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No. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa J. 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,

v.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

CASE NO. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO 

NON-PARTY ANTHONY 

LEVANDOWSKI’S REQUEST FOR 

LEAVE TO MAKE IN CAMERA

SUBMISSION

Hearing:

Date: May 25, 2017

Time: 10:00 a.m.

Place: Courtroom F, 15th Floor

Judge: The Honorable Jacqueline Scott Corley

Case 3:17-cv-00939-WHA Document 452 Filed 05/16/17 Page 1 of 6
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-1- No. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE 

Plaintiff Waymo LLC (“Waymo”) respectfully opposes Mr. Levandowski’s request for 

leave to make an in camera submission in support of Defendants’ opposition to Waymo’s motion 

to compel. Mr. Levandowski seeks to submit a secret declaration in an attempt to justify the 

purported common interest privilege asserted by Defendants. But Mr. Levandowski cites no 

authority supporting the relief he seeks. And, having engaged in communications with nonlawyers for the purpose of selling his companies for $680 million, Mr. Levandowski should not 

now be permitted to shield those communications on some secret basis. If a declaration that 

merely sets out the predicates for Defendants’ assertion of a purported common interest privilege 

really would implicate Mr. Levandowski’s Fifth Amendment rights, then that Fifth Amendment 

assertion—along with all the other evidence demonstrating the theft of Waymo’s confidential and 

proprietary materials and the concealment of that crime (see Dkt. 433 at 3-4, 7)—requires a 

finding that the crime-fraud exception to any privilege applies.

A. Background

As the Court has elsewhere summarized: “On March 29, at Uber’s cryptic request, the 

Court convened a non-public conference, at which separate counsel first appeared for Mr. 

Levandowski. At that conference, Uber’s defense counsel explained that: “‘Before the acquisition 

[of Otto] some due diligence was done. A third party prepared a report based on that due 

diligence. We intend to put that report on a privilege log.”’ (Dkt. 433 at 6 (citations 

omitted).) “Levandowski through separate counsel, however, broadly asserted his Fifth 

Amendment privilege against self-incrimination, seeking to prohibit defendants from revealing 

certain information about the due diligence report—even on a privilege log.” (Id.) 

This Court ultimately heard and denied Mr. Levandowski’s motion to modify the privilege 

log requirements based on the Fifth Amendment. (Dkt. 202.) In doing so, the Court pointed out 

that Mr. Levandowski had cited no case on point: no case involving a joint defense agreement, no 

case involving presenting documents to a non-lawyer, and no case involving the presentation of 

documents “to a consultant for due diligence by the other side in an acquisition.” (See generally

id. & id. at 11.) The Court therefore rejected Mr. Levandowski’s argument “[t]hat traditional 

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-2- No. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE 

privilege log requirements should be verboten merely because they might connect the dots back to 

a non-party in a possible criminal investigation,” noting that this was “a sweeping proposition 

under which all manner of mischief could be concealed.” (Id. at 12.) Mr. Levandowski took a 

writ from the Court’s decision, but it was rejected by the Federal Circuit. (See USCA Fed. Cir. 

Case No. 2017-1904.) 

When Mr. Levandowski was later deposed, he broadly asserted his Fifth Amendment right 

against self-incrimination. Among other things, Mr. Levandowski invoked the Fifth in response to 

questions regarding his purported common interest with Defendants or other members of 

Defendants’ alleged common interest group. (Dkt. 366-8, at 34:3-35:13, 37:7-38:3.) Mr. 

Levandowski also invoked the Fifth in response to questions about the logged “due diligence” 

materials. (Id. at 43:11-17.)

B. Mr. Levandowski Is Attempting To Use The Privilege As Both A Sword And 

Shield

Having refused to testify regarding the basis for the alleged common interest privilege at

his deposition, Mr. Levandowski now contends that he should be permitted to testify about these 

subjects through an in camera declaration. Essentially, Mr. Levandowski is seeking to use his 

Fifth Amendment privilege offensively as a “sword” in support of Defendants’ opposition to the 

motion to compel, while simultaneously seeking to use the Fifth Amendment to “shield” himself 

from cross-examination on the very same subject matter. This is improper. See United States v. 

$133,420.00 in U.S. Currency, 672 F.3d 629, 640-41 (9th Cir. 2012) (holding that in a civil case a 

witness should not be permitted to “use of the Fifth Amendment privilege against selfincrimination as a sword as well as a shield” by offering evidence and then using the Fifth 

Amendment privilege to “prevent any adversarial testing of the truth of that testimony”). The 

notion that Mr. Levandowski should be permitted to submit materials that are shrouded in secrecy

for a secret reason that cannot be tested by cross-examination is simply another “sweeping 

proposition under which all manner of mischief could be concealed.” (See Dkt. 202 at 12.) Mr. 

Levandowski’s motion should be denied.

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-3- No. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE 

C. Mr. Levandowski Cites No Authority That Justifies His Request

Mr. Levandowski does not cite a single case in which a non-party in a civil case was 

permitted to make an in camera submission to shield the predicates of a purported common 

interest privilege from disclosure pursuant to the Fifth Amendment. 

Indeed, Mr. Levandowski cites cases that are extremely far afield from this situation. 

These include, for example, four cases (from outside this District) regarding the application of 

Federal Rule of Criminal Procedure 17(c), which governs the issuance of subpoenas duces tecum

in criminal cases. (Mot. 3.) As discussed in the very cases cited, “Rule 17 itself affords authority 

for the ex parte issuance of subpoenas duces tecum returnable at trial.” U.S. v. Beckford, 964 F. 

Supp. 1010, 1018 (E.D. Va. 1997) (cited by Levandowski); see also U.S. v. Tomison, 969 F. Supp. 

587, 591 (E.D. Cal. 1997) (noting that “the Rule’s structure appears to anticipate the possibility of 

an ex parte request”) (cited by Levandowski). In other words, the ex parte relief sought by the

parties in these criminal cases was authorized by the Federal Rules of Criminal Procedure; that

obviously is not the case here.

Mr. Levandowski appears to rely most heavily on Simmons v. U.S., 390 U.S. 377, 394 

(1968), a Supreme Court case in which a criminal defendant was faced with a choice between 

asserting a Fourth Amendment objection and waiving his Fifth Amendment rights. There, the 

Court found that a criminal defendant should not have to surrender one constitutional right in 

order to assert another. (Id.) But this is not a criminal case; Mr. Levandowski is not a party; and 

he is not choosing between two Constitutional rights. Here, Mr. Levandowski voluntarily engaged 

in discussions with others, including non-lawyers, “for the purpose of selling his ventures to Uber 

for $680 million.” (See Dkt. 202 at 11.) Having had these communications to suit his own 

purposes, Mr. Levandowski now wants to submit a secret declaration to explain why they should 

be cloaked in a purported common interest privilege. Neither Simmons nor any other authority 

supports such a result.

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-4- No. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE 

D. Mr. Levandowski Has Made No Showing That His Fifth Amendment Privilege Is 

Implicated

As the cases cited by Mr. Levandowski show, “[f]ormally claiming a privilege” should 

involve specifying the information that is privileged and “for what reasons.” E.g., Kerr v. U.S., 

426 U.S. 394, 400 (1976). Indeed, on Mr. Levandowski’s previous motion regarding the 

disclosure of information related to the due diligence materials in a privilege log, the Court noted 

that Mr. Levandowski had not “proven up” the “factual predicates” of any asserted privileges with 

a sworn record. (Dkt. 202 at 10.) Similarly here, Mr. Levandowski offers very little to explain 

why a declaration regarding the factual predicates to a common interest privilege would implicate 

his Fifth Amendment rights. 

Mr. Levandowski first seems to argue that the Fifth Amendment should protect any 

declaration regarding the common interest privilege because Mr. Levandowski has consistently 

been asserting the Fifth Amendment in this case. (Mot. 3-4.) But Fifth Amendment assertions 

cannot justify other Fifth Amendment assertions, and this circular reasoning does not shed any 

light on the predicates for Mr. Levandowski’s reliance on the Fifth Amendment here. So Mr. 

Levandowski is left with his repeated insistence that the “days and months after Mr. Levandowski 

left Waymo’s employ” were “crucial.” (Mot. 4.) More than this blanket, conclusory, open-ended, 

and unexplained statement should be required of Mr. Levandowski here, where he is requesting 

relief unsupported by any binding legal authority. See, e.g., Kerr, 426 U.S. at 400. Indeed, if it is 

the case that Mr. Levandowski cannot submit a declaration regarding the predicates for a 

purported common interest privilege without implicating his Fifth Amendment rights, then the 

crime-fraud exception to the privilege should apply. (Dkt. 445 at 12.)

E. Conclusion

Mr. Levandowski has no legal authority to support his requested relief, and he has not 

established a factual predicate for his assertion of the Fifth Amendment privilege here. Moreover, 

the equities in this case—where Defendants and Mr. Levandowski have routinely used the 

privileges as both a sword and a shield—weigh heavily against granting Mr. Levandowski’s 

motion. That motion should be denied.

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-5- No. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE 

DATED: May 16, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

Case 3:17-cv-00939-WHA Document 452 Filed 05/16/17 Page 6 of 6