Orrick, Herrington & Sutcliffe LLP

The Orrick Building 

405 Howard Street 

San Francisco, CA 94105-2669 

+1 415 773 5700 

orrick.com 

Melinda Haag

E mhaag@orrick.com 

D +1 415 773 5495 

F +1 415 773 5759 

August 10, 2017 

Via ECF 

Hon. Jacqueline Scott Corley 

United States District Court 

Northern District of California

San Francisco Courthouse, Courtroom F 

450 Golden Gate Avenue 

San Francisco, CA 94102 

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

Dear Judge Corley: 

We represent Travis Kalanick in his individual capacity. Although Mr. Kalanick is not a party to 

this litigation and is not subject to Waymo’s motion to compel, we write to assert Mr. Kalanick’s 

important privacy rights and to address inaccurate statements contained in Waymo’s August 7, 

2017 letter brief. In short, Mr. Kalanick has already produced all responsive text messages located 

after extensive forensic analysis and manual eyes-on review of all text message data residing on 

his personal mobile device. Waymo’s motion to compel production of Mr. Kalanick’s responsive 

text messages is therefore moot, as production already has occurred. 

On June 29, 2017, on Mr. Kalanick’s behalf, Orrick caused an image of Mr. Kalanick’s personal 

Apple iPhone 7 to be created. The work was done by Stroz Friedberg in Orrick’s San Francisco 

office, and was observed by Allan Vogel, a forensic analyst retained by Orrick on Mr. Kalanick’s 

behalf. Decl. of Allan Vogel (“Vogel Decl.”) ¶ 3. Mr. Vogel used an industry standard forensic 

application to collect all text message data from the image of Mr. Kalanick’s iPhone, including 

deleted texts and fragments of deleted texts. Id. at ¶ 5. Orrick attorneys promptly conducted a 

manual line-by-line review of this text message data to identify messages between 

Mr. Levandowski and Mr. Kalanick. Decl. of Robert L. Uriarte (“Uriarte Decl.”) ¶ 3. The text 

message data identified during this comprehensive manual eyes-on review has already been 

produced to Waymo. Id. at ¶¶ 3-6. 

In addition to conducting a manual search specifically for text messages between Mr. Levandowski 

and Mr. Kalanick, Orrick attorneys also applied the party-litigants’ agreed-to ESI search terms to 

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Hon. Jacqueline Scott Corley 

August 10, 2017 

Page 3 

interest [is] substantial in light of the broad amount of data contained in...his cell phone,” United 

States v. Lara, 815 F.3d 605, 611-612 (9th Cir. 2016). 

“When the constitutional right of privacy is involved, the party seeking discovery must 

demonstrate a compelling need for discovery, and that compelling need must be so strong as to 

outweigh the privacy right when these two competing interests are carefully balanced.” Lawrence 

v. Hoban Mgmt., 305 F.R.D. 589, 591 (S.D. Cal. 2015). Moreover, “[b]ecause personal computers 

contain highly personal and sensitive material courts generally require a heightened showing of 

good cause” to justify an imaging order. Cefalu v. Holder, 2013 U.S. Dist. LEXIS 113485, *4 

(N.D. Cal. Aug. 12, 2013). Here, Mr. Kalanick’s substantial privacy rights far outweigh Waymo’s 

desire to explore the baseless supposition that there are additional text messages not already 

identified and produced on Mr. Kalanick’s behalf by counsel. See, e.g., Memry Corp. v. Ky. Oil 

Tech., N.V., 2007 U.S. Dist. LEXIS 104031, *10 (N.D. Cal. Mar. 19, 2007). 

Waymo’s motion does not come close to articulating any compelling need that outweighs 

Mr. Kalanick’s substantial privacy interests. Nor does Waymo’s motion put forth the heightened 

showing required to obtain a forensic image of a personal device. See id.; Cefalu, 2013 U.S. Dist. 

LEXIS 113485, *4. On the contrary, Waymo indiscriminately seeks production of every single 

byte of data on Mr. Kalanick’s iPhone, regardless of whether the data has any relevance to this 

case. Federal law does not countenance such invasive, harassing, and burdensome discovery 

requests. See, e.g., Fed. R. Civ. P. 26 (b)(1). Notably, the only reason Waymo argues it needs an 

image of Mr. Kalanick’s phone is to “independently verify whether [the auto-delete] setting...was 

actually in place for the entirety of the time period at issue.” Dkt. 1118 at p.1. If that is the 

information Waymo is after, it does not need to rifle through every picture, voicemail, and private 

personal communication on Mr. Kalanick’s phone to get it. Although Mr. Kalanick is under no 

obligation to do so, he is willing to voluntarily produce configuration files for his iPhone 7 

sufficient to show that the 30-day auto delete protocol was turned on at all times relevant. 

For the foregoing reasons, Mr. Kalanick respectfully submits that Waymo’s motion to compel 

production of Mr. Kalanick’s responsive text messages should be denied as moot, and that 

Waymo’s request for production of Mr. Kalanick’s iPhone or image thereof should be denied as 

overbroad, unduly burdensome, harassing, and violative of Mr. Kalanick’s constitutional privacy 

rights. 

Case 3:17-cv-00939-WHA Document 1154 Filed 08/10/17 Page 3 of 4
Hon. Jacqueline Scott Corley 

August 10, 2017 

Page 4 

Respectfully, 

/s/ Melinda Haag

Melinda Haag 

Walter Brown 

Attorneys for Travis Kalanick 

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