United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WAYMO LLC,

Plaintiff,

 v.

UBER TECHNOLOGIES, INC.;

OTTOMOTTO LLC; and OTTO

TRUCKING LLC,

Defendants. /

No. C 17-00939 WHA

ORDER DENYING MOTION

FOR RELIEF FROM JUDGE

CORLEY’S NONDISPOSITIVE

PRETRIAL ORDER RE UBER’S

PRIVILEGE LOG

INTRODUCTION

The magistrate judge overseeing discovery in this action declined to order production of

certain documents identified on defendants’ privilege log. Plaintiff moves for relief from that

order pursuant to Civil Local Rule 72. The motion is DENIED.

STATEMENT

In two related orders regarding defendants’ assertions of privilege and per the discovery

referral in this action, Magistrate Judge Jacqueline Corley granted plaintiff Waymo LLC’s

motion to compel production of third-party Stroz Friedberg’s due diligence report (Dkt. No.

566) and further granted Waymo’s motion to compel compliance with its subpoena to Stroz

Friedberg (Dkt. No. 670). In doing so, Judge Corley made extensive factual findings regarding

the relationship between defendants Uber Technologies, Inc., Ottomotto LLC, and Otto

Trucking LLC, and non-parties Anthony Levandowski and Lior Ron. Significantly, she found

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that Uber had waived any work-product privilege over documents shared with Ottomotto, Otto

Trucking (collectively, “Otto”), Levandowski, or Ron prior to the execution of the Put Call

Agreement on April 11, 2016, but specifically noted that “[t]he outcome might be different after

the signing of the Put Call Agreement” (Dkt. No. 566 at 17 & n.2, 21). The undersigned judge

overruled objections to the aforementioned orders (Dkt. Nos. 685, 745). Levandowski’s further

appeal remains pending before the Federal Circuit.

On June 26, Judge Corley rejected Waymo’s further argument that Uber had also waived

its privileges over documents shared with Otto, Levandowski, or Ron after April 11, 2016 (see

Dkt. No. 637), finding that the execution of the Put Call Agreement gave rise to a “common

legal interest in defending claims brought by Waymo for misappropriation of trade secrets,

among other things,” such that Uber did not waive privileges over documents shared within the

common-interest group after that date (see Dkt. No. 731 at 4). Also in her June 26 order, Judge

Corley noted multiple deficiencies in Uber’s privilege log but concluded that said deficiencies

were not “so egregious that Uber should have to produce otherwise protected material,

especially given the volume of log entries and the brief period Uber had to reevaluate the

privilege log in light of the MTC Order” (id. at 4–6).

Waymo now moves for relief from Judge Corley’s June 26 order pursuant to Civil Local

Rule 72, challenging the foregoing findings (Dkt. No. 779). This order follows full briefing.

ANALYSIS

1. STANDARD OF REVIEW.

Under FRCP 72, a district judge considering timely objections to a magistrate judge’s

nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.” 

Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing

court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United

States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 

2. DEFICIENCIES IN UBER’S PRIVILEGE LOG.

Waymo’s motion catalogues in detail various deficiencies in Uber’s privilege log and

argues that Judge Corley “clearly erred” in refusing to find a “waiver of all logged documents”

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as a result of said deficiencies (Dkt. Nos. 779 at 1–3, 816 at 1–4). In support of its waiver

argument, Waymo cites the undersigned judge’s standing order and prior instructions generally

discussing privilege log requirements (see Dkt. No. 816 at 1). But there is no dispute here that

Uber must do more to comply with said requirements. Judge Corley found as much and

accordingly ordered Uber to make further amendments to its privilege log (see Dkt. No. 731 at

3, 5). Waymo’s objection essentially amounts to disagreement with Judge Corley’s judgment,

given Uber’s deficient privilege log, about the best way to manage further discovery going

forward. Waymo’s arguments on this point are unpersuasive. Judge Corley has capably and

diligently managed the bone-crushing flow of discovery in this case thus far, and remains in the

best position to determine how to handle discovery issues like deficient privilege log entries. 

Under these circumstances, her decision to strike a balance by requiring further information

from Uber, while declining to impose Waymo’s drastic suggested remedy of a blanket waiver

over “otherwise protected material,” was not clearly erroneous.

3. DOCUMENTS SHARED WITH LEVANDOWSKI AFTER APRIL 11, 2016.

Waymo also objects to Judge Corley’s finding that Uber did not waive its privilege over

documents shared with Levandowski after April 11, 2016, arguing without authority that Uber

“cannot have it both ways” by asserting a common legal interest with Levandowski post-April

11, 2016, while representing that it now lacks authority to force Levandowski to return stolen

files (Dkt. No. 779 at 3–4). Waymo’s motion does not explain how the foregoing positions are

inherently incompatible, nor does it show that Judge Corley clearly erred in finding a common

legal interest between Uber and Levandowski based on their indemnification agreement postApril 11, 2016, notwithstanding whether or not Uber now has any authority to force

Levandowski to return stolen files.

In its reply brief, Waymo offers a slightly different variation of this supposed

dichotomy, claiming that “Uber must now contend it lacked control over [materials downloaded

by Levandowski] in order to avoid the application of the crime-fraud exception,” so it “cannot

claim a ‘shared common interest’ on a privilege log created to log such materials” (Dkt. No.

816 at 4). Tellingly, Waymo does not cite Judge Corley’s order, which actually held —

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contrary to Waymo’s insinuation — that the crime-fraud exception did not apply because

Waymo had not shown by a preponderance of the evidence that Uber communicated with its

counsel “in furtherance of a criminal scheme” (Dkt. No. 731 at 2–3). Whether or not Uber now

exercises control over any materials downloaded by Levandowski did not bear on, much less

dictate, the outcome of Judge Corley’s analysis on the crime-fraud exception. 

Despite conceding that a purported common interest must be evaluated at the time of the

disclosure in question, Waymo also argues that “proceedings in this case have vividly

illustrated” Uber and Levandowski’s “vastly diverging interests,” which is “compelling

evidence that the parties understood [that] they lacked a common legal interest with regards to

Levandowski’s theft even at the time the Put-Call Agreement was signed” (Dkt. Nos. 779 at 4,

816 at 4–5). But it remains up to Judge Corley, not Waymo, to decide what facts in the record

constitute “compelling evidence” on issues of privilege. Waymo’s disagreement with Judge

Corley’s factual findings does not amount to a showing of clear error on this motion.

4. OTHER DOCUMENTS SHARED AFTER APRIL 11, 2016.

Finally, Waymo raises multiple objections to Judge Corley’s finding that Uber did not

waive its privileges over documents shared with the rest of the common-interest group (i.e.,

besides Levandowski) after April 11, 2016 (Dkt. No. 779 at 4–5). These objections essentially

amount to disagreements with Judge Corley’s reasonable inferences from the evidentiary record

and are thus unavailing.

First, Waymo criticizes Judge Corley’s reliance on a “Joint Defense, Common Interest

and Confidentiality Agreement” executed by members of the common-interest group on April

11, 2016, noting that “the existence of a written agreement is not controlling” (ibid.). This point

is true, but an agreement does not have to be “controlling” to be found probative of the

common-interest issue.

Second, Waymo claims Judge Corley found “that Uber and Otto each having ‘exclusive

options’ created a common interest” and asserts without authority that “no common interest

could arise” until the acquisition actually closed (id. at 5; see also Dkt. No. 816 at 5). Waymo

again misrepresents Judge Corley’s order, which considered not only Uber and Otto’s

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“exclusive options” to close but also the indemnification agreement between them in finding a

common legal interest (see Dkt. No. 731 at 4). Significantly, and as Judge Corley expressly

pointed out, “Uber was required to indemnify Levandowski, Ron and Otto even if neither Uber

nor Otto ever exercised its option to buy/sell” (ibid.). This alone defeats Waymo’s objection.

Third, Waymo contends Uber’s indemnification obligation could not create a common

legal interest because the precise scope of that obligation did not finalize until shortly before

closing (Dkt. Nos. 779 at 5, 816 at 5). But whatever uncertainties remained as to that scope, the

point remains that Judge Corley found the common-interest group at least “shared a joint

common legal interest in defending claims brought by Waymo for misappropriation of trade

secrets, among other things” (Dkt. No. 731 at 4). Waymo has not shown that this finding was

clearly erroneous. 

Waymo protests in a footnote that, “[e]ven if a common legal interest did arise, Judge

Corley’s findings were still overbroad because . . . the Court should find waiver with respect to

any post-April 11 shared communications that were not shared for the purpose of developing

joint legal strategy under the Indemnification Agreement” (Dkt. No. 779 at 5 n.5). Waymo has

not actually shown, however, that any communication on Uber’s privilege log falls within this

hypothetical category. In short, Waymo has not shown that Judge Corley’s finding of common

legal interest after April 11, 2016, was clearly erroneous.

CONCLUSION

For the foregoing reasons, Waymo’s motion for blanket relief from Judge Corley’s order

regarding Uber’s privilege log is DENIED. Its objections to the order are OVERRULED. This is,

of course, without prejudice to further challenges before Judge Corley regarding individual

documents withheld under claims of privilege.

IT IS SO ORDERED.

Dated: July 18, 2017. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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