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NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE TO MAKE IN CAMERA SUBMISSION ISO 

OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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MILES EHRLICH (Bar No. 237954)

miles@ramsey-ehrlich.com

ISMAIL RAMSEY (Bar No. 189820)

izzy@ramsey-ehrlich.com

AMY CRAIG (Bar No. 269339)

amy@ramsey-ehrlich.com

RAMSEY & EHRLICH LLP

803 Hearst Avenue

Berkeley, CA 94710

(510) 548-3600 (Tel)

(510) 291-3060 (Fax)

Attorneys for Non-Party Anthony Levandowski

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

v.

UBER TECHNOLOGIES, INC., et al.,

Defendants.

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

NON-PARTY ANTHONY 

LEVANDOWSKI’S REQUEST FOR 

LEAVE TO MAKE IN CAMERA

SUBMISSION IN SUPPORT OF 

OPPOSITION TO WAYMO’S MOTION 

TO COMPEL 

Date: June 8, 2017

Time: 10:00 a.m.

Courtroom: F, 15th Floor

Judge: The Hon. Jacqueline Scott Corley

Trial Date: October 2, 2017

Mr. Levandowski seeks an order permitting him to file an in camera declaration to 

address the matters before the Court as a result of Waymo’s motion to compel. On May 1, 

Waymo filed a motion to compel the production of a due diligence report prepared by a vendor 

engaged pursuant to a joint defense agreement. Mr. Levandowski is a party to that agreement. 

The central issue for the Court’s determination is whether the due diligence report is protected by 

valid attorney-client, attorney work product, and common interest privileges. Mr. Levandowski 

Case 3:17-cv-00939-WHA Document 382 Filed 05/08/17 Page 1 of 5
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NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE TO MAKE IN CAMERA SUBMISSION ISO 

OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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has filed an opposition to Waymo’s motion and a motion to join in Uber’s opposition. Mr. 

Levandowski further requests that the Court allow him to submit a declaration in support of 

those opposition briefs for in camera review. Courts allow such in camera submissions where, 

as here, an individual is faced with the choice of having to waive the very privileges at stake —

here, Mr. Levandowski’s Fifth Amendment, attorney-client, attorney work product, and 

common-interest privileges — in order to substantiate the validity of the asserted claims of 

privilege. Accordingly, we ask that this Court grant Mr. Levandowski leave to make an in 

camera submission.

A. Courts Frequently Permit In Camera Filings to Demonstrate the Application 

of a Privilege

The “practice of conducting in camera review” to evaluate privilege claims is “well 

established.” In re Grand Jury Investigation, 974 F.2d 1068, 1072 (9th Cir. 1992). The in 

camera submission of information over which a litigant claims a privilege does not destroy the 

claimed privilege, United States v. Zolin, 491 U.S. 554, 569 (1989); United States v. Bright, 596 

F.3d 683, 691 (9th Cir. 2010); In re Grand Jury Investigation, 974 F.2d at 1072, and a litigant 

may affirmatively seek to make such submissions to support his showing that the privilege 

applies, see Kerr v. United States District Court, 426 U.S. 394, 404-06 (1976); Bright, 596 F.3d 

at 691. Mr. Levandowski requests that the Court accept his in camera submission to inform its

resolution of Waymo’s motion to compel.

B. The Court Should Not Force Mr. Levandowski To Choose Between “The 

Rock And The Whirlpool” Of Waiving His Fifth Amendment Rights Or 

Supporting His Assertion Of His Fifth Amendment, Attorney-Client, 

Attorney Work Product, and Common Interest Privileges

Courts recognize that litigants should not be forced to make a “Hobson’s choice” 

between two privileges or rights. See, e.g., Simmons v. United States, 390 U.S. 377, 391-94 

(1968); Bittaker v. Woodford, 331 F.3d 715, 723-24 (9th Cir. 2003) (en banc); United States v. 

Khan, 309 F. Supp. 2d 789, 798-800 (E.D. Va. 2004); see also Garrity v. N.J., 385 U.S. 493, 

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NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE TO MAKE IN CAMERA SUBMISSION ISO 

OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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496, (1967) (describing the fear of being discharged for refusal to answer on one hand, and the 

fear of self-incrimination on the other as “a choice between the rock and the whirlpool.”) 

The remedy a court must apply to avoid the harsh consequences of such a choice will 

vary according to the circumstance at issue. Compare, e.g., Simmons, 390 U.S. at 394 (holding 

that “when a defendant testifies in support of a motion to suppress evidence on Fourth 

Amendment grounds, his testimony may not thereafter be admitted against him at trial on the 

issue of guilt unless he makes no objection”); Bittaker, 331 F.3d at 728 (affirming the grant of a 

protective order limiting the scope of the privilege waiver that arises when a habeas petitioner 

makes a claim of ineffective assistance of counsel). One commonplace — and “relatively 

costless,” see Kerr, 426 U.S. at 405 — remedy is to permit a party to make an in camera

submission that demonstrates the predicates he must establish to protect one privilege without 

revealing information he is otherwise privileged to keep confidential. See United States v. 

Augustiniak, No. CR-03-1167-PHX-DGC, 2006 U.S. Dist. LEXIS 11257 at *12-13 (D. Ariz. 

Mar. 8, 2006); United States v. Tomison, 969 F. Supp. 587, 593-94 (E.D. Cal. 1997); United 

States v. Beckford, 964 F. Supp. 1010, 1018-20 (E.D. Va. 1997); United States v. Reyes, 162 

F.R.D. 468, 470-71 (S.D.N.Y. 1995); United States v. Florack, 838 F. Supp. 77, 78-80 

(W.D.N.Y. 1993). 

Here, as Mr. Levandowski has previously emphasized, see, e.g., Docket No. 244 at 3-4, 

the allegations in Waymo’s complaint implicate Mr. Levandowski’s Fifth Amendment privilege 

against self-incrimination. The complaint alleges that Mr. Levandowski was involved in 

“steal[ing]” and “misappropriat[ing]” intellectual property. See, e.g., Docket No. 23 ¶¶ 10, 11 & 

p. 11 § IV.D. These claims conjure the threat of criminal sanction under 18 U.S.C. § 1832 or 

other similar federal or state statutes. 

The inquiry now before this Court implicates these same Fifth Amendment concerns, as 

Waymo seeks records that relate to joint-defense communications that occurred shortly after Mr. 

Levandowski left Waymo. Mr. Levandowski has consistently asserted his Fifth Amendment 

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NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE TO MAKE IN CAMERA SUBMISSION ISO 

OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

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privilege with respect to those communications. See, e.g., Docket No. 131 (3/29/2017 Tx) at 5-

26; Docket No. 147. 

Mr. Levandowski faces a potential choice between “the rock and the whirlpool.” On the 

one hand, Mr. Levandowski has a Fifth Amendment right against self-incrimination, and may 

refuse to speak about events, communications, and thought processes that occurred in the crucial 

days and months after Mr. Levandowski left Waymo’s employ. On the other hand, he seeks to 

protect communications as privileged under the attorney-client, common interest, and work 

product doctrines — but addressing the factual predicates for those privileges may necessarily 

entail the disclosure of information about events, communications and thought processes that 

occurred in the crucial days and months after Mr. Levandowski left Waymo’s employ. In short, 

Mr. Levandowski cannot fully explain to the Court the basis for the application of the common 

interest, attorney-client, or work product privileges to the communications at issue without 

risking a waiver of his Fifth Amendment privilege against self-incrimination. 

The Court should permit Mr. Levandowski to submit an in camera declaration that will 

(a) establish the application of the asserted privileges to the materials sought by Waymo, while 

still (b) maintaining in confidence information that may be protected by Mr. Levandowski’s Fifth 

Amendment privilege against self-incrimination or the common interest, attorney-client or work 

product privileges.

Date: May 8, 2017 Respectfully submitted, 

/s/

Miles Ehrlich

Ismail Ramsey

Amy Craig

Ramsey & Ehrlich

Counsel for Non-Party Anthony 

Levandowski 

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NON-PARTY ANTHONY LEVANDOWSKI’S REQUEST FOR LEAVE TO MAKE IN CAMERA SUBMISSION ISO 

OPPOSITION TO WAYMO’S MOTION; [PROPOSED] ORDER

Case No. 3:17-00939-WHA

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[PROPOSED] ORDER

Non-party Anthony Levandowski may submit an in camera declaration in support of his 

and the defendants’ opposition to Waymo’s Motion to Compel Withheld Information.

DATE: ________________ ________________________________

JACQUELINE SCOTT CORLEY 

UNITED STATES MAGISTRATE JUDGE

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