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01980-00104/9635321.1

WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa Baily (Bar No. 237649)

 melissabaily@quinnemanuel.com

 John Neukom (Bar No. 275887)

 johnneukom@quinnemanuel.com

 Jordan Jaffe (Bar No. 254886)

 jordanjaffe@quinnemanuel.com

50 California Street, 22nd Floor

San Francisco, California 94111-4788

Telephone: (415) 875-6600

Facsimile: (415) 875-6700

Attorneys for WAYMO LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

vs.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

CASE NO. 3:17-cv-00939

PLAINTIFF WAYMO LLC’S’s PRECIS 

IN SUPPORT OF REQUEST TO FILE 

MOTION IN LIMINE REGARDING THE 

STROZ FRIEDBERG DUE DILIGENCE 

INVESTIGATION

Date: TBD

Time: TBD

Ctrm: 8, 19th Floor

Judge: Honorable William H. Alsup

Trial Date: December 4, 2017 

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 1 of 7
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WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

As this Court is aware, Defendants contend the investigation by Stroz was somehow a 

prophylactic safeguard that ensured no Waymo trade secret information did not make its way to Uber. 

For example, Defendants have made statements to the Court such as “Stroz took all of Mr. 

Levandowski's devices, even devices that were very old, and put it all into a vault” and that “those 

devices were quarantined at Stroz for a year and a half.” (Dkt. 1261 at 22:6-8; Dkt. 1623-4 at 2.) Yet, 

as it has with many issues in this case, Defendants continue to cloak the Stroz investigation with 

claims of privilege that prevent Waymo from discovery into the very process Uber trumpets in 

purported defense of Waymo’s misappropriation claims. By this precis, pursuant to the Court’s Order 

After Hearing on Motion to Continue Trial Date (Dkt. 1954), Waymo seeks leave to bring a formal 

motion in limine to preclude Defendants from characterizing or referring to the Stroz due diligence 

investigation as a means for insulating Defendants from liability against Waymo’s trade secret 

misappropriation claims, because allowing them to make that argument would sanction use of the 

attorney-client, work product, and common interest privileges as both a sword and a shield. 

Defendants should also be precluded from asserting any evidence or argument related to the Stroz 

evidence “vault” for the additional reason that it would be misleading to the jury and unduly 

prejudicial given that storage of Waymo’s confidential and trade secret information was incomplete, 

and far from the purported “quarantine” that Defendants have claimed existed. 

I. DEFENDANTS SHOULD BE PRECLUDED FROM RELYING ON THE STROZ 

INVESTIGATION AS A DEFENSIVE MEASURE WHILE SHIELDING THE 

INVESTIGATION FROM DISCOVERY THROUGH CLAIMS OF PRIVILEGE.

Since the Federal Circuit affirmed that the Stroz Report and related materials were not 

privileged and should be produced, Defendants have resorted to a fallback position based on this 

Court’s prior rulings that post-April 11 documents, communications, and information shared 

between the common interest group (Uber, Ottomotto, Otto Trucking, Levandowski and Ron) 

remain privileged. (See Dkt. 731, 949.) Waymo’s access to documents, testimony and 

correspondence related to the Stroz due diligence process has therefore been limited to the period 

pre-dating April 11. This has been so even though Stroz continued on with its due diligence 

investigation for nearly four months before issuing the final Report on August 5, 2016. Despite 

Defendants’ refusal to provide Waymo access to information that covers an overwhelming 

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 2 of 7
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WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

majority of the Stroz due diligence investigation timeline (between April 11 and August 5), 

Defendants rely on the very same investigation in their defense against Waymo’s trade secret 

misappropriation claims, including the supposed “vaulting” that occurred before the August 5 final 

report. This is improper, and the Court has broad discretion to preclude this evidence or testimony 

because the privilege assertions are being used as “both [] a sword and a shield.” Columbia 

Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1196 (9th 

Cir. 2001) (affirming district court’s in limine ruling prohibiting defendant from using attorneyclient communications as both a sword and a shield); Galaxy Comp. Serv’cs, Inc. v. Baker, 325 

B.R. 544, 559 (E.D.Va. 2005) (granting motion in limine to prevent witness from testifying about 

issues she refused to answer during her deposition on attorney-client privilege grounds); 

Engineered Prods. Co. v. Donaldson Co., Inc., 313 F.Supp. 2d 951, 1022–23 (N.D. Iowa 2004) 

(barring plaintiff from introducing testimony at trial on issues it prevented defendant from 

exploring during deposition by invoking the attorney-client privilege). 

For example, following production of the Stroz Report, Defendants served amended 

privilege logs containing thousands of entries post-dating April 11 that remained withheld as 

privileged. (See e.g. Dkt. 1994-9.) In addition, trial witnesses who Defendants identified as 

providing testimony regarding the Stroz due diligence investigation, including Eric Tate, Eric 

Friedberg, John Gardner, Angela Padilla, and Justin Suhr, were instructed not to answer questions 

about information provided by Stroz, or communications with Stroz, after April 11. (E.g. Oct. 13, 

2017 Deposition of Justin Suhr at 24:8-25: “Q. Is there anything else you can tell me about those 

communications with Stroz that is not, in your view, covered by the attorney-client privilege? 

MR. GONZALEZ: Or that they would be a joint interest privilege, and I would instruct not to 

answer if they occurred in the summer. If you had any conversations with them before April 11th, 

you can tell her that. THE WITNESS: I don't believe I had conversations prior to April 11th 

directly with Stroz Friedberg. Q. And you'll follow your counsel's instruction not to answer 

questions regarding the communications you had with Stroz in the summer of 2016? A. Yes.”; 

Sept. 29, 2017 Deposition of John Gardner at 157:20-158:6: Instructed not to answer whether 

Stroz put documents in a proposed disclosure folder after April 11; Sept. 29, 2017 Deposition of 

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 3 of 7
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WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

Eric Tate at 16:9-17:19, 115:11-17: establishing privilege ground rules regarding April 11 cutoff 

and setting out position that communications with Stroz after April 11 are privileged.) When 

permitted to testify, witnesses were repeatedly instructed to cabin their answers to pre-April 11 

knowledge and information when Waymo asked questions concerning the Stroz investigation.

The privilege cutoff shields a significant portion of the Stroz due diligence investigation 

from discovery. Stroz was not retained until March 4 and did not begin collecting devices for 

forensic analysis until March 22. Uber’s counsel, Eric Tate, testified that the Stroz forensic 

review process was then delayed due to scheduling issues and the existence of more devices than 

Stroz expected. (Sept. 29, 2017 Deposition of Eric Tate at 100:4-20.) In an exhibit to the Stroz

Report, Stroz also explains how it was forced to “analyze[] and review[] a significant population 

of documents (millions) in a short period of time (approximately 3 weeks)” and “[d]uring the 

course of performing the final review in late April, Stroz Friedberg was asked to cease all 

remaining document review” and counsel decided to forgo “a number of outstanding checks and 

analyses that Stroz Friedberg suggested to help bolster the confidence in the thoroughness of the 

review.” (Dkt. 1603-7.) Moreover, Stroz created detailed preliminary forensic reports in late July 

of the devices Levandowski and the other Diligenced Employees provided to Stroz. (See, e.g.,

Dkt. 1603-6.) Thus, much, if not most, of Stroz’s substantive forensic analysis work that was the 

focus of the due diligence investigation, and that now forms a central piece of Uber’s defense 

strategy, did not even begin until after the April 11 privilege cutoff set by the Court and strictly 

adhered to by Defendants. In addition, documents that predate the privilege cutoff show

infighting between the parties related to the involvement of Uber’s counsel in the direction of the 

investigation. (Dkt. 1603-9 (Email from Levandowski’s attorney noting the need for an 

independent, third party examination by Stroz and asserting that MoFo’s direction of Stroz’s work 

was inappropriate.) Waymo has no way to determine whether and to what extent these issues 

persisted throughout the remaining four months of the investigation, and what effect any 

continuation of these or other issues may have had on the final outcome of the Stroz investigation 

and their deliverables. 

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 4 of 7
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01980-00104/9635321.1

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WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

This is particularly prejudicial because Defendants have affirmatively asserted that “the 

facts show that the due diligence worked,” claiming that “the Stroz due diligence process itself 

was carefully structured so that Uber did not receive any confidential or proprietary Google 

information identified by Stroz,” and making the Stroz due diligence investigation a central part of 

their defense that no trade secret information “made its way to Uber or Ottomotto.” (Dkt. 1623-4 

at 1, 2, 3.) Due to the privilege assertions over post-April 11 documents and testimony, 

Defendants have precluded Waymo from taking discovery into the vast majority of the time that 

the Stroz investigation occurred. This includes the underlying forensic work reflected in the Stroz 

Report and its attached exhibits in that timeframe. This limits Waymo’s ability to substantively 

challenge Defendants’ characterizations of the investigation because has Waymo no insight into 

issues such as the aforementioned direction for Stroz to cease all remaining document review and 

forgo a final confidence check for its review, or any other issues not explicitly referenced in the 

produced materials but may have been revealed by the multitude of withheld documents that postdate April 11. Defendants cannot have it both ways, relying on characterizations of the Stroz due 

diligence investigation as a lynchpin to their defense against Waymo’s trade secret 

misappropriation claims while at the same time preventing discovery into a large portion of the 

same investigation. For the foregoing reasons, this information should be excluded as an improper 

use of privilege as both a sword and a shield. 

II. THE COURT SHOULD EXCLUDE EVIDENCE OR ARGUMENT RELATED TO 

THE STROZ “EVIDENCE VAULT” FOR THE ADDITIONAL REASON THAT IT

IS UNDULY PREJUDICIAL AND LIKELY TO LEAD TO JURY CONFUSION

A subset of the Stroz due diligence investigation involves the alleged Stroz “vault” –

which Defendants have pointed to in asserting that “there was no way for [Levandowski] to access 

any Google information on [his devices] for the remainder of his time at Otto or once he joined 

Uber.” (Dkt. 1623-4 at 4.) Defendants have also asserted that “Stroz took all of Mr. 

Levandowski's devices, even devices that were very old, and put it all into a vault” and that “those 

devices were quarantined at Stroz for a year and a half.” (Dkt. 1261 at 22:6-8; Dkt. 1623-4 at 2.) 

The references to a “vault” are at best misleading and at worst plainly incorrect. (Dkt. 

1623-4 at 4.) For example, Stroz witnesses confirmed that access to the online, cloud-based 

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 5 of 7
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WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

repositories – where Levandowski admitted he stored Waymo confidential information – was 

never cut off, leaving him with unfettered access to those sources throughout the Stroz 

investigation. (See Oct. 6, 2017 Deposition of Hanley Chew at 229:17-230:16; Oct. 20, 2017 

Deposition of Melanie Maugeri at 178:12-180:12; see also Dkt. 1928-11 (listing of thousands of 

files in the “chauffeur” folder of Levandowski’s Dropbox account covering confidential and 

proprietary information describing Waymo’s LiDAR systems and numerous other aspects of its 

self-driving car technology.) Indeed, Melanie Maugeri, who led the forensic due diligence 

analysis at Stroz, acknowledged at her deposition that allowing such access was counter to her 

professional recommendation. (Oct. 20, 2017 Deposition of Melanie Maugeri at 180:14-19.) Ms. 

Maugeri also testified that Stroz had identified a Slack site used for team collaboration as a source 

of potentially relevant material that Stroz “would have been interested in reviewing” if access was 

provided, but no such access was ever granted. (Id. at 36:5-39:15.) Finally, not all of 

Levandowski’s devices remained in the “vault,” as Defendants have previously acknowledged, 

Stroz returned Levandowsi’s iPhone. (Dkt. 1623-4 at 4; see also Dkt. 1603-6 at 2.) Thus, the 

Stroz Report simply does not state that the possible sources of access to Waymo’s trade secrets 

were all held in a “vault” or somehow otherwise quarantined. 

Under FRE 403, evidence should be excluded if its probative value is substantially 

outweighed by a danger of “confusing the issues,” “misleading the jury” or “wasting time,” which 

is the case here. If Defendants’ argument and evidence concerning the supposed “vaulting” is 

admitted, the jury could be left with the misimpression that Stroz prevented access to any and all 

sources of Waymo confidential and trade secret information. Waymo would then have to spend 

time at trial laying out each fact above in detail in order to explain why this is not true. Thus, any 

argument or evidence concerning the Stroz “vault” should be excluded for the additional grounds 

that references to the Stroz “vault” lack any probative value but create significant potential for 

prejudice to Waymo caused by confusing the issues and misleading the jury.

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 6 of 7
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01980-00104/9635321.1

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WAYMO’S PRECIS IN SUPPORT OF REQUEST TO FILE MOTION IN LIMINE 

DATED: October 23, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/ David A. Perlson

David A. Perlson

Attorneys for WAYMO LLC

Case 3:17-cv-00939-WHA Document 2040 Filed 10/23/17 Page 7 of 7