United States District Court

For the Northern District of California

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

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WAYMO LLC,

Plaintiff,

 v.

UBER TECHNOLOGIES, INC., et al.,

Defendants. /

No. C 17-00939 WHA

ORDER DENYING MOTION

TO MODIFY PRIVILEGE LOG

REQUIREMENTS BASED ON

FIFTH AMENDMENT

INTRODUCTION

In this action for trade secret misappropriation, patent infringement, and unfair

competition, a non-party moves to prevent defendants from providing a conventional privilege

log based on Fifth Amendment and attorney-client grounds. The motion is DENIED.

STATEMENT

A cornerstone of the case by Waymo LLC is its evidence that non-party Anthony

Levandowski downloaded over 14,000 files containing its trade secrets and proprietary

information pertaining to self-driving cars to his company-issued laptop, transferred them to a

portable storage device, wiped the laptop clean, then promptly left his position at Waymo with

the downloads to start his own competing autonomous-vehicle ventures, defendants Ottomotto

LLC and Otto Trucking LLC. Shortly thereafter, defendant Uber Technologies, Inc., acquired

the new ventures for $680 million. Uber then quickly progressed in its own development of

competing self-driving vehicles. This, Waymo contends, is how Uber accomplished in only

nine months what it took Waymo seven years to do.

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 1 of 13
United States District Court

For the Northern District of California

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

2

Waymo has moved for provisional relief against defendants. A hearing on that motion

remains scheduled for May 3. On March 16, after a case management conference, an order

approved a plan for expedited discovery (Dkt. No. 61). That order required, among other

things, that defendants produce by March 31 “all files and documents downloaded by Anthony

Levandowski . . . before leaving plaintiff’s payroll and thereafter taken by [him],” and “the card

reader, thumb drive, or other media used for the downloads, as well as all subsequent emails,

memoranda, PowerPoints, text messages, or notes that have forwarded, used, or referred to any

part of said downloaded material” (id. at ¶ 4).

On March 28, defendants requested a non-public conference to address a “confidential

matter . . . to protect legitimate privacy concerns” (Dkt. No. 122 at 2). Defendants did not

disclose the subject of the requested conference in advance to either Waymo or the Court. 

Nevertheless, the Court convened the conference provisionally under seal with the caveat that

the transcript might be made public afterwards. Counsel for both sides appeared but new,

separate counsel appeared for non-party Levandowski. (The transcript from the conference

became public soon thereafter.)

During the conference, defense counsel indicated that, in the process of acquiring

Levandowski’s companies, Uber obtained a “due diligence” report prepared by a “third party”

that may have referenced allegedly downloaded documents. To facilitate access to information

held by Levandowski, both sides of the transaction and, this order assumes for the sake of

argument, the third party entered into a joint defense agreement, in an effort to cloak the due

diligence review by the third party under a claim of privilege. Evidently, some or all of the

14,000-plus files downloaded from Waymo were then disclosed to the third party or to Uber,

although that is an interpretation of the circumstances and not a direct admission.

At the conference, counsel for defendants further indicated that they intended to put that

report on a privilege log. Pursuant to a standing order, privilege logs must identify, with respect

to each communication for which a claim of privilege is made (Judge Alsup’s Supplemental

Order to Order Setting Initial CMC in Civil Cases (effective Mar. 17, 2016),

http://www.cand.uscourts.gov/whaorders):

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 2 of 13
United States District Court

For the Northern District of California

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

3

(a) all persons making or receiving the privileged or protected

communication;

(b) the steps taken to ensure the confidentiality of the communication,

including affirmation that no unauthorized persons have received

the communication;

(c) the date of the communication; and

(d) the subject matter of the communication.

Additionally, privilege logs must be sufficiently detailed and informative to justify the claimed

privilege(s), and indicate the locations where any purportedly privileged documents were found.

Counsel for Levandowski, however, took the position that disclosing even the identity of

the third party who had prepared the due diligence report on a privilege log would compromise

Levandowski’s Fifth Amendment privilege against self-incrimination. Counsel for

Levandowski therefore requested that defense counsel be prohibited from making any such

disclosure. The undersigned judge declined to grant the requested relief during the conference

and indicated that Levandowski’s Fifth Amendment argument should be made via formal

motion, if at all.

Consequently, Levandowski now makes the instant motion based on claims of Fifth

Amendment privilege and attorney-client privilege (Dkt. No. 147). The motion record is thin

but includes a joint defense, common interest and confidentiality agreement (“joint defense

agreement”), dated in April 2016, between the two sides in Uber’s acquisition of

Levandowski’s companies (Dkt. No. 147-1). The joint defense agreement referred to “potential

investigations, litigation, and/or other proceedings relating to the proposed transactions.” The

“litigation” or “other proceedings” under contemplation went unidentified. The agreement

stated that the parties had a “common interest in opposing” such proceedings. It recited that the

parties had already shared with each other “confidential and proprietary documents containing

financial, operating and planning data.” The agreement continued with classification provisions

to maintain secrecy. It made no mention, however, of the Fifth Amendment or of how to deal

with privilege logs.

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 3 of 13
United States District Court

For the Northern District of California

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

4

Waymo opposes the motion. Defendants — despite defense counsel’s insistence that he

“would love to put Mr. Levandowski on the stand” and asides that Levandowski’s silence has

had an “adverse impact” on defendants (e.g., Dkt. No. 131 at 16:3–16:11) — do not oppose

Levandowski’s motion. This order follows briefing and oral argument.

ANALYSIS

It took considerable effort to pin down the actual relief sought by this motion. The

moving papers conveyed mixed messages. The notice of motion stated that the motion sought

to prohibit Uber “from disclosing any information provided by Levandowski in the course of

the [joint defense agreement], and specifically . . . information concerning the due diligence

review conducted by a third party under that agreement, including but not limited to the identity

of the third party who conducted any such due diligence review, whether Mr. Levandowski

possessed any documents that were reviewed by the third party, and the identity of any of Mr.

Levandowski’s possessions that may have been reviewed” (Dkt. No. 147 (emphasis added)).

The memorandum of points and authorities, however, requested only “a modification of

the Court’s standing privilege log requirement” on the basis that it “would improperly compel

Uber to disclose information protected by a common interest privilege and thereby undermine

Mr. Levandowski’s Fifth Amendment right against compelled production as recognized by the

Supreme Court in United States v. Hubbell, 530 U.S. 27 (2000), and Fisher v. United States,

425 U.S. 391 (1976)” (id. at 1). Specifically (id. at 2):

Mr. Levandowski asks that Uber’s counsel . . . be relieved of any

obligation to provide detail concerning (1) the identity of the thirdparty who conducted any such due diligence review, (2) whether

Mr. Levandowski possessed any documents that were reviewed by

the third party, or (3) the identity of any of Mr. Levandowski’s

possessions that may have been reviewed.

This is necessary for two reasons. First, ordering public disclosure

of these facts on the privilege log would impair Mr.

Levandowski’s attorney-client privilege because it would compel

disclosures of confidences shared by Mr. Levandowski with his

own counsel that were later communicated with other counsel as

part of an enforceable joint defense and common interest privilege

agreement. Second, requiring disclosure of these facts would

separately violate Mr. Levandowski’s Fifth Amendment right.

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 4 of 13
United States District Court

For the Northern District of California

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

5

Thus, from the papers, the scope of this motion remained unclear because the usual information

accompanying a claim of privilege (namely, the particulars traditionally disclosed on a privilege

log) turned out to be what Levandowski seeks to conceal. We were, as a result, uninformed as

to who prepared the due diligence report and why; what it referenced; the extent, if any, to

which the author(s) of the due diligence report reviewed any or all of the downloads; to whom

the report was disclosed; and for what purpose each recipient used it. 

At the hearing, the judge raised these questions and counsel for Levandowski finally

turned over for in camera review a proposed privilege log containing 42 specific line items that

Levandowski would partially redact. All 42 items concern the due diligence report (which

report was not supplied, even for in camera review). The proposed redactions would conceal

the identity of the third party that prepared the report, as well as descriptions of items reviewed

during its preparation. Even in its unredacted form some questions would remain (such as why

the report was prepared, whether it referenced any of the downloaded files, and for what

purpose each recipient used it). Counsel for Waymo then received a redacted version of the log

and, as expected, objected to the redactions. 

* * *

Turning to the merits, a very practical point deserves emphasis up front. The purpose of

a privilege log in our federal system is to list the materials withheld under any claim of

privilege and to specify certain time-honored particulars as to each item withheld. This is the

first step in the process of adjudicating a claim of privilege. The second step is to determine

whether the privilege actually applies and has not been waived. The system would become

compromised and much abused if a party could simply omit privilege log disclosures when

informed that the information disclosed might incriminate a wrongdoer.

The joint defense agreement in question provided that the parties would claim the

privileges recognized by the agreement but surely contemplated that they would do so in the

customary way — via a privilege log. Again, nothing in the agreement purported to muzzle the

parties when it came to supplying a privilege log in order to claim a privilege (not to mention

that any such provision might well be void as against public policy as an obstruction of justice). 

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 5 of 13
United States District Court

For the Northern District of California

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

6

Nothing in the agreement called out a privilege against self-incrimination or referred to the Fifth

Amendment, much less purported to obligate a party to avoid incriminating the other party.

Nevertheless, Levandowski’s motion insists that attorneys for Uber, a signatory to the

joint defense agreement, became his personal lawyers, and that the Fifth Amendment somehow

prohibits them from revealing any information, even on a privilege log, that would help a

prosecutor connect the dots to him.

Much of Levandowski’s memorandum stresses uncontroversial premises. First, the

Fifth Amendment privilege against self-incrimination can be asserted in a civil proceeding

when “the person invoking the privilege reasonably believes that his disclosures could be used

in a criminal prosecution, or could lead to other evidence that could be used in that manner.” 

Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000). Second, an

individual may invoke the Fifth Amendment to avoid producing documents on the basis that the

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

States v. Hubbell, 530 U.S. 27, 36 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976). 

Third, the attorney-client privilege protects “[c]onfidential disclosures by a client to an attorney

made in order to obtain legal assistance,” so as to “encourage clients to make full disclosure to

their attorneys.” Fisher, 425 U.S. at 403. Fourth, the joint-defense privilege or “common

interest” privilege can extend the attorney-client privilege such that it “protects not only the

confidentiality of communications passing from a party to his or her attorney but also ‘from one

party to the attorney for another party where a joint defense effort or strategy has been decided

upon and undertaken by the parties and their respective counsel.’” United States v. Gonzalez,

669 F.3d 974, 978 (9th Cir. 2012) (quoting United States v. Austin, 416 F.3d 1016, 1021 (9th

Cir. 2005), and United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000)).

It does not follow from the foregoing premises, however, that compelling Uber to

complete a conventional privilege log would violate Levandowski’s Fifth Amendment privilege. 

Contrary to Levandowski’s position, neither Hubbell nor Fisher so held, and Fisher expressly

rejected the theory.

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 6 of 13
United States District Court

For the Northern District of California

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

*

 This order recognizes that in United States v. Sideman & Bancroft, LLP (a decision neither side

mentioned), our court of appeals stated that, under Fisher, “[an attorney] does not have to produce [documents]

if doing so violates [a client’s] Fifth Amendment rights.” 704 F.3d 1197, 1201–02 (9th Cir. 2013). While this

language superficially appears to support Levandowski’s position here, the Supreme Court in Fisher expressly

held that a client’s “Fifth Amendment privilege is . . . not violated by enforcement of [document] summonses

directed toward their attorneys.” Fisher, 425 U.S. at 397. Our court of appeals has recognized as much. 

Beckler v. Superior Court, Los Angeles Cty., 568 F.2d 661, 662 (9th Cir. 1978) (quoting the aforementioned

holding as the “clear[] announce[ment]” of the Supreme Court). This order follows Fisher’s express holding.

7

In Hubbell, the Supreme Court held in relevant part that, for Fifth Amendment purposes,

“the act of producing documents in response to a subpoena may have a compelled testimonial

aspect,” since “‘the act of production’ itself may implicitly communicate ‘statements of fact,’”

including admissions regarding the existence, possession or control, or authenticity of

documents. 530 U.S. at 36. As stated, this is an uncontroversial premise here.

In Fisher, taxpayers under investigation by the Internal Revenue Service transferred

documents to their attorneys retained for the investigation. The IRS sought to compel the

attorneys to produce those documents, and the attorneys refused based on, among other things,

their clients’ Fifth Amendment privilege and the attorney-client privilege. Fisher, 425 U.S. at

393–95. Significantly, the Supreme Court held that “compelled production of documents from

an attorney does not implicate whatever Fifth Amendment privilege the taxpayer might have

enjoyed from being compelled to produce them himself.” Id. at 402 (emphasis added). The

documents in question could be subpoenaed from the attorneys “without compulsion on the

taxpayer. The protection of the Fifth Amendment [was] therefore not available.” Id. at 398–99

(emphasis added). In other words, “The taxpayer’s privilege under this Amendment [was] not

violated . . . because enforcement against a taxpayer’s lawyer would not ‘compel’ the taxpayer

to do anything and certainly would not compel him to be a ‘witness’ against himself.” Id. at

397 (emphasis added). In fact, Fisher vindicated two district court decisions permitting the

government to compel attorneys to produce their clients’ documents, notwithstanding the

latter’s protests on Fifth Amendment grounds.*

Counsel for Levandowski quote Fisher for the proposition that, “papers, if unobtainable

by summons from the client, are unobtainable by summons directed to the attorney by reason of

the attorney-client privilege.” Id. at 405. Thus, “when the client himself would be privileged

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 7 of 13
United States District Court

For the Northern District of California

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

8

from production of [a] document . . . the attorney having possession of the document is not

bound to produce.” Id. at 404. Even though Fisher clearly explained that the attorneys were

immunized by reason of the attorney-client privilege, Levandowski misconstrues the foregoing

snippets from Fisher as holding that “the lawyer stands in the shoes of his client when it comes

to invoking the Fifth Amendment privilege” (e.g., Dkt. No. 147 at 7–8). 

This misinterpretation of Fisher erroneously conflates the Fifth Amendment and

attorney-client privileges. To repeat, “it is not the [client’s] Fifth Amendment privilege that

would excuse the Attorney from production.” Fisher, 425 U.S. at 396. Although Fisher

referenced the Fifth Amendment privilege to determine the extent of the attorney-client

privilege under certain circumstances, it did not lend “Constitutional dimensions” to the latter. 

Beckler, 568 F.2d at 662 & n.2. Rather, it was the policy concern underlying the attorney-client

privilege that drove the holding in Fisher. Specifically, a client with documents privileged

against production by the Fifth Amendment “will then be reluctant to transfer possession to the

lawyer unless the documents are also privileged in the latter’s hands.” Fisher, 425 U.S. at

403–04. Thus, the attorney-client privilege immunizes a lawyer against compelled production

if two requirements are met. First, the client must be privileged against production of the

document in question, “either as a party at common law” or under the Fifth Amendment. 

Second, the client must have transferred the document in question to the attorney “for the

purpose of obtaining legal advice.” Id. at 404–05.

Importantly, despite acknowledging that an act of production has “communicative

aspects” like tacit concession of a document’s existence or location (a point counsel for

Levandowski repeatedly emphasize here), Fisher never suggested that conventional privilege

log requirements could be avoided on that basis. Our court of appeals, moreover, has

acknowledged that claims of privilege against the production of particular documents — even

under the Fifth Amendment — may require “targeted support” precisely like a privilege log or

submission of the documents for in camera review. United States v. Bright, 596 F.3d 683,

691–92 (9th Cir. 2010). In short, Levandowski’s suggestion that mere invocation of the Fifth

Amendment can automatically supplant privilege log requirements is baseless.

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 8 of 13
United States District Court

For the Northern District of California

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

9

Levandowski’s motion cites three non-binding decisions for the proposition that “the

requirement of a detailed privileged log must yield to the constitutional right to be free from

forced self-incrimination” (Dkt. No. 147 at 2–3, 12). All three decisions, however, are

distinguishable from our case because they relieved only individuals asserting their Fifth

Amendment privilege from the requirement of a detailed privilege log under the specific

circumstances of their respective cases. See United States SEC v. Chin, No.

12-cv-01336-PAB-BNB, 2012 U.S. Dist. LEXIS 182252, at *26 (D. Colo. Nov. 29, 2012)

(Judge Boyd Boland); In re Syncor ERISA Litig., 229 F.R.D. 636, 649 (C.D. Cal. 2005) (Judge

Rosalyn Chapman); In re Fustolo, No. 13–12692–JNF, 2015 WL 9595421, at *5 (Bankr. D.

Mass. Dec. 31, 2015) (Judge Joan Feeney). None support Levandowski’s position that

requiring others with whom he did business, even if under a joint defense agreement, to supply

typical privilege log information would be tantamount to compelling Levandowski to selfincriminate. Under the facts of our case, as stated, no binding authority supports

Levandowski’s suggestion that his Fifth Amendment privilege necessarily supersedes typical

privilege log requirements.

Levandowski’s arguments seem to suggest that, even though Fisher did not consider

privilege logs, its holding should apply here because the privilege log disclosures at issue are

“testimonial” in the same sense that actually producing the due diligence report would be. As

the party asserting the attorney-client privilege, Levandowski “has the burden of establishing

the relationship and privileged nature of the communication.” United States v. Richey, 632 F.3d

559, 566 (9th Cir. 2011). He has not carried that burden here.

First, the identity of the third party that prepared the report is a fact known to Uber, not

a communication between Levandowski and his attorney, much less a communication made for

the purpose of obtaining legal advice. As such, it cannot be concealed by any attorney-client

privilege, including under Fisher. See Fisher, 425 U.S. at 403 (the attorney-client privilege

“protects only those disclosures necessary to obtain informed legal advice which might not have

been made absent the privilege”); Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981)

(“The [attorney-client] privilege only protects disclosure of communications; it does not protect

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 9 of 13
United States District Court

For the Northern District of California

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

10

disclosure of the underlying facts by those who communicated with the attorney.”); Richey, 632

F.3d at 566 (“The attorney-client privilege protects confidential communications between

attorneys and clients, which are made for the purpose of giving legal advice.”).

Second, the motion record fails to show that Levandowski communicated to his attorney

in confidence, and for the purpose of obtaining legal advice, either (1) whether the third party

reviewed documents in Levandowski’s possession, or (2) the identity of any other items in

Levandowski’s possession reviewed by the third party. Syncor, a decision cited by

Levandowski, actually illustrates the error of his suggestion that the aforementioned

information falls within the ambit of the attorney-client privilege. In Syncor, a defendant

attempted to claim attorney-client and joint-defense privileges over documents prepared during

due diligence “solely for the business purpose of a potential merger.” Judge Rosalyn Chapman

rejected the claim, concluding that such documents “cannot fall within the ambit of the

attorney-client privilege, which protects only communications between a lawyer and client.” 

Syncor, 229 F.R.D. at 644–45 (quotation omitted). So too here.

On appeal, Levandowski may argue that he transferred incriminating documents via his

attorney to the third party, not for the preparation of any ordinary due diligence report, but

specifically so that counsel for Uber could evaluate the extent to which Levandowski would

arrive with attendant liabilities. Thus, Levandowski may contend, both the transfer and the

report itself were “for the purpose of obtaining legal advice.” Although that proposition was

not advanced here in the district court, given our expedited schedule, this order anticipates the

possibility and explains why it, too, would fail. As stated, its factual predicates are not proven

up with a sworn record. For example, nothing under oath provides any specific information as

to the purpose or subject of the due diligence report (other than, of course, the mere fact that it

is described as a “due diligence report”). This alone should be dispositive. Moreover, under

the umbrella of this argument, a litigant could abuse the attorney-client privilege to conceal

wrongdoing (like the theft and sale of trade secrets) so long as they cleverly passed it on as part

of “due diligence.” No binding authority supports such an extraordinary result.

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 10 of 13
United States District Court

For the Northern District of California

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

11

Third, even if the specific information Levandowski seeks to redact could be construed

as confidential attorney-client communications, it is not testimonial within the meaning of the

Fifth Amendment. See Fisher, 425 U.S. at 410 (whether “tacit averments . . . are both

‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment . . . depend[s]

on the facts and circumstances of particular cases”). As stated, this Court reviewed the

requested redactions in camera and concluded that none of the information at issue constitutes

self-incriminating testimony, implicit or otherwise, from Levandowski. To the extent that the

information is arguably testimonial, it is clear that Uber, not Levandowski, would be the one

testifying on the privilege log in question.

Fourth, the policy considerations underlying Fisher counsel against application of the

attorney-client privilege here. As stated, the record does not show that Levandowski

communicated the privilege log information at issue in confidence to his attorney for the

purpose of obtaining legal advice. Indeed, if Levandowski transferred any incriminating

documents to the third party, it would seem he did so for the purpose of selling his ventures to

Uber for $680 million. In contrast, Fisher involved individuals who transferred documents to

their personal attorneys for legal advice in connection with IRS investigations. It did not

involve a joint defense agreement. Not did it involve presenting documents to a non-lawyer. 

Nor did it involve presenting documents to a consultant for due diligence by the other side in an

acquisition. Fisher is very far removed from the circumstances of our case, which simply do

not involve the kind of client-attorney communications that Fisher intended to protect. 

Levandowski has thus failed to justify his requests to withhold privilege log information under

Fisher. See id. at 403 (“[S]ince the [attorney-client] privilege has the effect of withholding

relevant information from the fact-finder, it applies only where necessary to achieve its purpose. 

Accordingly it protects only those disclosures necessary to obtain informed legal advice which

might not have been made absent the privilege.”).

Levandowski’s motion cites the California Rules of Professional Conduct and our Civil

Local Rules for the general proposition that attorneys are ethically required to avoid disclosing

a client’s “confidences” or “secrets” — “unless an appropriate court order is obtained by the

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 11 of 13
United States District Court

For the Northern District of California

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

12

requesting party” (Dkt. No. 147 at 8–9). The suggestion that the privilege log at issue here

would violate defense counsel’s ethical obligation to protect Levandowski’s “confidences” or

“secrets” is a non-starter because the expedited discovery order dated March 16 is an

“appropriate court order” that, according to Levandowski’s own argument, supersedes generic

countervailing ethical obligations.

In summary, Levandowski has not carried his burden to show that any privilege justifies

his requested relief. Any remaining argument based on the joint defense agreement also fails

because the joint-defense privilege “presupposes the existence of an otherwise valid underlying

privilege, such as the attorney-client privilege, which has not been shown to be present.” See

Syncor, 229 F.R.D. at 645 (citing Henke, 222 F.3d at 637). 

At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a

claim of privilege. That traditional privilege log requirements should be verboten merely

because they might connect the dots back to a non-party in a possible criminal investigation is a

sweeping proposition under which all manner of mischief could be concealed.

We are still at the privilege log stage. There will be time enough to argue soon over

whether the due diligence report itself must be produced, but for now that report must be put on

a privilege log in the conventional way — without any of the redactions requested by counsel

for Levandowski.

CONCLUSION

For the foregoing reasons, Levandowski’s motion is DENIED. 

1. By 11:00 P.M. TODAY, defendants shall serve a privilege log complete as to all

items unaffected by this motion.

2. By APRIL 13 AT 5:00 P.M., defendants shall serve a privilege log complete as to

all items affected by this motion unless the court of appeals extends the deadline.

3. Since it appears that the due diligence report is the main item at issue, the

following procedure will be used to move the process along. By APRIL 14 AT NOON, plaintiff

shall move, if it wishes to do so at all, to compel production of the report. Defendants and

Levandowski shall have until APRIL 21 AT NOON to oppose, shall submit a proper sworn record

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 12 of 13
United States District Court

For the Northern District of California

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

13

as to all necessary predicates, and shall submit the full report (with attachments) for in camera

review. Plaintiff may reply by APRIL 25 AT NOON. The briefs should address the possibility

that discovery into the predicates for any privilege may be allowed.

Should counsel file any petition for a writ in the court of appeals, please take into

account that this civil action includes claims for patent infringement. 

The proposed privilege log with requested redactions submitted for in camera review

shall remain under seal for the court of appeals. This order addresses only the Fifth

Amendment argument and is without prejudice to any argument that the privilege log is

otherwise incomplete.

IT IS SO ORDERED.

Dated: April 10, 2017. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:17-cv-00939-WHA Document 202 Filed 04/10/17 Page 13 of 13