SUHR DECL. ISO DEFTS’ OPPOSITION TO MOTION TO COMPEL

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

sf- 3766423

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 

MICHAEL A. JACOBS (CA SBN 111664)

MJacobs@mofo.com 

ARTURO J. GONZÁLEZ (CA SBN 121490) 

AGonzalez@mofo.com 

ERIC A. TATE (CA SBN 178719) 

ETate@mofo.com 

RUDY Y. KIM (CA SBN 199426) 

RKim@mofo.com 

 MORRISON & FOERSTER LLP

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

Facsimile: 415.268.7522 

KAREN L. DUNN (Pro Hac Vice) 

kdunn@bsfllp.com 

HAMISH P.M. HUME (Pro Hac Vice) 

hhume@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

1401 New York Avenue, N.W. 

Washington DC 20005 

Telephone: 202.237.2727 

Facsimile: 202.237.6131 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. 

and OTTOMOTTO 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

DECLARATION OF JUSTIN SUHR 

IN SUPPORT OF DEFENDANTS’ 

OPPOSITION TO MOTION TO 

COMPEL 

Date: June 8, 2017 

Time: 10:00 a.m. 

Ctrm: F, 15th Floor 

Judge: The Hon. Jacqueline Scott Corley 

Trial Date: October 2, 2017

Case 3:17-cv-00939-WHA Document 378 Filed 05/08/17 Page 1 of 6
SUHR DECL. ISO DEFTS’ OPPOSITION TO MOTION TO COMPEL

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

sf- 3766423

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 

I, Justin Suhr, declare as follows: 

1. I am a member of the bar of the State of California and am in-house counsel at, 

and serve as Legal Director, Employment for Uber Technologies Inc. (“Uber”). I have served in 

that position since April 2015. I submit this declaration in support of Defendants’ Opposition to 

Waymo’s Motion to Compel Production of the Stroz Due Diligence Report. I have personal 

knowledge of the facts stated herein and, if called as a witness, I could and would testify 

competently as to these facts. 

2. In late January 2016, Uber contacted Morrison & Foerster LLP (“MoFo”) seeking 

to retain MoFo to provide legal advice in connection with a potential corporate transaction, which 

would ultimately become Uber’s planned acquisition of two target companies, Ottomotto LLC 

(“Ottomotto”) and Otto Trucking LLC (“Otto Trucking”)1

 (collectively, “Otto”). Uber retained 

MoFo for the purpose of obtaining legal advice regarding potential litigation exposure arising out 

of the transaction, including and in particular, claims that could potentially be brought by Google 

against two of its founders, Anthony Levandowski and Lior Ron, who had left Google to found 

the target companies that ultimately became Ottomotto and Otto Trucking. 

3. Shortly after the initial contact, Uber retained MoFo for the purposes described in 

paragraph 2. Uber also retained separate counsel, Cooley LLP, to advise it on the legal, business, 

and financial terms of the transaction generally. I was one of the principal in-house attorneys at 

Uber with responsibilities connected with the legal advice described in paragraph 2. 

4. Otto was represented by the law firm O’Melveny & Myers LLP. Mr. 

Levandowski was represented personally by John Gardner of Donahue & Gardner LLP 

(“Donahue”). Mr. Ron was represented personally by Alisa Baker of Levine & Baker LLP 

(“Levine”). 

5. Uber authorized MoFo, on Uber’s behalf, to enter into a joint defense and common 

interest agreement with Otto, and subsequently with Mr. Levandowski and Mr. Ron. Uber 

 1

 While Uber acquired Ottomotto in August 2016, it has not acquired Otto Trucking. 

Case 3:17-cv-00939-WHA Document 378 Filed 05/08/17 Page 2 of 6
SUHR DECL. ISO DEFTS’ OPPOSITION TO MOTION TO COMPEL

Case No. 3:17-cv-00939-WHA 2

sf- 3766423

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 

entered into the joint defense and common interest agreement in light of the nature of the 

proposed transaction. The target companies were recently founded and run by former employees 

of Google. The target companies were also focused on self-driving technology, an emerging high 

profile technology space. Based on these factors the parties entered into a joint defense and 

common interest agreement in order to freely discuss legal risks and share legal analysis among 

the parties to the proposed transaction without waiving the privileges and risking disclosure of 

those discussions at some point in the future. 

6. The parties also contemplated the specific possibility that Google could bring 

claims arising out of Uber’s acquisition of Otto against some or all of the parties to the joint 

defense and common interest agreement. The parties agreed it was in their collective best 

interests to share certain confidential legal advice and analysis prepared by attorneys in 

anticipation of litigation, as well as confidential business, technical and other information in order 

to facilitate each party’s attorneys in providing legal advice and analysis, all so as to further the 

parties’ common interest in opposing and engaging in a joint defense, against any potential 

litigation. I understand that the joint defense and common interest agreement was entered into as 

of at least February 24, 2016, with the express understanding that the parties would work to 

memorialize in writing the joint defense and common interest agreement. I understand that 

Messrs. Levandowski and Ron, and Donahue and Levine, became parties to the joint defense and 

common interest agreement shortly thereafter. 

7. Recognizing that the parties were now party to a joint defense and common 

interest agreement, I kept any communications and information pertaining to the parties’ shared 

legal interests received from OMM, Otto, Messrs. Levandowski and Ron and their respective 

counsel at Donahue and Levine confidential and treated all such information as protected by the 

attorney-client privilege, attorney work product doctrine, and/or common interest doctrine. I have 

also spoken with all Uber in-house counsel listed in paragraph 13 below, and confirmed that each 

of them did, as well. 

8. I understand that on or about April 11, 2016, the parties executed the Joint 

Defense, Common Interest and Confidentiality Agreement (“JDA”). The JDA states that it 

Case 3:17-cv-00939-WHA Document 378 Filed 05/08/17 Page 3 of 6
SUHR DECL. ISO DEFTS’ OPPOSITION TO MOTION TO COMPEL

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

sf- 3766423

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 

memorializes the parties’ pre-existing understanding and oral agreement and confirms the terms 

and conditions thereof. I worked with MoFo on drafting, revising, and negotiating the written 

JDA. 

9. In order to facilitate MoFo’s legal advice and analysis for which it was retained as 

described above, Uber authorized MoFo to engage a third-party consultant, Stroz Friedberg, LLC 

(“Stroz”), to aid MoFo by investigating information from the founders of Otto and some of its 

employees, all of whom previously worked for Google. Uber also authorized MoFo to retain 

Stroz jointly with OMM, in connection with OMM’s representation of Otto. MoFo entered into 

an engagement agreement with Stroz as of March 4, 2016. 

10. While in-house counsel at Uber regularly advise on legal risks that stem from a 

proposed merger, acquisition, technology purchase, or the like, the retention of a consultant like 

Stroz to perform the investigation described above is atypical when aiding in the provision of 

legal advice for most acquisition diligence. However, in light of the litigation risks that the 

proposed acquisition presented (prior to any understanding of the facts informing those risks), as 

discussed in paragraph 5 above, Uber took the additional, unique step of authorizing the Stroz 

investigation, and would not have done so absent the litigation risk. 

11. Recognizing that Uber, Otto, Mr. Levandowski, and Mr. Ron were parties to a 

joint defense and common interest agreement, Stroz agreed to keep confidential all 

communications with MoFo, OMM, Uber, Otto, Messrs. Levandowski and Ron and their 

respective counsel at Donahue and Levine confidential and to treat all information which Stroz 

received as protected by the attorney-client privilege, attorney work product doctrine, and/or 

common interest doctrine. 

12. Stroz’s investigative work was guided by directives from MoFo, OMM, Donahue, 

and Levine regarding what topics to investigate and how Stroz should investigate these topics. 

MoFo provided these directives to Stroz after consulting with me and other in-house counsel at 

Uber. 

13. On August 5, 2016, Stroz provided its report (the “Report”) to MoFo, OMM, 

Donahue, and Baker. MoFo sent the Report to me, as well as other in-house counsel at Uber. 

Case 3:17-cv-00939-WHA Document 378 Filed 05/08/17 Page 4 of 6
SUHR DECL. ISO DEFTS’ OPPOSITION TO MOTION TO COMPEL

Case No. 3:17-cv-00939-WHA 4

sf- 3766423

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 

Angela Padilla, Esq., Andrew Glickman, Esq., Todd Hamblet, Esq., Christian Lymn, Esq., and 

Robert Wu, Esq., all of whom are in-house counsel at Uber, received copies of the Report. The 

Report is marked “Privileged & Confidential / Attorney Work Product.” The Report was 

password protected. 

14. I understand that, after issuing the Report, Stroz sent MoFo an Appendix of 

Exhibits to the Report. I do not recall receiving the Appendix of Exhibits until after the current 

litigation was filed. No Uber employee received the Appendix of Exhibits around the time that 

Stroz provided it to MoFo, and no Uber employee received it until after this above-captioned 

litigation was filed. I understand that no employee and specifically, no in-house counsel at Uber, 

received the Appendix of Exhibits until after this litigation was filed. 

15. I have kept confidential at all times the Report, the Appendix of Exhibits, and the 

information contained in the Report and Appendix of Exhibits, and have always treated these 

materials as covered by attorney-client privilege, attorney work product doctrine, and the 

common interest doctrine. Other than the Uber in-house counsel named in this declaration and 

Uber’s outside counsel of record in the above-captioned litigation, I have never shared the Report 

or the Appendix of Exhibits with any person, including any non-attorney at Uber. 

16. I have also spoken with all Uber attorneys who received a copy of the Report as 

reflected in paragraph 13 herein. Each of them has kept confidential at all times the Report and 

the information contained therein, and has always treated these materials as covered by attorneyclient privilege, attorney work product doctrine, and the common interest doctrine. None of them 

has ever shared the Report with any person, including any non-attorney at Uber, other than with 

Uber in-house counsel and Uber’s outside counsel of record in this litigation. Additionally, none 

of the Uber employees listed in paragraph 13 received the Appendix of Exhibits prior to initiation 

of this litigation. 

17. I did not receive, nor was I made aware of, any communications from Google, 

Waymo, or their counsel prior to the filings of the confidential arbitration matters filed against the 

founders of Otto that indicated they intended to bring legal action against Uber or Otto, or 

Case 3:17-cv-00939-WHA Document 378 Filed 05/08/17 Page 5 of 6
Case 3:17-cv-00939-WHA Document 378 Filed 05/08/17 Page 6 of 6