August 17, 2017 

Magistrate Judge Jacqueline Scott Corley 

U.S. District Court, Northern District of California 

San Francisco Courthouse Courtroom F – 15th Floor 

450 Golden Gate Avenue 

San Francisco, California 94102 

Re: Waymo LLC v. Uber Technologies, Inc., et al., No. C 17-00939-WHA 

Dear Magistrate Judge Corley: 

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

their supplemental briefing pursuant to Your Honor’s August 14 Order (Dkt. 1172) (the 

“Order”). 

Uber filed objections (Dkt. 1228) to the Order because Uber respectfully disagrees with 

its holding that Anthony Levandowski’s statements to Uber’s former CEO Travis Kalanick and 

in-house counsel Angela Padilla about his reasons for downloading Google files and invoking 

the Fifth Amendment, and Mr. Kalanick’s and Ms. Padilla’s statements in response, are 

privileged. As such, Uber respectfully disagrees that it has waived any privilege. 

But, if Judge Alsup upholds the Order by also finding that those statements are 

privileged, then Uber agrees that it is not able to unilaterally waive all privileges in those 

communications. At the August 9 hearing, your Honor raised the possibility that the parties’ 

common legal interest may prevent a subject matter waiver. 8/9/17 Hr’g Tr. at 37:22-38:2. 

After that hearing, Mr. Levandowski’s counsel informed Uber’s counsel that Mr. Levandowski is 

asserting and not waiving his personal attorney-client privileges with respect to the March 29 

meetings under the common interest doctrine. See Ex. 1, Aug. 11, 2017 Ltr. Because of this 

letter and the April 11, 2016 Joint Defense, Common Interest and Confidentiality Agreement 

(Dkt. 370-2), which was in effect as of March 29 (but from which Uber has subsequently 

withdrawn and terminated), and in light of the governing case law, Uber is not in a position to 

disavow its obligations in effect at that time. 

The common interest doctrine protects a privileged communication where “(1) the 

communication is made by separate parties in the course of a matter of common interest; (2) the 

communication is designed to further that effort; and (3) the privilege has not been waived.” 

Ellis v. J.P. Morgan Chase & Co., No. 12CV03897YGRJCS, 2014 WL 1510884, at *6 (N.D. 

Cal. Apr. 1, 2014). Mr. Levandowski was contemplating invoking the Fifth Amendment about 

the time these communications took place. While potential adversity was beginning to develop 

between the parties in light of his consideration of invoking the Fifth Amendment, the parties did 

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share privileged communications as to that issue under the protection of the common interest 

agreement in effect at that time. 

Thus, in response to the Court’s three questions, Uber provides the following answers: 

(1) Whether “Mr. Levandowski has an individual attorney-client privilege in 

communications that would be swept within the scope of Uber’s subject matter 

waiver” 

Mr. Levandowski has an individual attorney-client privilege in any communications that 

would be swept within the scope of a waiver covering communications between Mr. 

Levandowski and Uber about his reasons for downloading Google files and for invoking the 

Fifth Amendment. See 8/9/17 Hr’g Tr. 31:4-7 (The Court, describing the scope of the waiver as 

“What [Mr. Levandowski] said about why he downloaded the files, about why he’s pleading the 

Fifth, and whatever was said back to him about that”); 25:24-26:2 (Waymo’s counsel stating that 

the scope of the waiver is “why he downloaded the files and what -- whether or not they should 

be taking the Fifth Amendment, and their attempt to persuade him not to, according to them.”).1 

Based on Mr. Levandowski’s counsel’s August 11 letter, Mr. Levandowski is asserting an 

individual attorney-client privilege with respect to all of his privileged communications, 

including in the presence of his attorneys, as well as others, covered by the parties’ then-existing 

common interest agreement that would fall within the scope of that waiver. 

(2) Whether “Uber can waive the privilege with respect to those communications if 

Mr. Levandowski has an individual attorney-client privilege” 

Uber cannot waive privilege with respect to communications in which Mr. Levandowski 

has an individual attorney-client privilege. See United States v. Gonzalez, 669 F.3d 974, 982 (9th 

Cir. 2012) (“[T]he case law is clear that one party to a JDA cannot unilaterally waive the 

privilege for other holders.”) (collecting cases). 

(3) “If Uber cannot, whether in fairness Uber should be allowed to waive the 

privilege with respect to the communications in which Mr. Levandowski does 

not claim an individual privilege” 

Due to Mr. Levandowski’s privilege claims, Uber cannot unilaterally waive privilege in 

its communications with Mr. Levandowski about his reasons for downloading Google files and 

invoking the Fifth Amendment. As such, if the Court denies Uber’s objections to the Order, 

Uber will be unable to present evidence at trial of the conversations among Mr. Levandowski, 

Mr. Kalanick, and Ms. Padilla on March 29, 2017. Uber reserves all rights to present any nonprivileged evidence about Mr. Levandowski’s reasons for downloading Google files, including 

but not limited to any non-privileged statements he made on those topics if, in the course of our 

continued fact investigation, we discover such evidence. 

 

1 During the Special Master-supervised conferral with Waymo about this supplemental briefing, 

Waymo confirmed its view that this is the proper scope of any waiver. 

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Respectfully Submitted, 

 /s Karen L. Dunn 

 Karen L. Dunn 

 Counsel for Uber Technologies, Inc. and Ottomotto LLC 

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