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May 23, 2017

Magistrate Judge Jacqueline Scott Corley

USDC, 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., N.D. Cal. Case No. 3:17-cv-00939-WHA

Dear Magistrate Judge Corley:

Waymo respectfully requests that Anthony Levandowski be ordered to produce a log identifying, on 

a document-by-document basis, information being withheld under any claim of privilege, including 

the Fifth Amendment, in response to RFP No. 3 of Waymo’s April 9th subpoena.

Background: On April 9th, Waymo served on Mr. Levandowski a document and deposition

subpoena. (Ex. 1 (“Subpoena”).) Judge Alsup ruled that RFP Nos. 1 and 3 were enforceable (4/12/17 

Hr’g Tr. at 72:2-4) and ordered Mr. Levandowski to produce documents responsive to those requests

at his April 14th deposition (id. at 76:4-14.) As pertinent here, RFP No. 3 of the Subpoena requests 

“All communications between You and Uber between January 2015 and August 2016.” (Ex. 1.) 

The Court also ordered Mr. Levandowski to initially submit his Fifth Amendment privilege log in 

camera by April 19th, so that Judge Alsup could determine whether the log itself was incriminating. 

(Id. at 78:21-79:5.) Judge Alsup rejected the argument that a privilege log was not necessary to 

support assertion of the Fifth Amendment. (Id. at 77:22-78:2 (“I never heard of that. Typically it is 

in my court, . . . under your theory, all kinds of wrongdoing could go unchecked . . . .”); see also id.

at 79:1-5.) Judge Alsup also ordered that with his in camera submission, Mr. Levandowski must

“give the other side enough of the argument so that they can respond to it.” (Id. at 79:13-14.)

Mr. Levandowski violated Judge Alsup’s Orders in several respects. First, Mr. Levandowski

produced no documents on April 14th as ordered, delaying his first production until April 24th and 

failing to complete his production until May 11th, almost a month late. (See Ex. 2.) Mr. Levandowski 

also failed to provide sufficient information to challenge his assertions of privilege as ordered. 

Instead, Mr. Levandowski provided only a high-level legal brief that purports to “discuss the general 

legal principles that should guide the Court’s in camera consideration . . . .”1 (Dkt. 244 at 2.) As 

Waymo argued in a April 21st response, this is insufficient. (Dkt. 250.) It also fails to satisfy Judge 

Alsup’s requirements for justifying an asserted privilege (4/12/17 Hr’g Tr. at 79:13-14, 77:22-78:2; 

see also Standing Order at ¶ 16.) To date, no ruling has been made on the adequacy of Mr. 

Levandowski’s in camera or public submissions.

Without an adequate privilege log, Waymo cannot meaningfully analyze what Mr. Levandowski is 

 

1

 Waymo understands that Mr. Levandowski has supplemented his in camera submission, but 

Waymo has received no further information regarding the asserted privileges.

Case 3:17-cv-00939-WHA Document 493 Filed 05/23/17 Page 1 of 3
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withholding.

2

 For example, while RFP No. 3 requested Mr. Levandowski’s communications with 

Uber between January 2015 and August 2016, the documents produced appear to span only February 

2016 to August 2016. (Ex. 3 at 1, item 3.) Did Mr. Levandowski search for documents prior to 

February 2016? Do such documents exist? If so, are they being withheld under the Fifth 

Amendment? (Id.) Mr. Levandowski refuses to answer these questions, thus precluding Waymo

from understanding what has been withheld from this highly relevant category of documents and why. 

(Id.) Indeed, it is impossible to tell whether Mr. Levandowski is selectively producing documents 

that are helpful to him or his employer, while improperly shielding potentially harmful (but not 

necessarily incriminating) documents. A log describing withheld documents should be required. 

Argument: Mr. Levandowski repeatedly invokes United States v. Hubbell, 530 U.S. 27, 32-36 

(2000), arguing that the act of providing a privilege log is implicitly incriminating (Dkt. 244 at 2, 4). 

But Mr. Levandowski reads Hubbell far too broadly. Neither Hubbell nor any other authority cited 

holds that a party asserting the Fifth Amendment in a civil case is excused from producing a privilege 

log. In fact, courts in this district have rejected such an argument, ordering that a privilege log 

sufficient to establish both Fifth Amendment and non-Fifth Amendment privileges must be produced. 

See U.S. v. Real Prop. & Improvements, 2014 WL 5335266, at *2 (N.D. Cal. Oct. 17, 2014) (“Without 

a privilege log, the Court cannot properly rule on this matter.”). Moreover, the “act of production” 

doctrine in Hubbell applies only when the production itself would be incriminating—not where the 

materials to be produced merely contain incriminating facts. See, e.g., Moore v. Gilead Sciences, 

Inc., 2011 WL 5572975, at *7-8 (N.D. Cal. Nov. 16, 2011). Because the mere act of producing a 

privilege log listing communications between Mr. Levandowski and Uber is not itself incriminating, 

Mr. Levandowski’s over-reaching Hubbell objection must be overruled.3 

Finally, although Mr. Levandowski has kept Waymo in the dark regarding whether certain

communications with Uber exist, it bears mentioning that if such documents do exist, the Fifth 

Amendment does not excuse their non-production. Again, Hubbell’s “act of production” doctrine 

does not justify withholding documents that merely reflect past, incriminating acts. Moore, 2011 WL 

5572975, at *8 (“[I]t is not a crime to possess the documents requested by Moore . . . . Exilhomme’s 

Fifth Amendment privilege does not protect him from producing documents in which the contents 

may be incriminating, but the act of producing them is not.”). The “act of production” doctrine only 

applies where the production itself is incriminating. As Hubbell itself noted, it is a “settled

proposition that 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.” 530 U.S. at 35-36 (emphasis added).

Mr. Levandowski should be ordered to immediately provide a log identifying, on a document-bydocument basis, subpoenaed materials that are being withheld under any claim of privilege. Waymo 

reserves the right to challenge any assertions of privilege once it receives such a log.

 

2

 Further complicating the issues, Mr. Levandowski has confirmed that certain documents are being 

withheld on a combination of Fifth Amendment and non-Fifth Amendment privileges, yet no log for 

such documents has been provided. (Ex. 3 (5/18 correspondence).) Mr. Levandowski has also 

refused to describe his document collection methodology, asserting at various times the Fifth 

Amendment and attorney work product privileges. (See, e.g., Ex. 3 at 4, item 3.) 

3 Waymo does not request that documents responsive to RFP No. 1 (which requests all 

“misappropriated materials”) be logged on a document-by-document basis at this time, though

Waymo reserves its right to make such a request based on a further developed factual record.

Case 3:17-cv-00939-WHA Document 493 Filed 05/23/17 Page 2 of 3
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Respectfully,

/s/ Charles K. Verhoeven

Charles K. Verhoeven

cc: All counsel of record; Special Master John Cooper

Case 3:17-cv-00939-WHA Document 493 Filed 05/23/17 Page 3 of 3