DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 1172) 

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

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MICHAEL A. JACOBS (CA SBN 111664)

MJacobs@mofo.com 

ARTURO J. GONZÁLEZ (CA SBN 121490) 

AGonzalez@mofo.com 

ERIC A. TATE (CA SBN 178719) 

ETate@mofo.com 

MORRISON & FOERSTER LLP

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

Facsimile: 415.268.7522 

KAREN L. DUNN (Pro Hac Vice) 

kdunn@bsfllp.com 

HAMISH P.M. HUME (Pro Hac Vice) 

hhume@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

1401 New York Avenue, N.W. 

Washington, D.C. 20005 

Telephone: 202.237.2727 

Facsimile: 202.237.6131 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. 

and OTTOMOTTO 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

DEFENDANT UBER 

TECHNOLOGIES, INC. AND 

OTTOMOTTO, LLC’S MOTION FOR 

RELIEF FROM NONDISPOSITIVE 

PRETRIAL ORDER OF 

MAGISTRATE JUDGE (DKT. 1172) 

Judge: The Honorable William Alsup 

Trial Date: October 10, 2017

Case 3:17-cv-00939-WHA Document 1228 Filed 08/16/17 Page 1 of 7
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DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 1172) 

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

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Pursuant to Local Civil Rule 72-2, Defendants Uber Technologies, LLC and Ottomotto 

LLC (collectively, “Uber”) object to the Order regarding Uber’s Waiver of Privileged 

Communications (Dkt. 1172) as clearly erroneous and contrary to law. FED. R. CIV. P. 72(a). 

I. The Order’s Holding That The March 29, 2017 Meeting Was Privileged Is Clearly 

Erroneous and Contrary to Law. (Order at 5-9) 

On March 29, 2017, Travis Kalanick, in the presence of Uber in-house counsel Angela 

Padilla, pressed Anthony Levandowski about his downloading of Google files. As Mr. Kalanick 

testified, Mr. Levandowski explained that he downloaded the files because he “was incredibly 

worried at the time about a very large bonus he was supposed to get from Google. And he felt, 

essentially, like Google was going to stiff him on his bonus. And he wanted to – he wanted to 

have the sort of the work that he did, so he could show that he earned that bonus.” Kalanick Tr. 

91:21-92:2 (Dkt. 1088-1). In so stating, Mr. Levandowski did not seek legal advice from Ms. 

Padilla. Nor did Ms. Padilla provide any legal advice to Uber in response. Padilla Decl. (Dkt. 

1082-1) ¶ 7. But the Order found that these communications were attorney-client privileged 

because “the purpose of the March 29 meeting between Mr. Levandowski, Mr. Kalanick, and Ms. 

Padilla was to learn information from then-Uber executive Mr. Levandowski to enable to Ms. 

Padilla and her colleagues to advise their client—Uber—about how to proceed in this lawsuit.” 

Order at 6. For the following reasons, that ruling is clearly erroneous and contrary to law.1

 

First, the Order erred by relying on its inference as to the purpose of the meeting rather 

than conducting an analysis of the specific communications at issue. The Order was based on the 

inference that Ms. Padilla attended the March 29 meeting to provide legal advice. Order at 6. That 

inference was not supported by the facts, which show only that Ms. Padilla accompanied Mr. 

Kalanick to a meeting in which Mr. Kalanick was trying to understand what it was that Mr. 

Levandowski had done, and why. The Ninth Circuit has held that the privilege analysis must 

focus on the nature of the “specific communications” at the meeting, not the general purpose of 

the meeting. See United States v. Martin, 278 F.3d 988, 1000 (9th Cir. 2002). As Martin

 

1

 This motion must address several arguments not made by Waymo and presented for the first 

time in the Order. Thus, Uber’s objections to those arguments are properly before this Court. 

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instructs, for a communication to be privileged, it “must be between the client and lawyer for the 

purpose of obtaining legal advice,” and each specific communication must be evaluated 

independently. Id. (“A party claiming the privilege must identify specific communications and 

the grounds supporting the privilege”). Moreover, the law requires a finding that the “primary 

purpose” of the communication was to obtain legal advice. See United States v. ChevronTexaco 

Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002) (“With respect to internal communications 

involving in-house counsel . . . the proponent of the privilege must demonstrate that the primary 

purpose of the communication was securing legal advice.”). 

Here, Mr. Levandowski’s statements to Mr. Kalanick concerning the reason for his 

downloading were not made for the purpose of obtaining legal advice, let alone for the “primary 

purpose” of obtaining legal advice. The Order’s factual inferences to the contrary are clearly 

erroneous. Mr. Levandowski was answering to Mr. Kalanick, his supervisor and the CEO, 

because Mr. Kalanick was “pressing Mr. Levandowski about what happened,” Padilla Decl. ¶ 6, 

and because Mr. Kalanick wanted Mr. Levandowski to provide Mr. Kalanick with the relevant 

facts, Kalanick Tr. 91:2-5. This is the precise type of non-privileged communication between a 

business superior and subordinate that happens regularly in corporate organizations with and 

without attorneys present. This communication called for no response or input by Ms. Padilla, 

and, indeed, could have happened in exactly the same way were Ms. Padilla not present. 

Further, as in-house counsel, it is common for Ms. Padilla to be at meetings, like this one, 

in which she was not asked to provide legal advice or in which she made a statement for purposes 

other than to obtain (or give) legal advice. Because in-house counsel “may act as integral players 

in a company’s business decisions or activities . . . to demonstrate that an internal communication 

involving in-house counsel deserves privileged status, a party therefore must make a clear 

showing that the speaker made the communication for the purpose of obtaining or providing legal 

advice.” Oracle Am. Inc. v. Google, Inc., 2011 WL 3794892, at *4 (N.D. Cal. Aug. 26, 2011). 

Nothing in the record provides that required “clear showing.” Uber evaluated the specific 

communications that occurred during this meeting and determined they were not privileged, just 

as it has produced documents on which Ms. Padilla is copied but contain no communications 

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related to the provision of legal advice. E.g., Ex. 1. “[I]t is well settled that merely copying an 

attorney on an email does not establish that the communication is privileged.” IP Co., LLC v. 

Cellnet Tech., Inc., 2008 WL 3876481 at *3 (N.D. Cal. Aug. 18, 2008). Likewise, Ms. Padilla’s 

mere presence does not make Mr. Levandowski’s oral communication to Mr. Kalanick privileged. 

Second, even if Ms. Padilla learned facts that would allow her to later provide legal advice 

to Uber, that fact does not make Mr. Levandowski’s statements privileged. An employee’s 

communications with in-house counsel are privileged only if his statements “concern matters 

within the scope of the employee’s corporate duties and the employee is aware that the 

information is being furnished to enable the attorney to provide legal advice to the corporation.” 

Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486, 1492 (9th Cir. 1989) (citing 

Upjohn v. United States, 449 U.S. 383, 394 (1981)). Mr. Levandowski’s statements did not 

concern his “actions within the scope of [his] employment.” Upjohn, 449 U.S. at 391. They 

concerned actions he took before joining Uber and show that his reasons for those actions had 

nothing to do with Uber, let alone anything within the scope of his future employment. When a 

statement is made by a corporate employee “who, for one reason or another is not held to be 

within the corporate privilege, the communication is like that of a non-employee witness” and is 

not privileged. In re Grand Jury Subpoena, 599 F.2d 504, 510 (2d Cir. 1979); see also United 

States v. Lonich, 2016 WL 1733633, at *6 (N.D. Cal. May 2, 2016) (“It would be illogical for the 

privilege to extend to a corporation where the individual through whom the corporation was 

acting did not intend to seek legal advice.”). In-house attorneys routinely gather facts from 

witnesses outside the protection of the attorney-client privilege and subsequently rely on those 

facts when providing legal advice to their client. The communications with witnesses are not 

protected by the attorney-client privilege; the communications providing advice to the client are. 

Third, Ms. Padilla’s statement echoing Mr. Kalanick’s that Uber wanted Mr. Levandowski 

to testify (a) was not legal advice to Uber and (b) was not intended to remain confidential. See 

Martin, 278 F.3d at 999 (one element of the privilege is that communications are “made in 

confidence”). Earlier that day, Uber’s outside counsel stated in Court that Uber wanted nothing 

more than for Mr. Levandowski to testify. 3/29/17 Hr’g Tr. 16:7-10 (Mr. Gonzalez: “Let me be 

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clear about something. I want you to know, it is important for me that you know this. I would 

love to put Mr. Levandowski on the stand to explain to you what happened, because I think he 

has a good story to tell.”). Nothing Ms. Padilla told Mr. Levandowski or Mr. Kalanick during the 

conversation reveals any confidential legal advice she was providing to Uber.2 Rather, Ms. 

Padilla agreed with Mr. Kalanick’s desire that Mr. Levandowski explain to the Court and Waymo 

what happened. This advice, to the extent it is advice at all, is simply not legal advice, or is 

predominantly a business judgment that Mr. Kalanick had already made about what was in the 

best interests of the company. See Wit v. United Behavioral Health, 2016 WL 258604, at *3 

(N.D. Cal. Jan. 21, 2016) (“The privilege does not extend to business advice or other non-legal 

advice, even if it is provided by a client’s attorney.”); Stoffels v. SBC Commc’ns, Inc., 263 F.R.D. 

406, 411 (W.D. Tex. 2009) (as to communications with in-house counsel, “the attorney-client 

privilege attaches only to communications made for the purpose of giving or obtaining legal 

advice or services ... [and t]he critical inquiry is, therefore, whether any particular 

communication facilitated the rendition of predominantly legal advice or services to the client.”). 

Finally, in seeking waiver, it was Waymo’s burden to prove the communications were 

privileged. United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000); Order at 5 (“Waymo, as 

the party asserting the privilege applies, bears the burden of proof.”). Rather than attempting to 

show all elements of the privilege were met, Waymo only argued that the communication was 

privileged because an attorney was present; this fact does not satisfy their burden. See United 

States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (“The fact that a person is a lawyer does not 

make all communications with that person privileged.”); Martin, 278 F.3d at 999 (listing eight 

elements necessary for a communication to be attorney-client privileged). Thus, in filling 

Waymo’s gaps, the Order made clearly erroneous findings of fact about the nature of the 

communications at issue, because the record evidence demonstrates that these communications 

did not occur in order to obtain or provide confidential legal advice. See Seller Agency Council, 

 

2

 For the same reason, Ms. Padilla’s statements do not in any way support an inference that Mr. 

Levandowski provided his bonus explanation for the purpose of obtaining legal advice. 

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Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir. 2010) (a fact finding 

is “clearly erroneous if it is . . . without support in inferences that may be drawn from the facts in 

the record”); Lamon v. Adams, 2014 WL 172352, at *2 (E.D. Cal. Jan. 15, 2014) (“Inferences are 

not drawn from the air, and it is the opposing party’s obligation to produce a factual predicate 

from which the Court may draw the inferences.”). Therefore, the Order’s legal conclusion that 

Uber’s attorney-client privilege applies to Mr. Levandowski’s communications with Mr. Kalanick 

and Ms. Padilla is contrary to law. See Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 422 (C.D. 

Cal. 1999) (“[L]egal conclusions are freely reviewable de novo to determine whether they are 

contrary to law.”); cf. United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (district court’s 

rulings on scope of attorney-client privilege are reviewed de novo). 

II. Because The Communications Were Not Privileged, Uber Has Not Waived Any Of 

Its Privileges. (Order at 9-10) 

The Order’s holding that Uber’s disclosure was a deliberate waiver is contrary to law. 

Without a disclosure of privileged information, there is no waiver. While Judge Corley offered 

Uber the opportunity to withdraw the potential waiver during the hearing on this motion, Uber’s 

decision not to do so was based on its continued good faith belief, reached after a careful analysis 

of the issues,3

 that these communications were not privileged, and hence Uber did not make a 

deliberate waiver. Order at 10. More generally, under the circumstances presented here, where a 

party has a good-faith belief that communications at issue are not privileged, the party should not 

be forced to decide whether to rescind a purported waiver of privilege until the question of 

whether the material was privileged is fully adjudicated. See Advert. to Women, Inc. v. Gianni 

Versace S.p.A., 1999 WL 608711, at *5 (N.D. Ill. Aug. 4, 1999).

 

3

 If the Court affirms Judge Corley’s ruling, additional briefing is required before the Court can 

decide whether Uber should be precluded from offering evidence within the waiver’s scope. See

Dkt. 438 (May 15 Order regarding privilege waiver before June 1). We read the May 15 Order as 

applying to deliberate waivers, not waivers resulting from a good faith belief that a 

communication was not privileged. Moreover, the parties and Court were, at the time of that 

submission, focused on the privilege issues associated with the due diligence, and in the 

beginning stages of fact discovery and investigation. Indeed, Mr. Kalanick’s personal tragedy 

shortly before the June 1 deadline prevented Uber’s outside counsel from learning all facts related 

to this meeting for some time.

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DEFENDANTS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER (DKT. 1172) 

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Dated: August 16, 2017 MORRISON & FOERSTER LLP 

BOIES SCHILLER FLEXNER LLP 

By: /s/ Karen L. Dunn 

KAREN L. DUNN 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. and 

OTTOMOTTO LLC 

Case 3:17-cv-00939-WHA Document 1228 Filed 08/16/17 Page 7 of 7