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Writer’s Direct Contact 

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July 14, 2017 

The Honorable 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., Case No. 3:17-cv-00939 

Dear Magistrate Judge Corley: 

Defendants Uber Technologies, Inc. and Ottomotto LLC (“Uber”) submit the attached 

response to Waymo’s letter brief in support of its motion to compel Uber to (1) provide a 

further response to Expedited Interrogatory Nos. 24, 25, and 26, and (2) produce additional 

documents in response to Requests for Production Nos. 1, 30, 42, 74, 85, 91, 98, 99, 110, 

117, and 145 (Waymo’s July 12, 2017, Discovery Letter Brief (hereinafter “Mot.”), Dkt. No. 

879). 

Interrogatory No. 26 (Describe Pre-Signing Bad Acts) 

Through the parties’ ongoing meet and confer efforts, Uber agreed to supplement its 

response to this Interrogatory and has agreed to produce non-privileged documents in 

response to this request. Uber’s supplementation satisfies its obligations under the federal 

rules, and to date Waymo has not objected to the sufficiency of Uber’s proposed 

supplementation. 

RFP No. 30 (Consulting Work by Levandowski), 98, 99 (Levandowski Input Into Any 

Component, Testing, Assembly, Tuning, Calibration), 110 (Documents Brought by Former 

Waymo Employees to Defendants), 145 (Documents Regarding Design or Development 

that Reference Waymo); Expedited Interrogs. 24 and 25 (Components that Levandowski 

Did and Did Not Contribute To) – Alleged Non-LiDAR Trade Secrets 

To date, Waymo’s case against Uber has focused entirely on alleged misappropriation of 

LiDAR-related trade secrets. In its amended complaint, Waymo alleged that: 

 “Waymo experimented with, and ultimately developed, a number of different costeffective and high-performing laser sensors known as LiDAR.” (Dkt. No. 23 ¶ 2.) 

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A search for “indemnification agreement” in Uber’s document review database for this 

litigation brings back more than 4,000 documents, and that number balloons to more than 

8,000 when cover emails and attachments are included. (Rivera Decl. ¶ 10.) This Request 

purports to require the production of the vast majority of those documents. It also purports to 

require the production of all documents after April 11, 2016, that in any way refer to even a 

single term from the 21-page Agreement. It is not even clear how Uber could possibly 

ascertain that population of documents. 

Moreover, a great many of those documents will be privileged. Uber’s counsel, both inhouse and outside, were substantially involved in the negotiation, drafting, and discussion of 

the indemnity obligation (along with all of the acquisition documents), such that a huge 

swath of responsive documents will be documents and communications internal to Uber 

involving legal analysis or advice of counsel. Waymo is not entitled to those documents in 

any event, and given the extraordinarily expedited schedule in this litigation, requiring the 

production of yet another voluminous privilege log serves no productive purpose.1

As a result, this Request is not “proportional to the needs of the case, considering the 

importance of the issues at stake in the action, the amount in controversy, the parties’ relative 

access to relevant information, the parties’ resources, the importance of the discovery in 

resolving the issues, and whether the burden or expense of the proposed discovery outweighs 

its likely benefit.” Fed. R. Civ. P. 26(b)(1). 

Waymo’s “strawman” arguments do not change that conclusion. First, a “document postdating April 11, 2016 that referred to one of Mr. Levandowski’s ‘Pre-Signing Bad Acts’” 

(Mot. at 3), to the extent any exist, would be responsive to Expedited RFP No. 8 and either 

would be produced or placed on a privilege log. (Rivera Decl. Ex. 4 (Exp. RFP No. 8) 

(documents regarding actual “Pre-Signing Bad Acts”); see Dkt No. 881 (RFP No. 8).) 

Second, Waymo wrongly contends that all documents “about indemnification leading up to 

the signing . . . are relevant to what Uber knew about Mr. Levandowski’s ‘Bad Acts’ and 

when they knew it.” (Mot. at 3.) Uber already served and the parties have litigated the 

privilege logs for documents and communications concerning potential downloading by Mr. 

Levandowski. “All documents about indemnification” will not yield that information. 

Third, the documents and communications Waymo cites would be produced pursuant to 

 

1

 Indeed, with respect to several RFPs for documents related to the merger, at the Special 

Master’s urging the parties agreed to table Uber’s obligation to prepare a privilege log, and if 

it is determined that a log is necessary, the presumption is that it will be a categorical log 

rather than a document-by-document log, with Waymo needing to show “good cause” for 

anything more than that. (Mot., Ex. 5 at 3.) If the Court concludes that a privilege log is 

required for the full scope of RFP No. 42, Uber submits that it should be subject to the 

agreement reached between the parties in consultation with the Special Master. 

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Uber’s agreement to produce non-privileged communications between Travis Kalanick, 

Brian McClendon, or John Bares, and any other person regarding Ottomotto, Otto Trucking, 

or Mr. Levandowski, before August 23, 2016, in response to RFP Nos. 164-166. (See Rivera 

Decl. Ex. 8.) In fact, the email from Cameron Poetzscher to Travis Kalanick that Waymo 

cites was indeed already produced by Uber. Fourth, Uber has agreed to produce the 

indemnification demands, responses thereto, and related non-privileged communications, so 

Waymo will have documents reflecting the terms settled on by the parties. Waymo thus does 

not need all documents post-dating April 11 that mention the Agreement or any of its terms. 

Fifth, Waymo’s contention that the documents it seeks are relevant to Uber’s possession, 

custody, or control of potential downloaded materials at Epiq makes no sense. Epiq received 

a copy of the Relativity data from Stroz at the request of Morrison & Foerster in its capacity 

as counsel for Mr. Levandowski in the arbitrations. (Dkt. No. 762 at 7.) Uber does not have 

possession, custody, or control of those materials. Sixth, Uber has produced the Agreement, 

and agreed to produce the indemnification demand, response thereto, and related nonprivileged communications, so again, Waymo does not need “all documents” to determine 

whether Uber had the authority to terminate any indemnity arrangement. The vast 

production of all documents that mention or refer to the indemnification agreement that 

Waymo seeks is unwarranted. 

RFP No. 74 (access logs reflecting Mr. Levandowski’s access of Uber’s servers from a 

personal devices) 

This Request seeks documents sufficient to show how many times Mr. Levandowski 

accessed Uber’s servers “from a personal device.” When Uber explained that no responsive 

documents exist because Uber’s records can only identify users of its systems, and not the 

devices involved, Waymo demanded all logs reflecting all instances where Mr. Levandowski 

accessed a server, whether or not they showed access “from a personal device.” Waymo 

made that demand the day before its motion to compel was due. Uber has now had the 

opportunity to consider that demand, and even though Waymo’s demand falls outside the 

scope of the Request, Uber agrees to produce the demanded logs in the spirit of compromise. 

The issue is therefore moot. 

RFP No. 91 (all documents regarding Mr. Levandowski’s “Authorized Devices”) 

Uber has no non-privileged documents responsive to Waymo’s request for all documents and 

communications regarding Mr. Levandowski’s “‘Authorized Devices’ (as that term is 

defined in UBER00006444, Section 7), [including] (without limitation) any request for 

approval in connection with Section 7.2 or any de-authorization (whether contemplated or 

effec[tua]ted) under Section 7.3.” (RFP No. 91.) Mr. Levandowski had one “Authorized 

Device” (as that term is defined in UBER00006444, Section 7), which Uber identified in its 

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Response to Expedited Interrogatory No. 3. (Rivera Decl. Ex. 5.) This fact is supported by 

paragraph 5 of the Faulkner Declaration. (See Dkt. No. 749-8 ¶ 5, discussing computer with 

serial number C02SX6KRGTFL.) Mr. Levandowski did not have any Non-Uber Devices (as 

that term is used in UBER00006444, Section 7). This fact is supported by paragraph 7 of the 

Faulkner Declaration. (Dkt. No. 749-8 ¶ 7.) Uber does not maintain documents about what 

is or is not an Uber Device or Non-Uber Device, nor does Uber have any records regarding 

approval or de-authorization (as those terms are used in UBER00006444, Section 7). 

RFP No. 85 (All documents and communications regarding Mr. Levandowski’s 

compensation-related agreements) 

It is undisputed that Uber has already produced Mr. Levandowski’s compensation-related 

agreements with Ottomotto and Uber. In response to this Request, Uber agreed “to produce 

non-privileged documents exchanged between Uber and Ottomotto (or individually with Mr. 

Levandowski) regarding the negotiation of Mr. Levandowski’s salary, bonus, and stock 

awards.” (Mot., Ex. 5 at 2.) Uber has also described in an interrogatory response the salary 

and bonus payments Mr. Levandowski actually received, as well as the fact that none of his 

stock had vested when he was terminated. It will be further supplementing that response 

pursuant to this Court’s July 12 order. (See Rivera Decl. Ex. 6 (2017.06.22 Uber’s Resp. to 

Expedited ROGs 5&8).) In light of that, the Court should reject as overbroad and unduly 

burdensome Waymo’s further demand for “[a]ll [documents] and [communications

regarding] any compensation-related agreements.” (RFP No. 85 (emphasis added).) 

Waymo’s demand would require producing – without time limitation – every piece of paper 

that merely refers to Mr. Levandowski’s compensation terms, including ministerial records 

like payroll stubs. Waymo’s highly attenuated explanation of relevance — that Waymo 

might learn from “all” these documents “what Uber knew and when Uber knew it, as well 

as . . . disclosure and use of Waymo’s trade secrets” — is based on sheer speculation. This is 

clearly a fishing expedition. 

RFP No. 1 (E-Discovery Vendor Agreement with Stroz) 

The Court should reject Waymo’s demand for Uber’s e-discovery vendor agreement for this 

litigation with its vendor, Stroz. The e-discovery agreement is irrelevant to the parties’ 

claims and defenses and contains competitively sensitive information about Stroz’s pricing 

that Quinn Emanuel as a purchaser in the e-discovery marketplace should not see. Waymo’s 

sole assertion of relevance is based on the erroneous premise that all Stroz witnesses have a 

personal financial stake in any money that Uber pays to Stroz, the firm, in its capacity as an 

e-discovery vendor. That premise simply isn’t true. Uber’s forensic expert, Mr. Faulkner, 

for example, is a Stroz employee whose compensation is unaffected by Uber’s e-discovery 

relationship with Stroz—a fact Waymo is free to explore with Mr. Faulkner in deposition. 

Moreover, Waymo’s argument that Uber was free to use any e-discovery vendor in the 

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marketplace is without merit. In part due to Waymo’s overbroad search demands, Uber 

collected and processed 235 TBs of data. Transferring that data to another vendor while 

meeting extremely short deadlines simply would have been unworkable. 

RFP No. 117 (“DOCUMENTS sufficient to show all author(s) of and contributor(s) to the 

letter to Nevada authorities, ‘RE: Clarification to Autonomous Technology Certification 

Submission,’ dated on or around March 15, 2017.”) 

Because of space limitations, Uber will not respond to Waymo’s rhetoric about the Nevada 

letter, nor to Waymo’s conclusory assertion that Uber has stonewalled as to matters that do 

not fall within the narrow confines of RFP No. 117. The issue on RFP No. 117 is this: based 

on the parties’ meet and confer, Uber understands that Waymo wants to know which Uber 

personnel contributed to the letter. Uber informed Waymo that there are no non-privileged 

documents that reflect that information. In particular, if Waymo wants to know which nonlawyers at Uber contributed, Uber would simply identify those persons for Waymo, and in 

exchange Uber would not have to prepare a privilege log. (Rivera Decl. Ex. 7 (Rivera Email 

7/14/17).) Given that Waymo did not agree to that compromise, Uber agrees to prepare a 

privilege log for its privileged, responsive documents for this Request. This Request is 

therefore resolved. 

Respectfully submitted, 

/s/ Arturo J. González 

Arturo J. González 

cc: Counsel of Record 

 Special Master John Cooper 

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