June 19, 2017

VIA ECF

Magistrate Judge Jacqueline Scott Corley

U.S. District Court for the Northern District of California

San Francisco Courthouse, Courtroom F - 15th Floor

450 Golden Gate Avenue, San Francisco, CA 94102

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

Dear Magistrate Judge Corley:

Non-party Anthony Levandowski submits the attached letter brief in response to Waymo’s 

opposition to Mr. Levandowski’s motion to quash portions of Waymo’s subpoena to Stroz 

Friedberg, LLC. See Dkt. 583 & 628. 

Respectfully submitted,

/s/ Ismail J. Ramsey

Ismail Ramsey

RAMSEY & EHRLICH LLP

Counsel for Non-Party Anthony Levandowski

cc: Counsel of record (via ECF); Special Master John Cooper

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Standing

Waymo begins by contesting Mr. Levandowski’s standing to quash the subpoena. Dkt. 628 at 2-

3. As Mr. Levandowski asserts privilege claims over the materials in Stroz’s possession, he 

plainly has standing. The “general rule,” as described by numerous courts, is that a third party 

has standing to seek to quash a subpoena to that third party when he raises “claims of privilege 

relating to the documents being sought.” Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 

299 F.R.D. 638, 643 (E.D. Cal. 2014); see also Dkt. 583 at 2-3 (citing cases). 

Waymo’s other contentions regarding standing mostly relate to the merits of Mr. Levandowski’s 

privilege claims. In making these arguments, Waymo insists that Mr. Levandowski has “never 

offered evidence” in support of the privileges claimed. Dkt. 628 at 2. This contention ignores 

the declarations filed by Mr. Levandowski’s own counsel and other parties to the common 

interest agreement, see Dkt. 370, 375, 376, 378, 380, 381, 383, as well as the fact that Mr. 

Levandowski has made an in camera submission substantiating his Fifth Amendment claims, see

Dkt. 538 (and accompanying in camera submission).

Finally, Waymo derides as “vague” and “non-specific” Mr. Levandowski’s arguments relating to 

privacy and relevancy. Dkt. 628 at 2. As we explained in our opening brief, Waymo’s requests 

seek entire “devices,” such as computers and cell phones, that Mr. Levandowski may have 

provided to Stroz. Such devices would almost surely contain materials that are not relevant to 

the case, but protected by Mr. Levandowski’s privacy rights and other privileges. Dkt. 583 at 8. 

We cannot spell out such claims in more detail in part because Mr. Levandowski has a Fifth 

Amendment right not to reveal the existence of responsive devices. See Dkt. 583 at 3-7. In any 

event, Mr. Levandowski clearly has standing to raise these objections. See, e.g., Belling v. DDP 

Holdings, Inc., 2013 U.S. Dist. LEXIS 198078 at *7-8 (C.D. Cal. May 30, 2013); Abu v. 

Piramco SEA-TAC, Inc., 2009 U.S. Dist. LEXIS 12626 at *3 (W.D. Wash. Feb. 5, 2009).

Intervention

Waymo also contests Mr. Levandowski’s right to intervene. Its primary argument seems to be 

that Mr. Levandowski has already had to intervene in this matter several times. Dkt. 628 at 3. 

That is of no moment—if Waymo persists in propounding discovery demands that violate Mr. 

Levandowski’s privileges, he is entitled under the law to continue to resist such demands.

Waymo also claims that Mr. Levandowski’s motion was not timely because it was not filed 

“prior to the May 25 return date.” Dkt. 628 at 3. That contention is disingenuous. As Waymo 

acknowledges, Waymo designated just two requests (Nos. 3 & 30) as expedited for return on

May 25 (Dkt. 628 at 1), and Mr. Levandowski does not object to those requests. Id. at 3 n.4. In 

meet and confers, Uber confirmed that the return date for the non-expedited requests and the 

deadline for Mr. Levandowski to file a motion to quash was June 9. See Dkt 570 n.2; see also

Ramsey Declaration (filed herewith) at ¶¶ 2-3. Mr. Levandowski filed his motion on June 9 —

before Stroz produced records in response to the subpoena. In any case, contrary to Waymo’s 

suggestion, there is no requirement that a litigant in Mr. Levandowski’s position move to 

intervene before the date on which the subpoenaed party must respond. In re Grupo Unidos Por 

El Canal S.A., No. 14-mc-80277-JST (DMR), 2015 U.S. Dist. LEXIS 52358 at *14 n.4 (N.D. 

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Cal. Apr. 21, 2015) (finding no “authority for the proposition that third-party intervenors must 

file a motion to quash a subpoena within the same 14-day deadline that a party must meet when 

objecting to a subpoena . . . .”). 

The Subpoena to Stroz Should Be Quashed

The issues that underlie the merits of Mr. Levandowski’s claims have been briefed several times. 

See, e.g., Dkt. 574 & 583. Rather than repeating that briefing here, we make a few short points.

First, Waymo continues to try to dance around the jurisprudence establishing that parties to a 

common interest agreement may confidentially communicate amongst themselves in a variety of 

fashions. Waymo’s attempts to distinguish the cases cited in our previous briefs, see Dkt. 628 at 

4-5, ignore both binding caselaw, such as the Ninth Circuit’s decision in United States v. 

Gonzalez, 669 F.3d 974 (9th Cir. 2012), and core principle enshrined in the cases cited—that a 

common interest privilege may protect a communication between one party and another party’s 

attorney, see Dkt. 583 at 4-5; Dkt. 574 at 1-3. That binding legal principle defeats the main 

thrust of Waymo’s arguments: Mr. Levandowski’s communications with Stroz were, in fact, 

privileged under the common interest cases cited herein and in our other briefs.

Second, Waymo contends that Mr. Levandowski has no right to protect materials in the 

possession of a third party, Stroz. Dkt. 628 at 5-7. Waymo’s position cannot be reconciled with

Fisher v. United States, 425 U.S. 391 (1976), and its progeny. Under those cases, a privilegeholder unquestionably may protect from disclosure materials held by a third party—in Fisher

and in United States v. Sideman & Bancroft, LLP, 704 F.3d 1197 (9th Cir. 2013), the third party 

was an attorney—so long as the materials were communicated to the third party in a privileged 

manner. Fisher, 425 U.S. at 405; Sideman & Bancroft, 704 F.3d at 1101-02; see also In re Katz, 

623 F.2d 122, 126 (2nd Cir. 1980); Dkt. 202 at 8. Based on these binding precedents, the same 

principle governs here: although Stroz obviously is not Mr. Levandowski’s own attorney, it 

served as the agent for an attorney engaged with Mr. Levandowski in a common interest 

agreement, which “establishes an implied attorney-client relationship” between each of the 

attorneys and parties involved. United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000). Thus, 

much like the conventional Fisher case (involving a client and his personal attorney), to the 

extent Mr. Levandowski communicated materials to Stroz, such communication was part of an 

extended attorney-client relationship—as a result of the joint defense doctrine—and the materials 

are therefore protected from disclosure.

Third, Waymo argues that Mr. Levandowski cannot have any privilege with respect to materials 

“created by Stroz” that reference information provided by Mr. Levandowski. Dkt. 628 at 7. This 

would be a surprising result. As the Fisher Court recognized, the purpose of the attorney-client 

privilege is “to encourage clients to make full disclosure to their attorneys.” 425 U.S. at 403. 

Similarly, “the rationale for the joint defense rule” is that “persons who share a common interest 

in litigation should be able to communicate with their respective attorneys and with each other to 

more effectively prosecute or defend their claims.” Gonzalez, 669 F.3d at 978. These purposes

would be radically undermined if privilege protections were lost merely because the 

communication in question was recorded or summarized by the attorney receiving it—and that is 

not the law. See, e.g., Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964) 

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(protecting under the attorney-client and joint-defense privileges attorneys’ memoranda 

describing communications from clients); Bio-Rad Laboratories, Inc. v. Pharmacia, Inc., No. C88-2021-DLJ (JSB), 1991 U.S. Dist. LEXIS 3365 at *14 (N.D. Cal. Jan. 3, 1991) (finding a 

writing protected by the attorney-client privilege because it reflected the contents of an attorneyclient telephone call). The logic and reasoning of Fisher and its progeny control: if Mr. 

Levandowski is privileged to prevent the disclosure of materials he may have provided to Stroz 

under a common interest agreement, he must also be privileged to prevent the disclosure of 

writings that reflect or record information and materials he may have provided to Stroz.

Fourth, Waymo misinterprets Mr. Levandowski’s privacy argument. Mr. Levandowski does not 

claim a privacy interest in “files he [allegedly] stole from Waymo.” Dkt. 628 at 8. The issue is 

that Waymo has requested entire devices that may contain or may once have contained the files it 

seeks. See, e.g., Request 12. Of course, it is not difficult to imagine a device that contains some 

“files” relevant to Waymo’s case but also many other completely irrelevant, yet nonetheless 

private or privileged, materials. See e.g., Riley v. California, 134 S. Ct. 2473, 2489-91 (2014) 

(recognizing that electronic devices have “immense storage capacity” and store “many distinct 

types of information,” including “a broad array of private information”); United States v. 

Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010) (en banc) (describing 

the care with which law enforcement and judicial officers must approach searches of 

electronically-stored information, even when there is probable cause for a search warrant, to 

avoid unconstitutionally broad searches); Kelly v. San Jose, 114 F.R.D. 653, 656 (N.D. Cal. 

1987) (“federal courts generally should give some weight to privacy rights that are protected by 

state constitutions or state statutes”); Tien v. Superior Court, 139 Cal. App. 4th 528, 539 (Cal. 

Ct. App. 2006) (“The right of privacy is an ‘inalienable right’ secured by article I, section 1 of 

the California Constitution. It protects against the unwarranted, compelled disclosure of various 

private or sensitive information regarding one’s personal life . . . .”). To the extent responsive 

devices exist, Waymo has no legitimate reason to obtain the irrelevant and/or private matters, 

and the courts will not require the production of such devices without also requiring some form 

of examination protocol. Dkt. 583 at 8 (citing cases); see also Bos. Sci. Corp. v. Lee, No. 5:14-

mc-80188-BLF-PSG, 2014 U.S. Dist. LEXIS 107584, at *20 (N.D. Cal. Aug. 4, 2014) (granting 

motion to quash as “[t]he risks attached to forensic imaging are simply too great to permit such 

unchecked discovery”). Further, the courts recognize that a protective order is not always 

sufficient to protect privacy and proprietary interests, particularly when such information is 

sought from a non-party. See, e.g., Universal Delaware, Inc. v. Comidata Network, Inc., 2011 

U.S. Dist. LEXIS 28963, at *7, 18 (M.D. Tenn. Mar. 21, 2011) (“there is a constant danger 

inherent in disclosure of confidential information pursuant to a Protective Order . . . .”); In re 

Vitamins Antitrust Litig., 267 F. Supp. 2d 738, 741–42 (S.D. Ohio 2003)).

Finally, Waymo’s complaint that Mr. Levandowski has not identified specific materials to which 

his privacy rights might apply, Dkt. 628 at 8, is unfair and premature. At this juncture, the very 

existence of any devices that might be relevant to this dispute is information subject to a 

privilege claim. Mr. Levandowski could not specifically raise his privacy rights without 

simultaneously waiving his Fifth Amendment rights. The courts do not require such a Hobson’s 

choice. See, e.g., Simmons v. United States, 390 U.S. 377, 391-94 (1968); Bittaker v. Woodford, 

331 F.3d 715, 723-24 (9th Cir. 2003) (en banc); United States v. Khan, 309 F. Supp. 2d 789, 

798-800 (E.D. Va. 2004); see also Garrity v. New Jersey, 385 U.S. 493, 496 (1967).

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