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WAYMO’S RESPONSE TO OTTO TRUCKING’S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER DKT. 1391

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 RESPONSE 

TO OTTO TRUCKING’S MOTION FOR 

RELIEF FROM NON-DISPOSITIVE 

PRETRIAL ORDERS RE: MOTIONS TO 

QUASH AND FOR PROTECTIVE ORDER; 

AND SCOPE OF PRIVILEGE WAIVER 

(DKT. 1391) 

Judge: The Honorable William Alsup

Trial Date: October 10, 2017

Case 3:17-cv-00939-WHA Document 1572 Filed 09/14/17 Page 1 of 6
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WAYMO’S RESPONSE TO OTTO TRUCKING’S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER DKT. 1391

In its Motion For Relief from Magistrate Judge Corley’s nondispositive pretrial order quashing 

Otto Trucking’s subpoena to Keker, Van Nest & Peters LLP (“KVP”) and further ruling on the scope 

of Waymo’s privilege waiver (Dkt. 1391), Otto Trucking does not argue that Magistrate Judge 

Corley’s rulings were “clearly erroneous or contrary to law.” See Dkt. 1520-3 (“Motion”). Nor can it. 

Over the course of several hearings the Court carefully considered the issues concerning Waymo’s 

waiver of privilege related to its forensic investigation, including lengthy in camera reviews of 

Waymo’s documents, properly delineated the scope of the asserted waiver, and determined that the 

challenged subpoena to KVP is outside of that scope. Otto Trucking’s characterizations in its Motion 

of the discovery obtained from Waymo as a result of the Court’s rulings are not only irrelevant for 

purposes of evaluating the present motion, but also incomplete and inaccurate. There is nothing 

“clearly erroneous” about the Court’s rulings, and the cases Otto Trucking cites demonstrate that the 

rulings are also not “contrary to law” concerning privilege waivers. 

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.” Id. (citing United States v. BNS, Inc., 

858 F.2d 456, 464 (9th Cr. 1988). Even if the district court would have ruled differently if 

considering the motion in the first instance, the party seeking review must still demonstrate that the 

magistrate’s ruling was erroneous, in order to get relief. See Patrick Caldwell v. Facet Retiree Med. 

Plan, No. C 13-00385 WHA, Dkt. 86 at 3 (March 31, 2014) (Alsup, J.) (“Had this issue been before 

the assigned judge ab initio, he would have allowed the depositions to go forward. That, however, is 

not the standard of review. Defendants have simply not met their burden to prove that the discovery 

order was clearly erroneous or contrary to law.”). 

On August 18, the Court held: “While the waiver of work product does not necessarily waive 

attorney-client privileged communications, here the waiver of work product over the investigation did 

waive the attorney-client privilege as to counsel communications with Mr. Brown and anyone else 

involved in the investigations at issue as in fairness such communications should be disclosed.” Dkt. 

1272 at 2 (the “Order”). Pursuant to this carefully-tailored subject-matter waiver, the Court ordered 

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WAYMO’S RESPONSE TO OTTO TRUCKING’S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER DKT. 1391

production of documents concerning Waymo’s forensic investigation, including communications 

between the forensic investigation team at Waymo and outside counsel at KVP. Id. Waymo has 

produced those documents, with the assistance of the Court in navigating the precise scope of the 

waiver through in camera review. Dkt. 1441, 8/31 Tr. at 6-8, 61-113. Contrary to Otto Trucking’s 

insinuation that Waymo has avoided complying with the Court’s order (Motion at 2 n.1), the Court 

itself has expressly recognized Waymo’s compliance and good faith in the exact hearings Otto 

Trucking references. During the August 31 in camera review of documents, the Court repeatedly 

found Waymo’s stance to be proper, denying Otto Trucking’s repeated requests to broaden the scope 

of the waiver. Dkt. 1441, 8/31 Tr. at 61-113. Further, while the Court did order some production, the 

Court recognized “the difficulty of the line-drawing” exercise and found that Waymo was not “trying 

to hide super-material information.” Id. at 9:10-16, 68:7-13. The Court made clear: “I’m not faulting 

you, at all.” Id. at 40:16-17. Otto Trucking’s complaint that Waymo did not produce privileged 

communications until the late stages of this litigation are baseless. Indeed, when Otto Trucking 

complained that Waymo had delayed, the Court dismissed the timing issue as a creature of 

Defendants’ own making: “Mr. Chatterjee, the reason we are [at the close of fact discovery] is 

because you didn’t bring this motion [to compel privileged documents] to my attention until later, so 

that I don’t want to hear.” Dkt 1414, 8/28 Tr. at 13:20-24. 

Otto Trucking’s complaint that Waymo is withholding unfavorable documents and “selectively 

disclosing” favorable ones is simply untrue. Motion at 3-4. Waymo has produced the documents that 

it previously withheld as privileged but that come within the scope of the Court’s Order. Waymo 

applies no other criteria. Further, the Court has conducted extensive in camera review of these 

documents, ruling on dozens (which Otto Trucking does not challenge in its Motion), and Waymo has 

complied with those rulings. The Court’s continued involvement throughout this process to ensure 

that the waiver is properly adhered to, and not unduly broadened, is not only appreciated, but in line 

with the Ninth Circuit’s guidance in the case cited by Otto Trucking concerning purported the scope 

of the waiver at issue. See Bittaker v. Woodford, 331 F.3d 715, 720-21 (9th Cir. 2003) (“[T]the court 

must impose a waiver no broader than needed to ensure the fairness of the proceedings before it . . . if 

a party complies with the court’s conditions and turns over privileged materials, it is entitled to rely on 

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WAYMO’S RESPONSE TO OTTO TRUCKING’S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER DKT. 1391

the contours of the waiver the court imposes, so that it will not be unfairly surprised in the future by 

learning that it actually waived more than it bargained for in pressing its claims.”).1 Waymo has also 

served updated privilege logs, which provide the Bates numbers corresponding to prior privilege log 

entries that have now been produced. Otto Trucking’s motion does not detail a single additional entry 

on these logs that should be produced. 

Otto Trucking asks for KVP’s “communications to the investigators” (Motion at 4), but 

Waymo has already produced all communications between the forensic investigators and counsel. 

Indeed, Otto Trucking cites to several of them in an extraneous portion of its brief alleging the 

investigation to be a “sham.” Motion at 2. In this section, Otto Trucking presents one-sided argument 

about excerpts from emails that refer to SVN files as “low-value” and to Levandowski’s download as 

not ringing “alarm bells,” but as in Defendants’ other briefing on the very same emails,2 Otto 

Trucking again ignores testimony explaining that these statements do not mean what Otto Trucking 

claims that they mean. For instance, Mr. Zbrozek has testified that by “low-value” he meant only that 

the SVN database held data “considered of lesser value” than personal user data and Google source 

code that is stored on a different Google server. Dkt. 1541-21 at 208:18-209:11 Further, he explained 

that while a bulk download “in absence of context” may not be suspicious, “someone pulling 

information and putting that information somewhere else and then leaving the company, maybe that’s 

suspicious. Maybe just looking at the log files on their own isn’t enough to tell that story.” Id. at

230:2-16; see also id. at 238:23-25, 239:23-25. When the entirety of the discovery Waymo has 

provided since the Order is read in context, it becomes clear that Otto Trucking misstates the meaning 

of the emails it cites in its Motion. At any rate, setting aside the disputed meaning of emails between 

Waymo’s investigators and KVP, the mere existence of the dispute proves the mootness of Otto 

Trucking’s Motion: Otto Trucking already has communications between the investigators and KVP.

 

1

 In the underlying opposition to the motions to quash the subpoena, Otto Trucking did not cite 

Bittaker or any of the other cases it now claims support its position on the scope of the subject matter 

waiver. See Dkt. 1377-4.

2

 See, e.g., Dkt. 1524-3, 1534, 1540-4, 1562-4.

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WAYMO’S RESPONSE TO OTTO TRUCKING’S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER DKT. 1391

Having already received the discovery responsive to the Court’s Order, it is unclear what more 

Otto Trucking seeks to compel through this Motion. To the extent that Otto Trucking seeks KVP’s 

internal strategic communications that do not include the forensics team, Otto Trucking has failed to 

show any entitlement to such work product. Otto Trucking’s assertion that KVP was “part of the 

investigative ‘Team,’ not mere outside counsel” such that KVP’s internal correspondence is now at 

issue, and should be compelled, relies on inapposite case law that does not carry Defendants’ burden 

to show that Magistrate Judge Corley’s rulings were contrary to law. Motion at 4. Two of the three 

cases concerned the same type of discovery that has already been provided here, i.e. the work product 

of investigators conducted at the direction of counsel. In United States v. Nobles, 422 U.S. 225 (1975) 

the Supreme Court found that a criminal defendant waived work product protection over the report of 

an outside investigator (not an attorney) after the report and the investigator’s own testimony was used 

by the defense during trial to impeach the prosecution’s witnesses. Id. at 227, 239 (“In a criminal 

trial, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of 

a defense investigator regarding statements previously obtained from the witnesses by the 

investigator. . . . Respondent, by electing to present the investigator as a witness, waived the privilege 

with respect to matters covered in his testimony.”) (emphasis added). Similarly, in Holmgren v. State 

Farm Mut. Auto. Ins. Co., 976 F.2d 573 (9th Cir. 1992), the Ninth Circuit upheld an order compelling 

production of handwritten memoranda drafted during a litigation by an insurance adjuster (not an 

attorney) in a bad faith insurance settlement claim case. Id. at 576, 577 (“In a bad faith insurance 

claim settlement case, the strategy, mental impressions and opinion of the insurer’s agents

concerning the handling of the claim are directly at issue.”) (emphasis added, internal quotation 

omitted). 

The third case Otto Trucking cites held the exact opposite of what Otto Trucking now requests 

of this Court. In re EchoStar Commc’ns Corp., 448 F.3d 1294 (Fed. Cir. 2006) concerned an advice 

of counsel defense to a willful patent infringement claim, not any internal “team” that has put its 

involvement in an investigation at issue. Id. at 1297-98. Moreover, the Federal Circuit’s holding

supports Waymo and KVP’s position, not Otto Trucking’s. Indeed, the Federal Circuit held that the 

discovery Otto Trucking appears to seek from its subpoena through the present motion—the internal 

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WAYMO’S RESPONSE TO OTTO TRUCKING’S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER DKT. 1391

impressions of KVP not shared with Waymo—is never waived, even when work product protection is 

otherwise deemed waived through an advice of counsel defense. Id. at 1303 (“While an accused 

infringer may waive the immunity for work product that embodies an opinion in letters and 

memorandum communicated to the client, he does not waive the attorney’s own analysis and debate 

over what advice will be given.”).

Judge Corley’s orders adhere to these principles by requiring Waymo, having relied upon its 

forensic investigation into Levandowski, Raduta, and Kshirsagar, to produce all otherwise-privileged 

communications relating to that investigation. Judge Corley further ordered Waymo to produce 

documents concerning other individuals and other aspects of the overall investigation when those 

documents “can’t be separated out” from the aspects of the investigation that have been waived. Dkt. 

1441, 8/31 Tr. at 28:3-5, 39:20-40:17. Moreover, Judge Corley repeatedly explained that she did not 

intend Waymo’s compliance with her instructions to constitute a broader waiver over separate 

investigations, and that if Otto Trucking would need to make a separate motion if that was their 

request. See id. at 26:12-16. Indeed, when counsel for Otto Trucking argued that Waymo’s waiver 

should be broader because the overall investigation included employees other than Levandowski, 

Raduta and Kshirsagar, Judge Corley responded “So what, though?” (id. at 21:12-19). To the extent 

that Waymo conducted separate investigations that Waymo is not presenting or relying on in any way, 

Waymo has not waived that subject-matter, and any argument from Otto Trucking to the contrary has 

no basis in the law.

For the foregoing reasons, the Court should deny Defendant Otto Trucking’s Motion for 

Relief From Non-Dispositive Pretrial Orders of Magistrate Judge Corley. 

DATED: September 14, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

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