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No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER 

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa J. 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,

v.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

CASE NO. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY 

LEVANDOWSKI’S MOTION FOR 

INTERVENTION UNDER RULE 24 AND 

MODIFICATION OF ORDER 

GRANTING IN PART AND DENYING IN 

PART PROVISIONAL RELIEF

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OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

TABLE OF CONTENTS

Page

INTRODUCTION..............................................................................................................................1

BACKGROUND................................................................................................................................2

ARGUMENT .....................................................................................................................................5

I. MR. LEVANDOWSKI FAILS TO MEET HIS BURDEN TO INTERVENE .....................5

A. There Is No Basis To Intervene as of Right. ..............................................................5

1. The Application Is Not Timely. .....................................................................6

2. Mr. Levandowski Cannot Justify Intervention With A “Significantly 

Protectable Interest.” ......................................................................................7

3. Denial of Intervention Will Not Impair Mr. Levandowski’s Ability 

to Protect His Interests. ..................................................................................9

4. Defendants Can Adequately Represent Mr. Levandowski’s Interests 

in Protecting his Alleged Privileges. ............................................................10

5. Equitable Considerations Weigh Against Intervention................................12

B. Levandowski’s Motion for Permissive Intervention Should Be Denied..................12

II. MR. LEVANDOWSKI’S MOTION TO MODIFY THE COURT’S ORDER 

SHOULD BE DENIED........................................................................................................13

A. The Court’s Order Does Not Implicate Mr. Levandowski’s Fifth 

Amendment Privilege...............................................................................................14

1. Any Adverse Employment Action By Uber Under The Court’s 

Order Would Not Amount To “State Action”..............................................15

2. The Threat Of Adverse Employment Action Does Not Effectively 

Compel Mr. Levandowski to Speak.............................................................19

3. To The Extent The Order Merely Requires The Production Of 

Documents, The Fifth Amendment Does Not Apply At All........................20

B. The Court’s Order Does Not Implicate Mr. Levandowski’s Other Privileges.........21

III. RESPONSES TO COURT ORDERED QUESTIONS........................................................23

1. When an employee steals and retains a competitor’s trade secrets, 

may the employer, upon learning of the theft, direct the employee to 

make it right with the competitor and to return all copies of the trade 

secrets to the competitor on pain of adverse employment action, up 

to and including termination? Yes, this happens all the time. Does 

the Fifth Amendment prevent such private action? No...............................23

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OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

2. In such circumstances, may a court order the employer to exercise 

the full scope of its private authority over the employee to cause the 

employee to return all copies of the stolen trade secrets? Yes. Does 

the Fifth Amendment bar such an order? No. .............................................23

3. Where an employer learns that its employee has stolen trade secrets 

from a competitor and fails to, on its own initiative, use the full 

scope of its private authority over the employee to return all copies 

of the trade secrets to their rightful owner, may the Court instruct the 

jury that it may consider such failure as a ratification by the 

employer of the theft? Yes. .........................................................................24

CONCLUSION ................................................................................................................................25

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-iii- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

TABLE OF AUTHORITIES

Page

CASES

Ajaxo Inc. v. E*Trade Grp., Inc.,

135 Cal.App.4th 21 (2005).................................................................................................. 24

Allen v. Bedolla,

787 F.3d 1218 (9th Cir. 2015)......................................................................................... 6, 12

Aptix Corp. v. Quickturn Design Sys., Inc.,

2000 WL 852813 (N.D. Cal. Jun. 14, 2000), vacated in part on other grounds ................ 25

Arakaki v. Cayetano,

324 F.3d 1078 (9th Cir. 2003)............................................................................................. 10

Armacell LLC v. Bostic,

205 N.C. App. 467 (2010)................................................................................................... 25

ATS Prods Inc. v. Ghiorso,

Case No. 3:10-cv-04880-BZ, Dkt. 271 (N.D. Cal. Jan. 27, 2012)...................................... 15

Baxter v. Palmigiano,

425 U.S. 308 (1976)...................................................................................................... 17, 19

Blum v. Yaretsky,

457 U.S. 991 (1982)............................................................................................................ 15

Braswell v. United States,

487 U.S. 99 (1988)................................................................................................................ 7

Brinks, Inc. v. City of New York,

717 F.2d 700 (2d Cir. 1983).......................................................................................... 18, 25

Contemporary Servs. Corp. v. Landmark Event Staffing Servs., Inc.,

--- Fed. Appx. ---, 2017 WL 393718 (9th Cir. Jan. 30, 2017)............................................. 24

Convertino v. United States DOJ,

674 F. Supp. 2d 97 (D.D.C. 2009) ...................................................................................... 13

Data General Corp. v. Gruman Systems Support Corp.,

825 F. Supp. 340 (D. Mass. 1993) ...................................................................................... 25

Dep’t of Fair Employment & Housing v. Lucent Techs. Inc.,

642 F.3d 728 (9th Cir. 2011)............................................................................................... 13

Donnelly v. Glickman,

159 F.3d 405 (9th Cir. 1988)............................................................................................... 13

Executive Risk Specialty Ins. Co. v. Rutter Hobbs and Davidoff, Inc.,

564 Fed. Appx. 887 (9th Cir. 2014).................................................................................... 12

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-iv- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

Garrity v. New Jersey,

385 U.S. 493 (1967)...................................................................................................... 14, 19

Gilman v. Marsh & McLennan Cos., Inc.,

826 F.3d 69 (2d Cir. 2016)........................................................................................... passim

Harris v. Lang Pharma Nutrition, Inc.,

No. MC 14-1154, 2015 WL 12832093 (C.D. Cal. May 22, 2015)..................................... 22

In re Grand Jury Subpoena,

274 F.3d 563 (1st Cir. 2001) ............................................................................................... 10

In re Grand Jury Matter,

735 F.2d 1330 (11th Cir. 1984)........................................................................................... 10

In re Katz,

623 F.2d 122 (2d Cir. 1980).................................................................................................. 8

In re Tableware Antitrust Litig.,

2007 WL 781960 (N.D. Cal. Mar. 13, 2007)...................................................................... 25

In re Weingarten,

492 Fed. Appx. 765 (9th Cir. 2012).................................................................................... 11

Johnson v. Hewlett-Packard Co.,

Case No. C09-3596 CRB (BZ), 2010 WL 4510345 (N.D. Cal. Nov. 1, 2010) .................. 22

Lefkowitz v. Cunningham,

431 U.S. 801 (1977)............................................................................................................ 14

Lynn v. Gateway Unified Sch. Dist.,

Case No. 2:10-cv-00981, 2011 WL 6260362 (E.D. Cal. Dec. 15, 2011)............................ 20

Minnesota v. Murphy,

465 U.S. 420 (1984)............................................................................................................ 14

Moore v. Gilead Sciences, Inc.,

2011 WL 5572975 (N.D. Cal. Nov. 16, 2011).................................................................... 21

Nidec Corp. v. Victor Co. of Japan,

249 F.R.D. 575 (N.D. Cal. 2007)........................................................................................ 22

Northwest Forest Resource Council v. Glickman,

82 F.3d 825 (9th Cir. 1996)................................................................................................... 7

People v. Lee,

3 Cal. App. 3d 514 (1970)................................................................................................... 21

Perry v. Proposition 8 Official Proponents,

587 F.3d 947 (9th Cir. 2009)........................................................................................... 6, 13

PMC, Inc. v. Kadisha,

78 Cal. App. 4th 1368 (2000).............................................................................................. 25

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-v- No. 3:17-cv-00939-WHA

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Pyro Spectaculars North, Inc. v. Souza,

861 F. Supp. 2d 1079 (E.D. Cal. 2012)............................................................................... 16

RAD Serv., Inc. v. Aetna Cas. & Sur. Co.,

808 F.2d 271 (3d Cir. 1986).......................................................................................... 18, 25

Sackman v. Liggett Grp.,

167 F.R.D. 6 (E.D.N.Y. 1996) ............................................................................................ 10

Saini v. Int’l Game Tech.,

434 F. Supp. 2d 913 (D. Nev. 2006) ................................................................................... 16

SEC v. Graystone Nash, Inc.,

25 F.3d 187 (3d Cir. 1994).................................................................................................. 17

Southern California Edison Co. v. Lynch,

307 F.3d 794 (9th Cir. 2002)............................................................................................... 12

Sutton v. Providence St. Joseph Med. Ctr.,

192 F.3d 826 (9th Cir. 1999)............................................................................................... 15

Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation,

392 U.S. 280 (1968)............................................................................................................ 14

United States ex rel. Sanney v. Montanye,

500 F.2d 411 (2d Cir. 1974).......................................................................................... 19, 20

United States v. Alisal Walter Corp.,

370 F.3d 915 (9th Cir. 2004)........................................................................................... 6, 12

United States v. Am. Telephone & Telegraph Co.,

642 F.2d 1285 (D.C. Cir. 1980) .......................................................................................... 10

United States v. California,

538 Fed. Appx. 759 (9th Cir. 2013)...................................................................................... 6

United States v. Edison,

No. CR 07-0074, 2008 WL 170660 (N.D. Cal. Jan. 17, 2008)........................................... 22

United States v. Goodpaster,

65 F. Supp. 3d 1016 (D. Or. 2014)................................................................................ 14, 23

United States v. Hubbell,

530 U.S. 27 (2000).............................................................................................................. 21

United States v. Solomon,

509 F.2d 863 (2d Cir. 1975)...................................................................................... 8, 16, 17

United States v. Stein,

541 F.3d 130 (2d Cir. 2008)................................................................................................ 17

STATUTES

18 USC § 1836 .......................................................................................................................... 15, 23

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-vi- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

Cal. Civ. Code § 2310 ..................................................................................................................... 24

Cal. Civ. Code § 3426.2 ............................................................................................................ 15, 24

Fed. R. Civ. P. 24 .............................................................................................................................. 5

OTHER AUTHORITIES

Restatement (Third) of the Law Governing Lawyers § 82 ............................................................. 22

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-1- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

Plaintiff Waymo LLC (“Waymo”) hereby opposes Non-Party Anthony Levandowski’s

Motion for Intervention and Modification of the Court’s May 11, 2017 Order Granting Provisional 

Relief (Dkt. 466) (the “Motion”).

INTRODUCTION

Mr. Levandowski stole 14,000 highly sensitive files immediately prior to departing 

Waymo so that he could use this information to compete with Waymo’s technology on behalf of 

his new employer Uber in the nascent self-driving vehicle market. Recognizing that Waymo had 

established a strong evidentiary record on this score, Judge Alsup granted in part Waymo’s 

Motion for Preliminary Injunction (Dkt. 433) and ordered Uber to take a number of remedial steps 

to ameliorate the potential for competitive harm to Waymo. Mr. Levandowski now seeks to 

undermine and delay implementation of that Order by asking to intervene for the purposes of 

raising a meritless constitutional challenge. 

If Mr. Levandowski believed that Waymo’s Motion for Preliminary Injunction was likely 

to implicate his constitutional rights, he should have intervened for this purpose long ago, as he 

has on various other limited issues throughout this case. His failure to do so not only confirms 

that the present Motion is purely a delay tactic, it also renders his request “untimely,” which is 

grounds enough to deny the proposed intervention. Mr. Levandowski also fails to articulate a 

protectable interest that would warrant intervention. Nothing in the Preliminary Injunction Order 

compels Mr. Levandowski to do anything. Rather, the Order merely requires Uber, a private 

employer, to exercise its corporate authority to ensure that Mr. Levandowski return the files he 

stole from Waymo so that they cannot be unfairly exploited by Uber. Mr. Levandowski also fails 

to explain how his intervention will place him in a better position to protect his purported interests,

particularly given his prior refusals to offer evidence in support of the asserted privileges. Finally, 

Mr. Levandowski fails to explain why his alleged interests are not already adequately represented 

by the existing parties to the case, including Defendants, who have every incentive to chip away at 

the Preliminary Injunction Order. Under these circumstances, the request for intervention, 

whether permissive or as of right, should be denied.

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OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

Even if intervention were permitted, Mr. Levandowski’s requested relief fails on the 

merits. On the current evidentiary record, the Court was well within its power to order Uber—a 

private employer—to take remedial steps towards minimizing the threat of irreparable competitive 

injury to Waymo. Mr. Levandowski’s argument, that the Court’s Order somehow transforms 

Uber’s private employment decisions into unconstitutional “state action,” is not supported by any 

authority, and is in fact contrary to the prevailing law. The Court should deny Mr. Levandowski’s 

proposed modifications, so as to not further delay compliance with the Preliminary Injunction 

Order.

BACKGROUND

Mr. Levandowski has repeatedly sought, without justification, to intervene to assert 

baseless claims of privilege to create delay and obstruct discovery. His latest Motion, seeking to 

postpone Uber’s implementation of appropriate, Court-ordered remedial provisions, is simply the 

latest attempt to improperly leverage Mr. Levandowski’s constitutional rights to permit Uber to 

avoid compliance with this Court’s orders and discovery obligations.

Waymo filed the original complaint on February 23rd, followed shortly thereafter by 

motions for preliminary injunction and expedited discovery on March 10th. In the motion for 

preliminary injunction, Waymo repeatedly referenced Mr. Levandowski’s theft of its confidential 

material (e.g., Dkt. 24 at 1, 7-9), emphasized the risk that Waymo would suffer irreparable

competitive harm absent court intervention (id. at 20-23), and sought to enjoin Defendants “from 

accessing, using, imitating, copying, disclosing, or making available to any person or entity 

Waymo’s Asserted Trade Secrets, including but not limited to the Asserted Trade Secrets as 

embodied in LiDAR systems” (id. at 2). 

Mr. Levandowski understood that the preliminary injunction and expedited discovery 

proceedings could potentially impact his claims to various privileges. Indeed, as this Court noted 

at the first case management conference, Mr. Levandowski’s need for separate counsel in this 

matter was evident from the start. (3/16/2017 Hr’g Tr. at 16:23-17:3.) Yet Mr. Levandowski 

never sought to intervene for all purposes, but instead sought to do so in piecemeal fashion to 

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assert his Fifth Amendment privilege improperly—over and over—in order to shield Uber from 

compliance with this Court’s orders, causing significant delays and obstructing Waymo’s access to 

key information.

On March 29th, Uber’s counsel (not even Mr. Levandowski’s counsel) requested a “short 

in-chambers conference” to discuss a “confidential matter.” (Dkt. 122.) At the hearing, 

Mr. Levandowski, represented by separate counsel, “broadly asserted his Fifth Amendment 

privilege against self-incrimination, seeking to prohibit defendants from revealing certain 

information about the due diligence report—even on a privilege log.” (Dkt. 433 at 6.) 

Mr. Levandowski then intervened on April 5th for the limited purpose of opposing the compelled 

disclosure of the identity of a third-party forensic investigator who conducted “due diligence” 

relating to Uber’s acquisition of Mr. Levandowski’s company Otto. (Dkt. 151.) The Court denied 

Mr. Levandowski’s request (Dkt. 202), and the Federal Circuit denied his appeal (Case No. 17-

1904 Dkt. 9). 

On April 9th, Waymo subpoenaed Mr. Levandowski for a deposition and documents. 

(Dkt. 244.) Abusing his non-party status, Mr. Levandowski initially refused to produce 

documents, but the Court ruled that the subpoena was enforceable, that Mr. Levandowski must 

appear for deposition, and that he must produce documents in response to certain of Waymo’s 

requests by April 14th. (4/12/2017 Hr’g Tr. at 70:20-22, 72:2-4, 72:5-11.) Subsequently, at his 

deposition, Mr. Levandowski asserted the Fifth Amendment in response to virtually every 

substantive question asked of him. (See generally Dkt. 366-8.) Additionally, Mr. Levandowski 

violated the Court’s order that he timely produce documents, delaying his first of several 

productions until April 24th. Mr. Levandowski then failed to complete his production until May 

11th, after the hearing on Waymo’s Motion for Preliminary Injunction and a full month after the 

deadline imposed by the Court. In addition, Mr. Levandowski failed to disclose information to 

Waymo sufficient to establish his assertion of the Fifth Amendment privilege. (Dkt. 501 at 2.) 

When Waymo sought to compel production of certain “due diligence” materials from 

Defendants, Mr. Levandowski once again sought limited intervention to oppose the request (Dkt. 

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371), joined in Defendants’ opposition (Dkt. 384), and made a motion to file an in camera

declaration with the Court in support of Defendants’ opposition (Dkt. 382).

On May 15th—after a months-long expedited discovery process and lengthy briefing 

schedule (to which Mr. Levandowski never attempted to intervene)—the Court entered its Order 

granting in part Waymo’s request for provisional relief. (Dkt. 433.) The Court found that 

“Waymo has made a strong showing that Levandowski absconded with over 14,000 files from 

Waymo, evidently to have them available to consult on behalf of Otto and Uber.” (Id. at 7.) The 

Court also found it likely that “Uber knew or should have known” of the theft “when it brought 

[Mr. Levandowski] on board.” (Id. at 12.) Although the Court denied (without prejudice) 

Waymo’s request that it enjoin Uber’s use of Waymo’s trade secrets, it did order that Uber take 

certain remedial steps towards minimizing the risk that the 14,000 stolen files (“downloaded 

materials”) would continue to be exploited between now and the October 2nd trial date in this 

matter. (Id. at 22-26.) 

As pertinent here, the Court ordered that Uber “immediately and in writing exercise the

full extent of their corporate, employment, contractual, and other authority to (a) prevent Anthony 

Levandowski and all other officers, directors, employees, and agents of defendants from

consulting, copying, or otherwise using the downloaded materials; and (b) cause them to return the 

downloaded materials and all copies, excerpts, and summaries thereof to Waymo (or the Court) by 

MAY 31 AT NOON.” (Id. at 23 ¶ 2.) The Court further ordered that Uber “conduct a thorough 

investigation and provide a detailed accounting under oath setting forth every person,” “including 

Levandowski and his separate counsel,” “who has seen or heard any part of any downloaded

materials, what they saw or heard, when they saw or heard it, and for what purpose.” (Id. at 24 

¶ 4.)

On May 16th, Uber’s legal department apparently sent Mr. Levandowski a letter, a copy of 

which Waymo only received when it was attached as Exhibit A to the Motion. In the letter—

which was obviously prepared specifically for the purposes of creating a record to support this 

Motion—Uber threatened “adverse employment action,” against Mr. Levandowski, which Uber 

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stated “may include termination of [Mr. Levandowski’s] employment.” (Dkt. 466-2 (Ex. A to 

Mot.) at 4 (emphases added and omitted from original).) In the letter, Uber concedes that it has 

adequately represented Mr. Levandowski’s interests throughout these proceedings by “respect[ing] 

his personal liberties.” (Id. at 3.) Thus, Uber seeks to “shift blame” for the necessary remedial 

provisions to the Court. (Id. (“[I]t is our view that the Court’s Order requires us to make these 

demands of you.”).) 

Within two days of receiving the letter, Mr. Levandowski filed the present Motion seeking 

intervention to assert, for the first time, his purported personal rights relating to Waymo’s 

requested provisional relief. Based on this filing, the Court extended the deadline for Uber to 

comply with certain provisions of the Preliminary Injunction Order and set the current briefing 

schedule. (Dkt. 471.) For the reasons set forth below, Mr. Levandowski’s Motion is an untimely 

attempt to assert baseless arguments designed only to delay implementation of the reasonable 

remedial provisions ordered by the Court. The Motion should be denied in all respects. 

ARGUMENT

I. MR. LEVANDOWSKI FAILS TO MEET HIS BURDEN TO INTERVENE 

A. There Is No Basis To Intervene as of Right.

Under Federal Rule of Civil Procedure 24, a party is entitled to intervene as of right if it 

“claims an interest relating to the property or transaction that is the subject of the action, and is so 

situated that disposing of the action may as a practical matter impair or impede the movant’s 

ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. 

Civ. P. 24(a)(2). The Ninth Circuit has adopted a four-factor test that an applicant must satisfy in 

order to intervene as of right: (1) the motion must be timely; (2) the applicant must have a 

significant protectable interest relating to the property or transaction which is the subject of the 

action; (3) the applicant must be situated such that the disposition of the action may, as a practical 

matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s 

interest must be inadequately represented by the other parties. United States v. Alisal Water 

Corp., 370 F.3d 915, 919 (9th Cir. 2004). The party seeking to intervene has the burden of 

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showing all four factors are satisfied. Id. If the applicant is unable to show that any one of the 

factors is met, then the application for intervention as of right fails and the court is not required to 

consider the remaining factors. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 

(9th Cir. 2009). Because Mr. Levandowski does not meet his burden, the court should deny his 

motion to intervene.

1. The Application Is Not Timely.

The Ninth Circuit has explained that timeliness is a threshold requirement for intervention 

as of right. Allen v. Bedolla, 787 F.3d 1218, 1222 (9th Cir. 2015); United States v. California, 538 

Fed. Appx. 759, 760 (9th Cir. 2013). In evaluating the timeliness of a motion to intervene, the 

Ninth Circuit has held that courts should consider “(1) the stage of the proceeding at which an 

applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of 

the delay.” California, 787 F.3d at 760 (quotations and citations omitted). 

Here, while Mr. Levandowski has repeatedly asserted his purported privileges, and has 

sought limited intervention throughout these proceedings to do so, he never once, prior to the 

issuance of the Order, sought intervention to assert such rights within the context of Waymo’s 

Motion for Preliminary Injunction. Instead, Mr. Levandowski sat on his alleged rights, apparently 

so that in the event of an unfavorable decision, he could use them to derail and further delay any 

provisional relief that the Court was likely to grant against his employer. This gamesmanship has 

already delayed the implementation of appropriate remedial measures, thereby compounding the 

risk of irreparable competitive harm to Waymo. For these reasons, Mr. Levandowski’s request for 

intervention is not timely. 

Mr. Levandowski argues that his request for intervention is timely because it was not 

necessitated until the Court entered its Order for provisional relief on May 15th. However, given 

the factual background recounted above, Mr. Levandowski clearly understood for months that a 

likely Order on the Motion for Preliminary Injunction could have ramifications on his claimed 

rights. Indeed, the Court stated as much on the record as early as March 29th. (3/29/2017 Hr’g 

Tr. at 12:7-11 (“Uber has the authority to say to its employees, ‘If you have anything at home you 

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bring it in here, give it to Mr. González, and he will turn it over to the Court.’ You have the 

authority to do that. And you also have the authority to say, ‘And if you don’t do that, you’re 

fired.’”) (emphasis added).) Clearly, as of at least March 29th, Mr. Levandowski was on notice 

that an Order directing Uber to direct him to return the stolen documents was a distinct possibility.

Because Mr. Levandowski did not seek intervention earlier for the purposes of asserting 

his alleged rights in the context of Waymo’s Motion for Preliminary Injunction, his request is now 

untimely, and should be denied.

2. Mr. Levandowski Cannot Justify Intervention With A “Significantly 

Protectable Interest.”

In addition to timeliness, a movant seeking intervention as of right must demonstrate that 

he has a “significantly protectable interest.” In particular, the Ninth Circuit has held that a 

prospective intervenor must establish that “(1) the interest [asserted] is protectable under some 

law, and (2) there is a relationship between the legally protected interest and the claims at issue.” 

Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996) (internal 

quotations and citations omitted) (alterations in original). 

Here, Mr. Levandowski claims an interest in protecting his Fifth Amendment and attorneyclient privileges. (Mot. at 7.) His argument as to the Fifth Amendment privilege is baseless. 

Under settled law, Mr. Levandowski has no protected Fifth Amendment right that prevents 

Defendants from producing or disclosing documents in their own possession, even if they are 

incriminating against Mr. Levandowski. In particular, courts have held that the Fifth Amendment 

is a personal right and does not prohibit the compelled production of incriminating evidence from 

a third party, such as Defendants. See, e.g., Braswell v. United States, 487 U.S. 99 (1988) 

(president of corporation could not assert personal Fifth Amendment right to prevent production of 

corporate records); see also Dkt. 202 (denying Mr. Levandowski’s request to modify Defendants’ 

privilege log obligations on the grounds that doing so would violate Mr. Levandowski’s Fifth 

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Amendment privilege).1 Thus, Mr. Levandowski has no protectable Fifth Amendment interest 

with respect to information possessed by Uber or any other third party.

To the extent Mr. Levandowski argues that his personal Fifth Amendment privilege is 

implicated by the Court’s Order that Uber take steps to discipline him for his continued criminal 

activity, this argument too fails. Constitutional restrictions, including those under the Fifth 

Amendment, apply only to state, not private, actors. Gilman v. Marsh & McLennan Cos., Inc., 

826 F.3d 69, 76 (2d Cir. 2016); United States v. Solomon, 509 F.2d 863, 870 (2d Cir. 1975) 

(“[T]here would be a complete breakdown in the regulation of many areas of business if 

employers did not carry most of the load of keeping their employees in line and have the sanction 

of discharge for refusal to answer what is essential to that end.”). As discussed more fully below 

(infra Section II.A.1), Mr. Levandowski cites no binding authority for his argument that adverse 

employment action taken by Uber is somehow transformed into “state action” simply because 

Uber takes steps to comply with the Court’s Preliminary Injunction Order.2

Mr. Levandowski also vaguely claims that intervention should be granted so that he can 

protect other privileges, including the attorney-client, common interest, and work product 

privileges.3 (E.g., Mot. at 2 & n.1.) But, as explained below and elsewhere in the record, 

 

1

 Mr. Levandowski cites to In re Katz, 623 F.2d 122 (2d Cir. 1980), in support of his 

argument that the interest in asserting a Fifth Amendment privilege justifies intervention. (Motion 

at 7.) In Katz, an attorney received a subpoena to produce documents, over which one of his 

clients asserted a Fifth Amendment claim, and the court permitted intervention as of right. Id. at 

125. As the Second Circuit recognized, however, this case was dependent upon the fact that the 

recipient of the subpoena was the attorney of the individual seeking to protect his Fifth 

Amendment rights. Thus, the reasoning in Katz was grounded in the attorney-client privilege—

not the Fifth Amendment privilege. Id. at 126 n.2. In citing to Katz here, Mr. Levandowski 

misinterprets the law in the same way he did on his Motion to Modify Defendants’ Privilege Log 

Requirements. (See Dkt. 202 at 8 (“This misinterpretation of Fisher erroneously conflates the 

Fifth Amendment and attorney-client privileges.”).) 

2

 As the Court recognized, the Preliminary Injunction Order “threatens no sanctions against 

Levandowski. It simply directs Uber, a private employer, to do whatever it can to ensure that its 

employees return 14,000-plus pilfered files to their rightful owner. If Uber were to threaten 

Levandowski with termination for noncompliance, that threat would be backed up by only Uber’s 

power as a private employer, and Levandowski would remain free to forfeit his private 

employment to preserve his Fifth Amendment privilege.” (Dkt. 433 at 23 n.9.)

3

 As discussed below (infra Section II.B), in the portion of his Motion seeking to Modify the 

Court’s Preliminary Injunction Order, Mr. Levandowski makes no argument that the Court’s 

Order implicates any applicable attorney-client, common interest, or work product privilege. 

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Mr. Levandowski has no other protectable attorney-client privilege in information possessed by 

Uber, because he and Uber have failed to establish that they have ever shared a sufficiently 

common legal interest to preclude waiver of shared attorney-client communications. (Infra Section 

II.B; See generally Dkts. 321, 444 (Waymo’s Motion and Reply ISO Motion to Compel 

Production of Due Diligence Materials).)

In sum, Mr. Levandowski has no protectable interest in a Fifth Amendment or attorneyclient privilege that intervention into this matter could protect. Intervention should be denied. 

3. Denial of Intervention Will Not Impair Mr. Levandowski’s Ability to 

Protect His Interests.

Mr. Levandowski does not, and cannot, explain how intervention will place him in any 

better position to protect his alleged Fifth Amendment and attorney-client privileges. Indeed, even 

as a non-party, Mr. Levandowski has selectively acted in defense of his alleged privileges.

With regards to the alleged attorney-client privilege, Mr. Levandowski refused to answer 

questions at his deposition regarding the nature and the basis for the supposed common legal 

interest between himself and Uber. (Dkt. 366-8, Levandowski Depo. Tr. at 33:16-23, 34:3-35:13, 

35:14-37:6, 37:7-38:3, 38:4-43:7.) And when Uber sought to oppose Waymo’s Motion to Compel 

production of the Uber-Otto “due diligence” materials, Mr. Levandowski took the position that he 

was only willing to provide the evidence necessary to establish the alleged common interest 

privilege in camera. (Dkt. 382.) 

With regards to the Fifth Amendment privilege, Mr. Levandowski refuses to provide even 

basic information necessary to maintain the privilege over documents responsive to the third-party 

subpoena served on him. (Dkt. 493.) As the Court recently recognized, Mr. Levandowski “failed 

to comply with the Court’s directive” to provide information to Waymo sufficient to assess his 

assertion of the Fifth Amendment. (Dkt. 501 at 2.) Again, the most Mr. Levandowski has been 

willing to provide regarding his assertion of privilege is secret evidence, in camera (4/12/17 Hr’g 

Tr. at 78:21-79:5), which the Court has also found lacking (Dkt. 501 at 2 (“Levandowski’s in 

 

Thus, Mr. Levandowski’s request to intervene to protect these interests must also be denied for 

this separate reason. 

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camera submission largely failed to remedy the deficiencies of his public brief.”).) There is no 

reason to believe Mr. Levandowski will suddenly be more forthcoming with relevant evidence if 

allowed to intervene, and thus intervention should be denied.4 

4. Defendants Can Adequately Represent Mr. Levandowski’s Interests in 

Protecting his Alleged Privileges.

Mr. Levandowski also fails to demonstrate that the existing Defendants cannot adequately 

protect his interests in this action. Under Ninth Circuit law, the court should consider three factors 

in determining the adequacy of representation: “(1) whether the interest of a present party is such 

that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present 

party is capable and willing to make such arguments; and (3) whether a proposed intervenor would 

offer any necessary elements to the proceeding that other parties would neglect.” Arakaki v. 

Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). “The most important factor in determining the 

adequacy of representation is how the interest compares with the interests of existing parties. 

When an applicant for intervention and an existing party have the same ultimate objective, a 

presumption of adequacy of representation arises.” Id. (internal citation omitted) (emphasis 

added). Here, the existing Defendants, who have had every incentive to obstruct Waymo’s 

discovery, have adequately represented Mr. Levandowski’s interests.5

 

4

 The out-of-circuit cases Mr. Levandowski cites are all distinguishable. In each of these 

cases, the intervenor demonstrated that it was ready, willing, and able to provide evidence and 

arguments to defend its protectable interest that the existing parties to the litigation were unwilling 

to make. In re Grand Jury Subpoena, 274 F.3d 563, 568 (1st Cir. 2001) (permitting intervention 

to allow board members to assert attorney-client privilege that company was willing to waive); In 

re Grand Jury Matter, 735 F.2d 1330, 1330 (11th Cir. 1984) (permitting intervention where 

clients were prepared to provide “letters and other evidence” in support of their asserted attorneyclient privilege); United States v. Am. Telephone & Telegraph Co., 642 F.2d 1285, 1289-90 (D.C. 

Cir. 1980) (permitting intervention to allow appeal by non-party claiming work product over 

documents in possession of government, where government was unwilling to appeal); Sackman v. 

Liggett Grp., 167 F.R.D. 6, 19 (E.D.N.Y. 1996) (permitting intervention for the purpose of filing 

specific objections to the discovery order of the magistrate judge).

5

 Although Waymo disputes the existence of a valid joint-defense privilege between 

Mr. Levandowski and Uber and also contests any right by Uber to assert a Fifth Amendment claim 

on behalf of Mr. Levandowski, the fact remains that Uber has vigorously defended the 

applicability of these privileges, which supports denying Mr. Levandowski’s request to intervene.

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Throughout the expedited discovery period, Uber has repeatedly sought to rely on 

Mr. Levandowski’s alleged rights. Indeed, Uber benefits from Mr. Levandowski’s assertion of the 

Fifth Amendment, because such assertion is cloaking in secrecy Mr. Levandowski’s continuing 

criminality—and Uber’s complicity therein. (Dkt. 433 at 8 (noting that the combined actions of 

Levandowski and Uber has resulted in the “relentless concealment of likely probative evidence, 

both documentary and testimonial, from Waymo’s view.”). For example, Uber has sought to hide 

behind Mr. Levandowski’s Fifth Amendment privilege, by providing improperly redacted 

privilege logs to shield the identity of its “due diligence” consultant. (Dkt. 202.) Uber has also 

refused to comply with Judge Alsup’s expedited discovery order that it insist Mr. Levandowski 

return the 14,000 files he stole from Waymo. (3/29/2017 Hr’g Tr. at 11:24-12:5.) As Uber itself 

admits, it has striven to “respect[]” Mr. Levandowski’s “personal liberties” in this case (Dkt. 466-

2 (Ex. A to Mot.) at 3)—at least when it suited Uber. If it is the case that Uber now can no longer 

shield Mr. Levandowski from the consequences of his criminal activity, that is not because Uber is 

unwilling to defend Mr. Levandowski’s interest, it is only because the parties have now, finally, 

reached the limits of what the Fifth Amendment credibly protects. 

Mr. Levandowski’s interest in protecting his alleged common-interest privilege is likewise 

adequately represented by the existing Defendants. Throughout this case, Defendants have 

contested the production of alleged privileged materials based on exactly the same common 

interest privilege that Mr. Levandowski seeks to assert. (See Defs’ Opp. to Mot. to Compel (Dkt. 

369).) Indeed, Mr. Levandowski filed a “joinder” to Defendants’ Opposition to Waymo’s Motion 

to Compel, which offered zero new arguments and instead simply “relie[d] on the points and 

authorities set forth in Uber’s memorandum . . . .” (Dkt. 384.) This confirms that 

Mr. Levandowski has no new facts, arguments, or evidence to add to those already presented by 

Uber. See, e.g., In re Weingarten, 492 Fed. Appx. 765, 756 (9th Cir. 2012) (finding that proposed 

intervenors’ interests were adequately represented where the existing party to the litigation and the 

proposed intervenors shared the same ultimate objective of defeating another party’s attempt to 

recover certain property and where the existing party and the proposed intervenors were 

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represented by the same counsel); Executive Risk Specialty Ins. Co. v. Rutter Hobbs and Davidoff, 

Inc., 564 Fed. Appx. 887 (9th Cir. 2014) (affirming denial of motion to intervene where existing 

litigant and proposed intervenor had the same ultimate objective). As such, intervention should be 

denied. 

5. Equitable Considerations Weigh Against Intervention.

“In determining whether intervention is appropriate, courts are guided primarily by 

practical and equitable considerations . . . .” Alisal, 370 F.3d at 919. Here, the equities weigh 

strongly against permitting Mr. Levandowski to intervene. As summarized in a recent discovery 

letter brief, Mr. Levandowski has flouted this Court’s orders that he timely produce documents in 

response to a subpoena and provide information sufficient to justify his asserted privileges. (Dkt. 

493.) For example, even though Mr. Levandowski was ordered to produce all documents 

responsive to the subpoena served on him by April 14th, he delayed his first production until April 

24th and failed to complete his production until May 11th, almost a month late. In addition, Mr. 

Levandowski “failed to comply with the Court’s directive to provide ‘enough of the argument’” 

regarding his assertion of the Fifth Amendment privilege “so that Waymo could respond.” (Dkt. 

501 at 2, quoting Dkt. 250.) Given his failures to comply with the Court’s discovery orders, Mr. 

Levandowski’s request to intervene should be denied on equitable grounds as well. 

B. Levandowski’s Motion for Permissive Intervention Should Be Denied.

Under the Ninth Circuit’s test for permissive intervention, a movant seeking permissive 

intervention must first establish certain threshold requirements: “(1) independent grounds for 

jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, 

have a question of law or a question of fact in common.” Southern California Edison Co. v. 

Lynch, 307 F.3d 794, 803-04 (9th Cir. 2002). 

For many of the same reasons that intervention as a matter of right should be denied, so too 

should permissive intervention be denied. The Motion is not timely, because it was not brought 

during the lengthy discovery period and briefing schedule leading up to the Preliminary Injunction 

Order. See, e.g., Allen, 787 F.3d at 1222 (“A timely motion is required for the granting of 

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intervention, whether as a matter of right or permissively.”). Mr. Levandowski also fails to 

explain what his intervention will accomplish, or how his position on the Preliminary Injunction 

Order will differ from that of Uber.6 Dep’t of Fair Employment & Housing v. Lucent Techs. Inc., 

642 F.3d 728, 742 (9th Cir. 2011) (holding that court does not abuse its discretion in denying or 

limiting permissive intervention where the positions of the purported intervenors are adequately 

represented by another party); Perry v. Schwarzenegger, 630 F.3d 898, 906 (9th Cir. 2011) 

(denying intervention where the would-be intervenor has “no new evidence or arguments to 

introduce into the case.”). Finally, the proposed intervention has already delayed the appropriate 

remedial measures outlined in the Preliminary Injunction Order, which of course is the intended 

purpose. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1988) (upholding denial of 

permissive intervention where “allowing intervention would only serve to undermine the 

efficiency of the litigation process” (quotation omitted)). The relevant factors, as well as the 

equities, weigh in favor of denying permissive intervention.

II. Mr. Levandowski’s Motion To Modify The Court’s Order Should Be Denied

Even if intervention were permitted, it would be futile, because Mr. Levandowski is not 

entitled to the underlying relief that he seeks. Consistent with governing trade secret law, the 

Court’s Preliminary Injunction Order simply requires that Uber take reasonable remedial measures 

to avoid the exploitation of Waymo’s intellectual property. These measures, which are directed to 

Uber as a private employer, do not require Mr. Levandowski or his attorneys to do anything, much 

less compel him to waive his applicable privileges. The Motion should be denied. 

 

6

 Mr. Levandowski’s cited authority, Convertino v. United States DOJ, 674 F. Supp. 2d 97 

(D.D.C. 2009), is distinguishable because that case involved an intervenor seeking to vindicate 

attorney-client privileges that were not being asserted by any party in interest to the action. Id. at 

108. Here, by contrast, and as the Court has recognized, Defendants have “asserted extensive 

claims of privilege” which has led to the “relentless concealment of likely probative evidence, 

both documentary and testimonial.” (Dkt. 433 at 8.) Mr. Levandowski is asserting attorney-client 

privilege under the very same common interest argument advanced by the existing Defendants. 

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A. The Court’s Order Does Not Implicate Mr. Levandowski’s Fifth Amendment 

Privilege

In his Motion, Mr. Levandowski argues that the Court’s Preliminary Injunction Order 

infringes on his constitutional rights by compelling him to waive his Fifth Amendment rights or 

else face adverse employment consequences. (Mot. at 9-16.) To support this claim, he cites to 

Garrity v. New Jersey, 385 U.S. 493 (1967), and related cases which merely stand for the 

unremarkable proposition that the government may not condition a government employee’s 

employment on the individual’s waiver of his or her Fifth Amendment rights. See, e.g., Garrity, 

385 U.S. at 494 (employment as police officers); Lefkowitz v. Cunningham, 431 U.S. 801 (1977) 

(state political party office and public office); Uniformed Sanitation Men Ass’n v. Comm’r of 

Sanitation, 392 U.S. 280 (1968) (employment with the New York Department of Sanitation); 

United States v. Goodpaster, 65 F. Supp. 3d 1016, 1024 (D. Or. 2014) (employment with the U.S. 

Postal Service).7 But the same prohibitions do not apply to purely private employers. As stated in 

one of Mr. Levandowski’s own cited cases: “There is nothing inherently wrong with pressuring 

an employee to cooperate or punishing one who does not. Employers sometimes need information 

from their employees, and a private employer may fire an employee who refuses to answer.” 

Goodpaster, 65 F. Supp. 3d at 1025. 

Here, nothing in the Preliminary Injunction Order directly affects the terms of 

Mr. Levandowski’s employment or forces him to waive his Fifth Amendment privilege against 

self-incrimination. Rather, the Order merely directs Defendants to use their corporate, 

employment, contractual and other authority and influence to obtain cooperation from 

Mr. Levandowski in returning Waymo’s stolen files. (Dkt. 433 at 23 & n.9.) Given that Uber 

“knew or should have known” that Mr. Levandowski was in possession of stolen Waymo 

materials at the time it hired him (id. at 12), this sort of remedial provision is entirely proper and 

 

7

 Minnesota v. Murphy, 465 U.S. 420 (1984), which Mr. Levandowski also cites, is 

completely irrelevant because there, the court noted the general principle that the state could not 

attach penalties to the exercise of the Fifth Amendment, before concluding that the state had not in 

fact done so. Id. at 437-38 (“[T]here is no reasonable basis for concluding that Minnesota 

attempted to attach an impermissible penalty to the exercise of the privilege against selfincrimination.”). 

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appropriate in order to minimize the possibility of competitive harm to Waymo. See 18 USC 

§ 1836(b)(3)(A)(ii) (providing that “if determined appropriate by the court,” an injunction may 

issue “requiring affirmative actions to be taken to protect the trade secret”); Cal. Civ. Code 

§ 3426.2(c) (“In appropriate circumstances, affirmative acts to protect a trade secret may be 

compelled by court order.”).

1. Any Adverse Employment Action By Uber Under The Court’s Order 

Would Not Amount To “State Action”

Mr. Levandowski concedes, as he must, that “the Fifth Amendment [does not] bar adverse 

action from a private employer.” (Mot. at 13.) Thus, his argument rests on the proposition that 

the Court’s Preliminary Injunction Order is “state compulsion” sufficient to deem the actions of a 

private employer that of the State. (Mot. at 12, quoting Blum v. Yaretsky, 457 U.S. 991, 1004 

(1982).) But, the “state compulsion” doctrine cited by Mr. Levandowski is a theory for holding 

the government liable for monetary damages based on the actions of a private entity—not a 

doctrine for deeming that the actions of a private entity amount to a constitutional violation that 

voids the underlying government action. In fact, the very Ninth Circuit case cited by Mr. 

Levandowski, Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999), noted the 

limitations of the “state compulsion” doctrine, holding that it should not be interpreted in a way 

that would “convert every employer—whether it has one employee or 1,000 employees—into a 

governmental actor every time it complies with a presumptively valid, generally applicable law . . 

. .” Id. at 838. 

Mr. Levandowski cites no precedent, either from the Ninth Circuit or elsewhere (and 

Waymo is aware of none), that holds that a court order requiring a company to return stolen 

documents in the possession of its employees is unconstitutional. Indeed, courts require private 

employers to return materials in the possession of those under their control all the time. See, e.g., 

ATS Prods Inc. v. Ghiorso, Case No. 3:10-cv-04880-BZ, Slip Op., Dkt. 271 at ¶ 58 (N.D. Cal. Jan. 

27, 2012) (“Defendants and anyone covered by this injunction must return to Plaintiff within 30 

days of entry of this injunction all documents or materials, including electronically stored 

information, that contain, discuss, or reflect the Shea trade secrets . . . within their possession, or 

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within the possession of anyone under their control.” (emphasis added)); Pyro Spectaculars 

North, Inc. v. Souza, 861 F. Supp. 2d 1079, 1093-94 (E.D. Cal. 2012) (“[T]he court already issued 

an interim injunctive order essentially requiring collection, production, and the subsequent 

destruction of any remnants of all PSI documents, databases, and information in defendant’s actual 

or constructive possession, or in the actual or constructive possession of those acting in concert or 

active participation with defendant . . . .”); cf. Saini v. Int’l Game Tech., 434 F. Supp. 2d 913, 925 

(D. Nev. 2006) (granting preliminary injunction against individual to return confidential and 

proprietary documents taken from former employer).

Although court orders requiring the return of trade secret information are ubiquitous, 

Mr. Levandowski fails to cite a single case in which such an order was found to contravene an 

individual’s Fifth Amendment privilege against self incrimination. Indeed, to find an example of 

an even somewhat similar argument being raised, we must look far afield from the current factual 

setting—where the prevailing law holds that there is no Fifth Amendment problem with a private 

employer coercing an employee to cooperate with an internal investigation, even where such 

coercion came as a result of government influence. See, e.g., Gilman, 826 F.3d at 76. In Gilman, 

a former employer was sued, in a civil case, by the New York Attorney General for alleged 

fraudulent business practices and antitrust violations based on the actions of its two employees. 

Id. at 72. Facing potential criminal indictment itself, the employer ordered the two employees to 

sit for interviews with the state authorities, and when they refused, promptly fired them. Id. The 

employees then sued the employer for lost employment benefits, contending amongst other things 

that the employer’s “interview demands constitute state action that infringed their right against 

self-incrimination.” Id. at 76. The Second Circuit rejected this argument, characterizing it as “the 

legal equivalent of the ‘Hail Mary pass’ in football.” Id. According to the Second Circuit, “a 

company is not prohibited,” in response to government action, from coercing its employees to 

cooperate, “even when employees suspected of crime end up jettisoned.” Id.; see also Solomon, 

509 F.2d at 870 (“[T]here would be a complete breakdown in the regulation of many areas of 

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business if employers did not carry most of the load of keeping their employees in line and have 

the sanction of discharge for refusal to answer what is essential to that end.”). 

The primary case relied upon by Mr. Levandowski, United States v. Stein, 541 F.3d 130 

(2d Cir. 2008), is not controlling here. In Stein, federal prosecutors exerted “overwhelming” 

influence over accounting firm KPMG in order to minimize the involvement of criminal defense 

attorneys acting on behalf of KPMG employees during a criminal investigation. 541 F.3d at 136, 

143. Contrary to Mr. Levandowski’s argument (Mot. at 14), the government’s influence in Stein

was not a mere “consideration” to the company’s decision to withhold legal assistance to its 

employees. Rather, the Second Circuit affirmed the district court’s factual findings that 

prosecutors effectively stepped into the shoes of KPMG to set company policy and then applied 

that policy to KPMG employees for the direct benefit of an ongoing criminal investigation and in 

contravention of those employees’ alleged constitutional right (i.e., effective assistance of 

counsel).8 Id. at 148. This is distinguishable from the present case. Here, in the civil context, this 

Court has made certain findings—i.e., “Waymo has made a strong showing that Levandowski 

absconded with over 14,000 files from Waymo, evidently to have them available to consult on 

behalf of Otto and Uber” and “those files have not been returned” (Dkt. 433 at 7)—based on an 

extensive evidentiary record. As a result, the Court has ordered Uber to do everything in its power 

to cause the stolen files to be returned. (Id. at 23.) Perhaps Uber’s compliance with that Order 

will put Mr. Levandowski to a difficult choice with regard to his employment. Such 

considerations, however, have no bearing on whether the Order passes constitutional muster. See 

Gilman, 826 F.3d at 76; Solomon, 509 F.2d at 870. Indeed, adverse consequences often flow from 

an individual’s choice to assert one’s Fifth Amendment rights in the context of a civil case. E.g., 

Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); see also SEC v. Graystone Nash, Inc., 25 F.3d 

187, 191 (3d Cir. 1994).

 

8

 In Stein, the Second Circuit emphasized the nature of the Sixth Amendment right, which 

guarantees a “principle of non-interference” by the government with a defendant’s choice of legal 

counsel. 541 F.3d at 154.

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Mr. Levandowski seems to suggest that a constitutional violation results from all adverse 

employment consequences, unless such consequences are “the product of purely private discretion 

untainted by government coercion.” (Mot. at 13 (emphasis in original).) But this extreme position 

would lead to absurd results. Private employers routinely demand cooperation from employees 

out of a desire to comply with all manner of laws, regulations, and court orders. The notion that 

all legitimate court orders against companies that happen to have incidental effects on the 

employment of their employees are thereby transformed to state action with constitutional 

limitations would be “incompatible with corporate governance and modern regulation.”9 Gilman, 

826 F.3d at 77. 

The rule proposed by Mr. Levandowski—that anything short of unfettered discretion on 

the part of the employer renders adverse employment decisions “state action”—would also lead to 

particularly perverse results here. Despite Waymo making the showing that it has with respect to 

the stolen files, Uber would like to keep Mr. Levandowski as an employee and continue to benefit 

from Mr. Levandowski’s access to Waymo’s files. And in Mr. Levandowski’s view, so long as 

Uber can construct a self-serving narrative that its actions are motivated by compliance with a 

Court Order, this itself is sufficient to void such Order and defeat Waymo’s entitlement to 

appropriate provisional relief. Indeed, this appears to be precisely what has occurred in Uber’s 

letter to Mr. Levandowski (Dkt. 466-2 (Ex. A to Mot.) at 3), which goes out of its way to lay 

blame for the threatened adverse employment actions with the Court’s Preliminary Injunction 

Order. Id. (“While we have respected your personal liberties, it is our view that the Court’s Order 

requires us to make these demands of you.”). It is unthinkable that Uber can render the Court’s 

Preliminary Injunction Order unconstitutional through such self-serving statements.

 

9

 Further confirming that there is no constitutional defect with the Court’s Preliminary 

Injunction Order is the fact that there is no barrier, under the Fifth Amendment or otherwise, to the 

Court sanctioning and drawing adverse inferences against Uber for failing to coerce Mr. 

Levandowski’s cooperation. See, e.g., RAD Serv., Inc. v. Aetna Cas. & Sur. Co., 808 F.2d 271, 

275 (3d Cir. 1986) (“Nothing forbids imputing to a corporation the silence of its personnel.”); 

Brinks, Inc. v. City of New York, 717 F.2d 700, 709-10 (2d Cir. 1983) (drawing adverse inferences 

against a corporation based on assertion of Fifth Amendment privilege by non-party employees 

and former employees). 

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2. The Threat Of Adverse Employment Action Does Not Effectively 

Compel Mr. Levandowski to Speak

Even if, for the sake of argument, it were assumed that the Court’s Order renders Uber’s 

threat of adverse employment action “state action,” it still would not result in a constitutional 

violation because it would not effectively remove Mr. Levandowski’s free choice or compel him 

to speak. Although the Supreme Court has held that state action constituting a threat of 

“substantial economic sanction” is sufficient to trigger constitutional scrutiny,10 Mr. Levandowski 

has made no showing that the threatened sanction here is “substantial” under the circumstances. 

Mr. Levandowski received $120 million in bonus payments from Google before 

absconding with its intellectual property (Dkt. 133-3 ¶ 3; see also Dkt. 1 (Compl.) ¶¶ 7, 55) and 

likely received significant cash compensation from Uber after its acquisition of Otto for $680 

million (Dkt. 1 (Compl.) ¶¶ 7, 55). As a result, the threat of termination in this case cannot 

seriously be compared to the types of sanctions at issue in the more typical “penalty” cases cited in 

Mr. Levandowski’s Motion. E.g., Garrity, 385 U.S. at 497 (holding that for state police officers 

“[t]he option to lose their means of livelihood” was too great a penalty to bear as the price for 

remaining silent). Where the threatened sanction does not appear “to have been of sufficiently 

appreciable size and substance to deprive the accused of his ‘free choice to admit, to deny, or to 

refuse to answer,’” courts have found that no constitutional violation arises. United States ex rel. 

Sanney v. Montanye, 500 F.2d 411, 415 (2d Cir. 1974), quoting Garrity, 385 U.S. at 496. As the 

Court in Montanye held:

[T]he threat of discharge from a job as a driver’s assistant, which Sanney had held 

for one or two days, can hardly be labelled a ‘substantial economic sanction’ 

rendering his statement involuntary. Sanney was not a policeman or public 

employee with many years of public service who faced the loss of pension rights, 

seniority status or other privileges if he refused to cooperate. Nor was he a 

professional who would lose his license, or be permanently foreclosed from an 

important segment of industry, unless he confessed. Sanney was a transient 

manual laborer who had been on the job for at most a couple of days. 

 

10

 Baxter, 425 U.S. at 330 (emphasis added).

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Id. (internal citations omitted); see also id. at fn. 3 (noting that “[w]ere he a pampered professional 

or high-paid businessman with a similar transient employment history and no assurance of tenure, 

the result would be the same.”).

Such is the case here. The threat of termination from a job that Mr. Levandowski has held 

for just one year does not effectively compel him to speak, particularly given the resources that 

would be available to him while he seeks alternative employment. Termination by Uber also 

would not cause him to “lose [any] license” or “be permanently foreclosed from [any] industry.” 

Montanye, 500 F.2d at 415. Because any threat by Uber to terminate Mr. Levandowski’s 

employment is insufficient to deprive him of his free choice to remain silent, no Fifth Amendment 

violation can possibly arise in this case. 

3. To The Extent The Order Merely Requires The Production Of 

Documents, The Fifth Amendment Does Not Apply At All.

Finally, Mr. Levandowski has not met his burden to show that the portion of the Court’s 

Order that requires Uber to return Waymo’s stolen files implicates the Fifth Amendment at all. 

As noted above, the Fifth Amendment privilege is a personal right to not incriminate 

oneself, and it does not extend to the production of materials within the possession of others. 

(Supra Section I.A.2.) Mr. Levandowski argues that “[t]he Court’s requirement to collect 

information from Mr. Levandowski’s counsel, as well as consultants working for legal counsel, . . 

. crosses into constitutionally improper compulsion.” (Mot. at 15.) But the Court has already 

rejected this argument, holding that it “erroneously conflates the Fifth Amendment and attorneyclient privileges,” seeking to “lend ‘Constitutional dimensions’ to the latter.” (Dkt. 202 at 8 

(citation omitted).) To the extent that documents in question are within the custody of a thirdparty, including Mr. Levandowski’s personal attorneys or a third-party consultant working at the 

direction of his or Uber’s attorneys, requiring their production does not have Fifth Amendment 

implications.

11

 

11

 Not only are stolen documents in the possession of Mr. Levandowski’s attorneys not 

subject to a Fifth Amendment privilege, Mr. Levandowski’s attorneys actually have an ethical 

obligation to return them immediately. Lynn v. Gateway Unified Sch. Dist., Case No. 2:10-cv00981, 2011 WL 6260362, at *6 (E.D. Cal. Dec. 15, 2011) (disqualifying attorney who took 

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Moreover, even with respect to documents and information within Mr. Levandowski’s 

personal possession, the Fifth Amendment does not apply unless the act of production itself is 

incriminating. Moore v. Gilead Sciences, Inc., No. C 07-03850 SI, 2011 WL 5572975, at *7-8 

(N.D. Cal. Nov. 16, 2011). Merely because certain documents called for by the Court’s Order 

may contain within them incriminating facts is not sufficient to raise a Fifth Amendment 

objection. As stated in United States v. Hubbell, 530 U.S. 27 (2000), “a person may be required to 

produce specific documents even though they contain incriminating assertions of fact or belief 

because the creation of those documents was not ‘compelled’ within the meaning of the privilege.” 

Id. at 35-36. As has become a running theme in this case, Mr. Levandowski has not even 

attempted to meet his burden to establish the predicates as to how Uber’s compliance with the 

Court’s Order could be a violation of Mr. Levandowski’s Fifth Amendment rights. 

For all these reasons, the Court’s Preliminary Injunction Order poses no Fifth Amendment 

concerns. Mr. Levandowski’s Motion to Modify the Order should be denied.

B. The Court’s Order Does Not Implicate Mr. Levandowski’s Other Privileges.

Although Mr. Levandowski additionally seeks intervention to protect his attorney-client, 

common interest, and work product privileges, his argument to modify the Court’s Order rests 

entirely on the Fifth Amendment and does not explain how the Court’s Preliminary Injunction 

Order implicates these other privileges.12 (Mot. at 9-15.) Mr. Levandowski does note that Uber’s 

letter to him demands cooperation from his personal attorneys. (Mot. at 14.) But he then goes on 

to admit that “it appears that the Court’s order is only intended to require Uber to state which 

people have ‘seen or heard any part of any downloaded materials . . . including . . . separate 

counsel’” (Mot. at 14, quoting Dkt. 433 at 24). Thus, by his own concession, there is nothing in 

the Preliminary Injunction Order that requires Mr. Levandowski to waive any attorney-client, 

 

possession of stolen emails, which possibly violated the California Penal Code, improperly 

suppressed evidence of a crime; and breached attorney’s ethical duties); see also People v. Lee, 3 

Cal. App. 3d 514, 526 (1970) (“It has been held an abuse of a lawyer’s professional responsibility 

knowingly to take possession of and secrete the instrumentalities of a crime.” (quotation omitted)). 

12

 Accordingly, the Court should deny Mr. Levandowski’s request to intervene to the extent it is 

based on these interests. 

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common interest, or work product privilege. See Johnson v. Hewlett-Packard Co., Case No. C09-

3596 CRB (BZ), 2010 WL 4510345, at *1 (N.D. Cal. Nov. 1, 2010) (underlying facts of an 

attorney-client relationship, such as whether a communication took place, the identity of parties 

who were present, and the date of the communication, are not privileged) (citation omitted). 

In any event, Mr. Levandowski cannot complain about the Court requiring Uber to disclose 

Mr. Levandowski’s allegedly attorney-client privileged materials because any claim of privilege 

over these materials was waived by disclosure from Mr. Levandowski and his counsel to Uber. 

See generally Dkts. 321, 444 (Waymo’s Motion and Reply ISO Motion to Compel Production of 

Due Diligence Materials).) Indeed, the very fact that Mr. Levandowski now deems it necessary to 

intervene to protect an alleged privilege that he fears Uber will not defend confirms that these 

parties have had divergent legal interests all along, and any sharing between them of attorneyclient communications was merely in furtherance of a commercial, as opposed to a legal, interest. 

Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575 (N.D. Cal. 2007) (holding that the common 

interest privilege does not apply to communications between a potential bidder and acquisition 

target that were merely “helpful to facilitate the potential commercial transaction.”); see also 

Harris v. Lang Pharma Nutrition, Inc., No. MC 14-1154, 2015 WL 12832093, at *2 (C.D. Cal. 

May 22, 2015) (holding that the doctrine does not apply where the only common legal interest 

between parties to a commercial transaction is to comply with the laws regarding the products they 

sold—“[i]f such a general legal interest were sufficient, the common interest exception would 

swallow the waiver rule.”). 

In fact, the only conceivable shared legal interest between Mr. Levandowski and Uber 

would be in the location and possession of stolen files (or the concealment thereof), which falls 

within the crime-fraud exception, rendering any possible claim of privilege void. E.g. United 

States v. Edison, No. CR 07-0074, 2008 WL 170660, at *4 (N.D. Cal. Jan. 17, 2008) (Alsup, J.) 

(holding that under the crime-fraud exception, “conversations that furthered ongoing efforts to 

obstruct justice would not be protected.”); Restatement (Third) of the Law Governing Lawyers § 

82, cmt. e (“Confidential communications concerning ways in which Client can continue to 

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possess the stolen goods, including information supplied by Client about their present location, are 

not protected by the privilege because of the crime-fraud exception.”). 

Mr. Levandowski’s request to modify the Preliminary Injunction Order is wholly 

unsupported by any authority, and is in fact contrary to prevailing law and common sense. His 

Motion should be denied. 

III. Responses To Court Ordered Questions

In its Order continuing certain deadlines relating the granted provisional relief and setting a 

briefing schedule on this Motion, the Court posed three specific questions. (Dkt. 471.) Based 

upon the analysis and authorities outlined above, Waymo provides the following responses:

1. When an employee steals and retains a competitor’s trade secrets, may 

the employer, upon learning of the theft, direct the employee to make it 

right with the competitor and to return all copies of the trade secrets to 

the competitor on pain of adverse employment action, up to and 

including termination? Yes, this happens all the time. Does the Fifth 

Amendment prevent such private action? No.

There are no constitutional limitations on the ability of a private employer to threaten a 

employee with termination unless an employee returns materials stolen from a former employer. 

Mr. Levandowski admits as much. (Mot. at 13 (“[T]he Fifth Amendment [does not] bar adverse 

action from a private employer.”).) Additionally, as Mr. Levandowski’s own cited authority 

makes clear: “There is nothing inherently wrong with pressuring an employee to cooperate or 

punishing one who does not. Employers sometimes need information from their employees, and a 

private employer may fire an employee who refuses to answer.” Goodpaster, 65 F. Supp. 3d at 

1025. 

2. In such circumstances, may a court order the employer to exercise the 

full scope of its private authority over the employee to cause the 

employee to return all copies of the stolen trade secrets? Yes. Does the 

Fifth Amendment bar such an order? No.

A court may order that an employer use the full scope of its private authority over its 

employees to ensure that a competitor’s trade secrets are not unlawfully exploited. See 18 USC 

§ 1836(b)(3)(A)(ii) (providing that “if determined appropriate by the court,” an injunction may 

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issue “requiring affirmative actions to be taken to protect the trade secret”); Cal. Civ. Code 

§ 3426.2(c) (“In appropriate circumstances, affirmative acts to protect a trade secret may be 

compelled by court order.”).

The Fifth Amendment does not bar the Court from making such an order. Courts have 

expressly rejected the argument that “acts . . . taken by a private company in response to 

government action . . . amount to state action” for purposes of the Fifth Amendment. Gilman, 826 

F.3d at 76. Indeed, there is no authority suggesting that a Court, in a civil case and on the basis of 

an extensive evidentiary record, cannot order an employer to do everything within its power to 

return stolen materials, regardless of whether its employees take the Fifth. 

3. Where an employer learns that its employee has stolen trade secrets 

from a competitor and fails to, on its own initiative, use the full scope of 

its private authority over the employee to return all copies of the trade 

secrets to their rightful owner, may the Court instruct the jury that it 

may consider such failure as a ratification by the employer of the theft? 

Yes.

Under California law, an employer who fails to take reasonable remedial measures in 

response to credible evidence that its employee is in possession of a competitor’s trade secrets 

ratifies the employee’s conduct. Cal. Civ. Code § 2310 (“A ratification can be made . . . by 

accepting or retaining the benefit of the act, with notice thereof.”); Contemporary Servs. Corp. v. 

Landmark Event Staffing Servs., Inc., --- Fed. Appx. ---, 2017 WL 393718, at *1 (9th Cir. Jan. 30, 

2017) (unpublished) (“CSC raised a triable issue as to whether Landmark unlawfully ratified 

employee Grant Haskell’s misappropriation of CSC trade secrets when Landmark failed to cease 

the use of CSC documents, disavow Haskell’s conduct, or terminate Haskell’s employment after 

Landmark “had reason to know” of Haskell’s misappropriation.”); Ajaxo Inc. v. E*Trade Grp., 

Inc., 135 Cal. App. 4th 21, 67-68 (2005) (conduct of an employee who misappropriated trade 

secrets was ratified where ratifying company’s “top management had the opportunity to know of 

and either ignore or actually approve of” the theft); PMC, Inc. v. Kadisha, 78 Cal. App. 4th 1368, 

1385 (2000) (finding triable issue where employer made “no real attempt to determine” whether 

trade secret misappropriation had occurred). There must be some consequence for Uber’s failure 

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to—on its own initiative—use the full scope of its private authority over Mr. Levandowski to have 

Waymo’s stolen files returned (even after this Court’s March 16 Order requiring the return of those 

files (Dkt. 61)). At the very least, the jury should be instructed that it may consider such failure as 

a ratification by Uber of the theft. 

It is also permissible to instruct the jury that it may draw an adverse inference against an 

employer as a result of its employee’s assertion of the Fifth Amendment. See, e.g., RAD Serv., 

Inc., 808 F.2d at 275 (3d Cir. 1986) (“Nothing forbids imputing to a corporation the silence of its 

personnel.”); Brinks, 717 F.2d at 709-10 (drawing adverse inferences against a corporation based 

on assertion of Fifth Amendment privilege by non-party employees and former employees); Data 

General Corp. v. Gruman Systems Support Corp., 825 F. Supp. 340, 353 (D. Mass. 1993); 

Armacell LLC v. Bostic, 205 N.C. App. 467, at *12-14 (2010) (granting preliminary injunction 

against employer based, in part, on adverse inferences drawn from employee’s assertion of the 

Fifth Amendment). Although the Ninth Circuit has not considered this specific situation, the Third 

Circuit’s opinion in RAD Services is widely accepted as the leading authority on this question, and 

has been cited in this District, including by this Court. E.g., In re Tableware Antitrust Litig., No. 

C-04-3514 VRW, 2007 WL 781960, at *4 (N.D. Cal. Mar. 13, 2007); Aptix Corp. v. Quickturn 

Design Sys., Inc., No. 98–00762, 2000 WL 852813, at *21 (N.D. Cal. Jun. 14, 2000) (Alsup, J.), 

vacated in part on other grounds. This principle also informs the permissibility of a jury 

instruction that Uber has ratified Mr. Levandowski’s conduct. 

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny the Motion in 

all respects. 

DATED: May 26, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

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