in this case far exceeded the government’s 

knowledge about the actual documents that Doe created or possessed during his 

former employment and that he retained after he terminated his employment. The 

government probably could identify with sufficient particularity the existence of 

[certain] e-mails . . . . The government, however, failed to draft the subpoena 

narrowly to identify the documents that it could establish with reasonable 

particularity. Thus, on the record before us, the subpoena’s breadth far exceeded 

the reasonably particular knowledge that the government actually possessed when 

it served the subpoena on Doe.

383 F.3d at 910-11; see also United States v. Doe, 465 U.S. 605, 614 n.12 (1984) (quoting the 

court of appeals for the proposition that “[t]he most plausible inference to be drawn from the 

broad-sweeping subpoenas is that the Government, unable to prove that the subpoenaed 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 14 of 27
10

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

documents exist . . . is attempting to compensate for its lack of knowledge by requiring the 

appellee to become, in effect, the primary informant against himself”); In re Grand Jury 

Proceedings, Subpoenas for Documents, 41 F.3d 377, 380 (8th Cir. 1994) (“The broader, more 

general, and subjective the language of the subpoena, the more likely compliance with the 

subpoena would be testimonial.”); United States v. Fox, 721 F.2d 32, 38 (2d Cir. 1983) (“The 

inference we draw from this broad-sweeping summons is that the government is attempting to 

compensate for its lack of knowledge by requiring [the witness] to become the primary informant 

against himself.”). As discussed in Part V, infra, the broad requests in this case violate the Fifth 

Amendment in the same way as the requests in Hubbell, In re Grand Jury Proceedings, and the 

other above-cited cases.

E. Mr. Levandowski’s Fifth Amendment Rights Extend to Any Materials He 

Provided As Part of the Common-Interest Privileged Due Diligence Review

In responding to Waymo’s subpoena, Mr. Levandowski has interpreted the document 

requests as covering materials (if any exist) that Mr. Levandowski may have provided to Stroz 

Friedberg under a common interest joint defense agreement.

4

 Such materials would remain Mr. 

Levandowski’s property, are within his constructive possession and control, and are protected 

from disclosure by the same Fifth Amendment principles discussed throughout this brief. 

In particular, the Fifth Amendment’s protection against the compelled disclosure of 

records “extends to prevent an individual’s attorney from being compelled to produce documents 

if that production would violate the individual’s Fifth Amendment rights.” United States v. 

Sideman & Bancroft, LLP, 704 F.3d 1197, 1201 (9th Cir. 2013). 

In Fisher [ ], the Supreme Court explained that where an individual transfers 

documents to his or her attorneys to obtain legal assistance . . . , those documents, 

‘if unobtainable by summons from the client, are unobtainable by summons 

directed to the attorney by reason of the attorney-client privilege.’ Accordingly, 

[the attorney] does not have to produce the . . . records if doing so violates [the 

individual]’s Fifth Amendment rights.

 

4 The parties are separately litigating a subpoena issued by Waymo to Stroz itself. That litigation raises 

some of the same issues as the dispute discussed in this brief.

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 15 of 27
11

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Id. at 1201-02 (quoting Fisher, 425 U.S. at 405; citation omitted); see also In re Katz, 623 F.2d 

at 126 (describing the two questions to be addressed under Fisher: “(1) Would the documents in 

issue be privileged under the fifth amendment had they remained in the possession of [the client] 

and had the subpoena been directed to him? [and] (2) Are they protected by the attorney-client 

privilege while in the possession of [the attorney]?”); Dkt. 202 at 8 (Judge Alsup explaining that 

“the attorney-client privilege immunizes a lawyer against compelled production if two 

requirements are met. First, the client must be privileged against production of the document in 

question, ‘either as a party at common law’ or under the Fifth Amendment. Second, the client 

must have transferred the document in question to the attorney ‘for the purpose of obtaining legal 

advice.’” (emphasis omitted; quoting Fisher, 425 U.S. at 404-05)).

The same result must obtain when an individual transfers records pursuant to a common

interest agreement, as common interest or joint-defense agreements are “an extension of the 

attorney-client privilege.” United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000). “A joint 

defense agreement establishes an implied attorney-client relationship” between individuals and 

the attorneys of other parties to the agreement. Id. Thus, when an individual is privileged 

against production of a record pursuant to the Fifth Amendment, and transfers that record as part 

of a common interest communication for the purpose of obtaining legal advice, under the 

reasoning of Fisher, the possessor of the record must be immunized from compelled disclosure 

of the record.

Previous briefing established that Mr. Levandowski joined Uber and others in a valid 

common interest agreement. See Dkts. 369, 370, 372, 374, 375, 376, 378, 379, 380, 381, 383, 

384; see also Henke, 222 F.3d at 637; Holmes v. Collection Bureau of Am., Ltd., No. 09-02540-

WHA, 2010 U.S. Dist. LEXIS 4253 at *5-6 (N.D. Cal. Jan. 8, 2010); United States v. Bergonzi, 

216 F.R.D. 487, 495 (N.D. Cal. 2003). Stroz Friedberg was retained by members of the common 

interest group, and any materials it obtained from Mr. Levandowski were reviewed in order to 

facilitate the attorneys’ provision of legal advice to the various parties to the agreement. See

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 16 of 27
12

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dkts. 369, 370, 372, 374, 375, 376, 378, 379, 380, 381, 383, 384.5 Accordingly, Mr. 

Levandowski’s communication or production of any potentially incriminating records for review 

by Stroz Friedberg—if any such production occurred—was privileged. See United States v. 

Christensen, 828 F.3d 763, 802 (9th Cir. 2016); Teleglobe Communs. Corp. v. BCE, Inc. (In re 

Teleglobe Communs. Corp.), 493 F.3d 345, 359 (3rd Cir. 2007); United States v. Kovel, 296 F.2d 

918, 922 (2d Cir. 1961); In re CV Therapeutics, Inc. Sec. Litig., No. C-03-3709 SI (EMC), 2006 

U.S. Dist. LEXIS 41568 at *18-20 (N.D. Cal. Jun 16, 2006).

Thus, as to the first prong of the Fisher/Katz inquiry, this brief and the accompanying in 

camera submissions establish that Mr. Levandowski is himself privileged against production of 

any responsive records in question. And then, as to the second prong, because he transferred 

responsive documents (if any) for the purpose of obtaining legal advice, they remain privileged 

against compelled disclosure under the Fifth Amendment, as extended through the attorneyclient and common interest privilege. 

III. THE “FOREGONE CONCLUSION” INQUIRY FOCUSES ON WHAT 

INFORMATION IS ALREADY KNOWN TO THE GOVERNMENT

The Fifth Amendment act-of-production privilege can only be overcome in cases in 

which the “existence and location” of records under subpoena are a “foregone conclusion” and 

the witness “adds little or nothing to the sum total of the Government’s information by 

conceding that he in fact has the [documents]”; in such cases, no Fifth Amendment right is 

implicated because the “question is not of testimony but of surrender.” Fisher, 425 U.S. at 411 

(quoting In re Harris, 221 U.S. 274, 279 (1911)); see also Hubbell, 530 U.S. at 45; Bright, 596 

F.3d at 692; In re Grand Jury Subpoena, 383 F.3d at 910. 

When the government seeks records from a witness whose Fifth Amendment privilege is 

implicated by the circumstances of a case, the government cannot compel production unless it 

 

5 The parties are about to brief this issue more extensively for the Court. Further briefing concerning 

Waymo’s subpoena to Stroz Friedberg, which raises some of these same legal issues, will be filed next 

week.

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 17 of 27
13

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

can first establish that “the documents’ existence, the documents’ authenticity and respondent’s 

possession or control of the documents” is already known to a “foregone conclusion.” Bright, 

596 F.3d at 692 (citation omitted). And notably, “[t]he government bears the burden of proof 

and must have had the requisite knowledge before issuing the summons or subpoena.” Id. 

(emphasis added); see also In re Grand Jury Subpoena, 383 F.3d at 911 (“It is the quantum of 

information possessed by the government before it issues the relevant subpoena that is central to 

the foregone conclusion inquiry.” (quotation marks omitted, emphasis added)). Put another way, 

“the government is required . . . to establish the existence of the documents sought and [the 

witness]’s possession of them with ‘reasonable particularity’ before the existence and possession 

of the documents could be considered a foregone conclusion and production therefore would not 

be testimonial.” In re Grand Jury Subpoena, 383 F.3d at 910 (quoting Hubbell, 530 U.S. at 44). 

Similarly, “[t]he authenticity prong of the foregone conclusion doctrine requires the 

government to establish that it can independently verify that the compelled documents ‘are in 

fact what they purport to be.’” Id. at 912 (quoting United States v. Stone, 976 F.2d 909, 911 (4th 

Cir. 1992)). “Independent verification not only requires the government to show that the 

documents sought to be compelled would be admissible independent of the witness’ production 

of them, but also inquires into whether the government is compelling the witness to use his 

discretion in selecting and assembling the responsive documents, and thereby tacitly providing 

identifying information that is necessary to the government’s authentication of the subpoenaed 

documents.” Id.

This is a civil case, of course, and the government is not a litigant before this Court. But 

the “foregone conclusion” inquiry has the same focus here as it would in a criminal case. In 

deciding whether compelled production of records might be incriminating to Mr. Levandowski, 

the question is whether the inherent testimonial aspects of production would provide the 

government with new or additional information about the existence, authenticity, possession or 

location of records that it did not otherwise have at the time the subpoena was issued. See GE v. 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 18 of 27
14

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Liang, No. CV 13-08670 DDP (VBKx), 2014 U.S. Dist. LEXIS 36243 at *13-15 (C.D. Cal. Mar. 

19, 2014); eBay, Inc. v. Digital Point Solutions, Inc., No. C 08-4052 JF (PVT), 2010 U.S. Dist. 

LEXIS 7997 at *21-22 (N.D. Cal. Jan. 12, 2010); see also Henry v. Sneiders, 490 F.2d 315, 317 

(9th Cir. 1974).

Undersigned counsel is not aware of any active government investigation into the matters 

at issue in this case (although, as discussed, Judge Alsup has referred the case to the United 

States Attorney’s Office for investigation). Thus, at this stage, one can only assume that 

essentially any revelation by Mr. Levandowski about the existence, authenticity, possession, or 

location of records would add to the government’s quantum of information. And to the extent 

any such documents have the potential to be incriminating—either because they are directly 

inculpatory or because they could provide a prosecutor with a clue or an indirect link in a chain 

to other inculpatory information—Mr. Levandowski is privileged under the Fifth Amendment to 

refuse production.

IV. MR. LEVANDOWSKI SHOULD NOT BE FORCED TO PUBLICLY REVEAL 

THE VERY INFORMATION THE FIFTH AMENDMENT PROTECTS HIM 

FROM DISCLOSING

Waymo has consistently asserted that Mr. Levandowski should be required to produce 

specific information about the records, if any, over which he claims a Fifth Amendment 

privilege. That requirement, however, would turn the Fifth Amendment inquiry on its head. 

The information that is protected by Mr. Levandowski’s Fifth Amendment privilege is 

information concerning the existence, possession, location and authenticity of any records over 

which the privilege is claimed. See Parts II & III, supra. Mr. Levandowski cannot produce to 

Waymo a traditional privilege log or otherwise divulge the identity of any records over which he 

asserts the privilege because even revealing the existence (or possession) of any such records 

would disclose the information that is expressly protected by the privilege itself. Mr. 

Levandowski should not be compelled to “to prove guilt to avoid admitting it.” Marchetti v. 

United States, 390 U.S. 39, 50 (1968) (quoting United States v. Kahriger, 345 U.S. 22, 34 (1953)

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 19 of 27
15

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(Jackson, J., concurring)). 

For that very reason, courts have refused to require a litigant who raises a Fifth 

Amendment privilege against compelled production of records to produce a detailed privilege 

log. See SEC v. Chin, No. 12-cv-01336-PAB-BNB, 2012 U.S. Dist. LEXIS 182252 at *26 (D. 

Colo. Nov. 29, 2012) (“requiring [respondents] to provide a detailed privilege log of the 

documents claimed to be subject to the protections of the Fifth Amendment . . . is testimonial, 

could be incriminating, and falls within the protection against self-incrimination”); In re Syncor 

ERISA Litig., 229 F.R.D. 636, 649 (C.D. Cal. 2005) (rejecting a motion to compel a privilege log 

because “requiring defendant [ ] to produce a privilege log listing responsive documents may 

incriminate defendant [ ] by forcing him to ‘admit that the documents exist, are in his possession 

or control, and are authentic’”). 

Likewise, courts applying the Fifth Amendment privilege reject discovery requests in 

their entirety when they require production of broad categories of documents. As emphasized by 

the Supreme Court in Hubbell, a broad discovery request is akin to requiring the respondent to 

answer detailed interrogatory requests or a series or pointed oral questions, an outcome that can 

never be compelled when such answers would tend to incriminate the respondent. See Hubbell, 

530 U.S. at 41-42; United States v. Doe, 465 U.S. at 614 n.12; In re Grand Jury Subpoena, 383 

F.3d at 910-11; In re Grand Jury Proceedings, Subpoenas for Documents, 41 F.3d at 380; Fox, 

721 F.2d at 38. When the courts consider broad discovery demands in the context of a Fifth 

Amendment act of production assertion, they do not require the responding litigant to pick 

through his documents and prove how the production of each item would tend to incriminate. 

The courts, instead, simply quash the offending request. 

For instance, in In re Grand Jury Subpoena, the Ninth Circuit found that the broad 

requests at issue were testimonial in nature, but it remanded the case for a determination whether 

the production of records “would be incriminating.” 383 F.3d at 913. The court ordered that 

“[i]f the testimonial production would be incriminating, the motion to quash should be granted 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 20 of 27
16

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

unless the government secures an immunity order . . . .” Id.; see also In re Grand Jury 

Proceedings, Subpoenas for Documents, 41 F.3d at 381 (“We conclude that the act of producing 

at least some of the subpoenaed documents would involve compelled testimonial selfincrimination in violation of the [respondents’] fifth amendment privilege. The government 

cannot enforce the subpoenas without granting use immunity pursuant to 18 U.S.C. §§ 6002, 

6003 or significantly narrowing the scope of the subpoenas.”). 

To similar effect is SEC v. Forster, 147 F. Supp. 3d 223 (S.D.N.Y. 2015), a case in which 

a civil defendant in an SEC matter invoked his Fifth Amendment privilege against compelled 

production, and the SEC argued that the defendant’s assertion of privilege was “impermissibly 

broad” and that the respondent “must explain the privilege’s application to each withheld 

document.” Id. at 228. The court disagreed, however, explaining:

[A] document-by-document analysis by [the respondent] would not be useful to 

determining whether [the respondent] has validly asserted the act-of-production 

privilege, and the SEC has not explained how such a proffer would even work. 

The act-of-production privilege does not focus on the content of the individual 

documents because it is not the content of the documents — which was not 

compelled — but the act of producing them that might trigger the act-ofproduction protection under the Fifth Amendment.

Id.

As discussed in more detail in Part V, infra, Waymo’s requests in this matter sweep

broadly, and they are focused explicitly on trying to establish that Mr. Levandowski intentionally 

stole Google files or other data. The subpoena seeks materials that (a) either constitute 

misappropriated information or could help demonstrate that Mr. Levandowski wrongfully 

possessed such materials, as well as (2) communications with Uber that might help establish his 

allegedly improper intent or motive, or at the very least guide a prosecutor on how to gather 

further evidence about alleged misappropriation or other purported misconduct. Further, given 

the breadth of the requests, as in Hubbell, “the collection and production of the materials 

demanded [would be] tantamount to answering a series of interrogatories asking [Mr. 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 21 of 27
17

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Levandowski] to disclose the existence and location of particular” incriminating materials and—

as the process of generating this filing has amply demonstrated—it would “unquestionably [be] 

necessary for [Mr. Levandowski] to make extensive use of ‘the contents of his own mind’ in 

identifying” any records responsive to Waymo’s requests. 530 U.S. at 42-43 (quoting Curcio v. 

United States, 354 U.S. 118, 128 (1957)). 

The lesson of the precedents discussed above is that this Court must approach with 

extreme caution broad requests like those that appear in Waymo’s subpoena. Unless Waymo can 

show that its subpoena seeks only particular materials about which the government was already 

aware—with enough particularity to render it a “foregone conclusion” such that the demand is 

akin to mere surrender—the subpoena requests should be quashed in their entirety. See, e.g., In 

re Grand Jury Subpoena, 383 F.3d at 913; In re Grand Jury Proceedings, Subpoenas for 

Documents, 41 F.3d at 381; Forster, 147 F. Supp. 3d at 229, 231. 

But here, the record falls well short of even the showings found deficient in Hubbell or In 

re Grand Jury Subpoena. There has been no showing that the government knows any of the

information Mr. Levandowski would be compelled to provide about the existence, possession, 

location, or identity of any incriminating documents that may exist—or indeed that the 

government knows any particular information at all about this case. See Part III, supra. To 

paraphrase the Supreme Court in Fisher, the broad and incriminating requests in this case, and 

the absence of any showing of foregone conclusion, raise the “question of testimony”—not 

“surrender.” Fisher, 425 U.S. at 411 (finding no Fifth Amendment violation in compelled 

production when the “question is not of testimony but of surrender”). On this basis alone, the 

requests should be quashed.

We recognize, however, that Judge Alsup has required Mr. Levandowski to make an in 

camera submission concerning the contours of his Fifth Amendment privilege, and we hereby 

comply with his order. See Dkt. 230 (4/12/2017 Tx) at 77-79 (Judge Alsup’s ruling that, in order 

to assert his Fifth Amendment privilege against compelled production of records, Mr. 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 22 of 27
18

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Levandowski will “have to give me a[n in camera] privilege log . . . . I’m not ruling against the 

ultimate assertion of the privilege, but I am saying that you’ve got to do more than just say in 

court ‘Fifth Amendment.’ You have to do a privilege log . . . . I’m not ruling against you yet on 

that, on the ultimate answer, but I have to have it.”). 

It is well-established that an in camera submission of information does not itself destroy 

the claimed privilege. Bright, 596 F.3d at 691 (citing United States v. Zolin, 491 U.S. 554, 569 

(1989)). But the Court should not require Mr. Levandowski to make any further public 

disclosures of information, since doing so would destroy the very privilege he is entitled to 

protect. 

Finally, we ask the Court to take care, in the course of governing the ongoing litigation, 

to respect Mr. Levandowski’s constitutional right to avoid revealing the existence, possession,

location, and authenticity of potentially incriminating records. Any public reference to, or 

disclosure of, the information set forth in Mr. Levandowski’s in camera submission would 

impair Mr. Levandowski’s Fifth Amendment rights and subject any eventual state or federal 

prosecutors to the “the affirmative duty [of having] to prove that the evidence it proposes to use 

is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. 

United States, 406 U.S. 441, 460-61 (1972).

V. WAYMO’S REQUESTS CALL FOR POTENTIALLY INCRIMINATING 

RESPONSES AND THUS VIOLATE MR. LEVANDOWSKI’S FIFTH 

AMENDMENT RIGHTS UNDER HUBBELL

Each of Waymo’s document requests broadly seek records whose production—if they 

exist—could tend to incriminate Mr. Levandowski under the legal principles discussed above. 

As such, the Court should deny Waymo’s motion to compel Mr. Levandowski to produce 

responsive records.

In this section, which will be filed in the public docket, we describe why the responses to 

Waymo’s requests could tend to incriminate Mr. Levandowski. In the section below, which will 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 23 of 27
19

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

be filed solely in camera, we will describe any responsive materials that may exist, and provide

further relevant information to the Court.

A. Request 1

In its Request for Production No. 1, Waymo seeks:

The Misappropriated Materials, including any media that 

contains or contained the Misappropriated Materials, any 

documents derived from, or reflecting the substance of, the 

Misappropriated Materials outside of Waymo, and any 

documents reflecting any meetings or discussions regarding the 

substance of the Misappropriated Materials outside of Waymo.

Dkt. 212-1 (Waymo subpoena to Anthony Levandowski, April 9, 2017) at 7 (emphasis added). 

Waymo defines “Misappropriated Materials” as follows:

“MISAPPROPRIATED MATERIALS” refers to all GOOGLE and 

WAYMO DOCUMENTS and materials, whether digital or physical, 

and regardless of the manner stored, for which LEVANDOWSKI 

retained possession, without authorization of either GOOGLE or 

WAYMO, after LEVANDOWSKI’s employment with 

GOOGLE/WAYMO ended. Without limitation, MISAPPROPRIATED 

MATERIALS includes at least: (i) each of the more than 14,000 digital 

files downloaded by LEVANDOWSKI on or about December 11, 2015 

from the SVN repository; (ii) each file copied by LEVANDOWSKI from 

his GOOGLE laptop to an RDF5 USB 3.0 card reader on or about 

December 14, 2015; (iii) each of the five files titled: PBR Intensity 

Calibration; Pbr Extrinsic Calibration; Tx and Rx tuning Instructions; GBr 

Assembly Flowchart SOP; and TBR Testing Station that were exported by 

LEVANDOWSKI from Google Drive to a personal device on or about 

January 4, 2016; and (iv) the file titled: Chauffer TL weekly updates – Q4 

2015 exported by LEVANDOWSKI from Google Drive to a personal 

device on or about January 11, 2016.

Id. at p. 3 (emphasis added).

This request plainly seeks records that are inherently incriminating. At its very essence, 

the request says: “give us back the stuff we think you stole.” To the extent that Mr. 

Levandowski still possesses any Google or Waymo records he was not authorized to retain, his 

act of producing such documents now would obviously tend to inculpate Mr. Levandowski in 

criminal activity, as it would tacitly admit that he did, in fact, take or retain materials without 

authorization. Glanzer, 232 F.3d at 1263. 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 24 of 27
20

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plainly, any production of records that constitute actual trade secrets would directly 

incriminate Mr. Levandowski. But even as to “Misappropriated Materials” that are not trade 

secrets, it takes little effort to imagine how a prosecutor might use this sort of evidence to 

establish intent, as Rule 404(b) evidence, or in cross-examining a defendant on the witness stand. 

If nothing else, compelled production of Google information that Mr. Levandowski kept after 

leaving Google would “give a prosecutor a starting point from which he might proceed step by 

step to link the witness with criminal offenses.” J.C. Penney Life Ins. Co., 1986 U.S. Dist. 

LEXIS 16072 at *9; see also Glanzer, 232 F.3d at 1263 (stating that the “privilege against selfincrimination . . . covers those circumstances where the disclosures would not be directly 

incriminating, but could provide an indirect link to incriminating evidence”); Part II.B, supra. 

Further, as to materials or devices that previously “contained . . . Misappropriated Materials,” 

Dkt. 212-1 at 7, these items could contain metadata or electronic “footprints” that could help a 

prosecutor prove that alleged misappropriations had occurred in the past. 

As noted above, there is zero evidence that the government is already aware of any of this 

information. As a result, the Court is not in a position to hold that it is a “foregone conclusion” 

that, as of the date of Waymo’s subpoena, the government already knew about each of the 

particular records or items in question. See In re Grand Jury Subpoena, 383 F.3d at 911; GE, 

2014 U.S. Dist. LEXIS 36243 at *13-15; eBay, 2010 U.S. Dist. LEXIS 7997 at *21-22; see also 

Henry, 490 F.2d at 317; Part III, supra.

In sum, given the inherently incriminating nature of Waymo’s Request No. 1—

essentially, “give us back all the information we allege you stole”—there are no responsive 

documents that Mr. Levandowski can produce in response to Waymo’s Request No. 1 without 

impairing his privilege against self-incrimination. To the extent any documents exist, they are 

protected from disclosure by Mr. Levandowski’s assertion of his Fifth Amendment rights against 

self-incrimination. By the same token, any documents that do not qualify as “Misappropriated 

Materials” are not responsive to Waymo’s request, and therefore do not need to be produced. 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 25 of 27
21

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A number of courts have held that once an individual establishes that production of 

requested documents would constitute tacit testimony that could be used against her, she need 

not make an additional showing to substantiate her invocation of the Fifth Amendment. See, e.g, 

SEC v. Forster, 147 F. Supp. 3d 223 (S.D.N.Y. 2015); Part IV, supra. But in abundance of 

caution, given the Court’s directive on April 12, and its recent criticism of Mr. Levandowski’s 

earlier submissions, see Dkt. 501, in the in camera portion of this brief below Mr. Levandowski 

will provide further information about any materials that are potentially responsive to Waymo’s 

Request No. 1, and explain exactly why those materials are incriminating and should be 

protected from discovery, absent a grant of immunity coextensive with the protections afforded 

by 18 U.S.C. § 6002.

B. Request 3

In Request for Production No. 3, Waymo seeks: “All communications between [Mr. 

Levandowski] and Uber between January 2015 and August 2016.” Waymo subpoena, April 9, 

2017 (Dkt. 212-1) at p. 7.

Mr. Levandowski has already produced to Waymo records that are (a) responsive to this 

request, and (b) raise no Fifth Amendment concerns. With respect to any other responsive 

communications between Mr. Levandowski and Uber, to the extent they exist, Mr. Levandowski 

has invoked his Fifth Amendment privilege against compelled production.

As previously discussed, at present the record contains no showing—or even 

suggestion—that the government knows anything at all about the facts of this matter. As a 

consequence, any disclosure of information about this case might “possibly” add to the 

government’s existing sum or quantum of evidence should it begin an investigation at some point 

in the future. See Glanzer, 232 F.3d at 1263; Part II.B, supra. 

Communications between Mr. Levandowski and Uber employees during the period in 

question plainly have the potential—fairly or unfairly—to incriminate Mr. Levandowski and 

provide context for an argument concerning his intent or preparations for the alleged 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 26 of 27
22

NON-PARTY ANTHONY LEVANDOWSKI’S SECOND SUPPLEMENT TO COURT-ORDERED SUBMISSION – PUBLIC 

VERSION

CASE NO. 3:17-cv-00939 WHA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

misappropriation. For example, even a facially benign email message that predates Mr. 

Levandowski joining Uber might suggest to a prosecutor which Uber employees to interview, or 

which materials to subpoena or request. Even purely innocuous information could give “a 

prosecutor a starting point from which he might proceed step by step to link the witness with 

criminal offenses”—providing, in effect, a court-ordered “assist” that the Fifth Amendment 

plainly forbids. J.C. Penney Life Ins. Co., 1986 U.S. Dist. LEXIS 16072 at *9; see also Glanzer, 

232 F.3d at 1263; Part II.B, supra. As there can be no suggestion on this record that it is a 

“foregone conclusion” that the government already possessed such leads, clues, and starting 

points, see GE, 2014 U.S. Dist. LEXIS 36243 at *13-15; eBay, 2010 U.S. Dist. LEXIS 7997 at 

*21-22; Part III, supra, the Fifth Amendment prohibits compelling Mr. Levandowski to produce 

the records in question.

Any communications responsive to Waymo’s Request No. 3 over which Mr. 

Levandowski asserts the Fifth Amendment privilege against compelled production are discussed 

below in the in camera portion of this brief. 

* * *

[REDACTED -- THE REMAINING PORTIONS OF THIS SUBMISSION HAVE BEEN 

FILED SOLELY IN THE IN CAMERA VERSION OF THE BRIEF]

Date: June 2, 2017 Respectfully submitted, 

/s/

Miles Ehrlich

Ismail Ramsey

Amy Craig

Ramsey & Ehrlich LLP

803 Hearst Avenue

Berkeley, CA 94710

Tel: (510) 548-3600

Fax: (510) 291-3060

miles@ramsey-ehrlich.com

izzy@ramsey-ehrlich.com

amy@ramsey-ehrlich.com

Counsel for Intervenor Anthony Levandowski 

Case 3:17-cv-00939-WHA Document 539 Filed 06/02/17 Page 27 of 27