LEVANDOWSKI’S MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE; 

AND [PROPOSED] ORDER Case No. C 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.: C 17-00939 WHA 

NON-PARTY ANTHONY 

LEVANDOWSKI’S NOTICE OF 

MOTION AND MOTION FOR RELIEF 

FROM NONDISPOSITIVE PRETRIAL 

ORDER OF MAGISTRATE JUDGE; 

AND [PROPOSED] ORDER 

NOTICE OF MOTION AND MOTION 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that non-party Anthony Levandowski seeks relief pursuant to 

Fed. R. Civ. P. 72(a) and 28 U.S.C. § 636(b)(1)(A) from the order of Magistrate Judge Corley 

granting Waymo LLC’s motion to compel production of a report generated by Stroz Friedberg, 

LLC. See Dkt. 566. We ask the Court to set aside Judge Corley’s order and deny Waymo’s 

motion to compel. 

This motion is based on this notice of motion and motion, the below memorandum of 

points and authorities, the pleadings, files, and records in this case, as well as other written or 

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oral argument which may be presented at the hearing. 

Date: June 8, 2017 Respectfully submitted, 

 

 /s/ 

 Miles Ehrlich 

 Ismail Ramsey 

 Amy Craig 

 Ramsey & Ehrlich LLP 

Counsel for Non-Party Anthony 

Levandowski 

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LEVANDOWSKI’S MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE; 

AND [PROPOSED] ORDER Case No. C 17-00939 WHA 

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MEMORANDUM OF POINTS AND AUTHORITIES 

On June 5, 2017, Magistrate Judge Corley granted Waymo LLC’s motion to compel 

production of a report generated by Stroz Friedberg, LLC. Dkt. 549 & 566. Non-party Anthony 

Levandowski objected that the report and its attachments are protected by the common interest, 

attorney-client, and attorney work product privileges. Because Judge Corley’s order denying 

these privilege claims rested on three fundamental errors, pursuant to Federal Rule of Civil 

Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A), the Court should set aside Judge Corley’s order 

and deny Waymo’s motion.1

I. Objection 1: In a Common Interest Group, the Privilege Protects More than Just the 

Sharing of Already-Privileged Information Between Attorneys

 Judge Corley ruled that communications between Mr. Levandowski and Stroz were not 

protected by the attorney-client privilege as extended by the common interest privilege. Dkt. 566 

at 11-13. Central to this conclusion was Judge Corley’s holding that the common interest 

privilege solely protects information that is initially communicated by a party to his or her own 

attorney in an attorney-client privileged manner and only later communicated between attorneys 

engaged in a common interest arrangement. Id. at 11-13. As the information at issue here was 

not first communicated by Mr. Levandowski to his own attorney, but was instead communicated 

to Stroz in the first instance, id. at 6-10, Judge Corley opined that the communications with Stroz 

could not be protected by the common interest privilege: 

In all of the cases cited by Uber and Levandowski, the document or communication 

was protected by the attorney-client privilege before counsel provided it to another 

party. The circumstances here are different. Levandowski, without his attorney 

present, gave an interview in his individual capacity to Stroz, an agent for Otto’s 

separate counsel and Uber’s separate counsel. 

Id. at 13. That ruling was contrary to law: the common interest privilege protects more than just 

communications between the client and his own lawyer or his own lawyer’s agents. 

 A joint-defense or common interest agreement “establishes an implied attorney-client 

relationship” between each of the attorneys and parties involved. United States v. Henke, 222 

 

1 Mr. Levandowski hereby joins and adopts Parts II-IV of the objections to Judge Corley’s order 

filed by Otto Trucking. Dkt. 572.

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F.3d 633, 637 (9th Cir. 2000). Once the joint defense relationship is established, “[t]he joint 

defense privilege . . . protects not only the confidentiality of communications passing from a 

party to his or her attorney but also ‘from one party to the attorney for another party where a 

joint defense effort or strategy has been decided upon and undertaken by the parties and their 

respective counsel.’” United States v. Austin, 416 F.3d 1016, 1021 (9th Cir. 2005) (emphasis 

added, quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)); see also United 

States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (citing Austin and the principle set out 

above); Nidec Corp. v. Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (“Participants in a joint 

or common defense or individuals with a community of interests ‘may communicate among 

themselves and with the separate attorneys on matters of common legal interest, for the purpose 

of preparing a joint strategy, and the attorney-client privilege will protect those communications 

to the same extent as it would communications between each client and his own attorney.’” 

(emphasis added)). As the Ninth Circuit has held, “the rationale for the joint defense rule” is that 

“persons who share a common interest in litigation should be able to communicate with their 

respective attorneys and with each other to more effectively prosecute or defend their claims.” 

Gonzalez, 669 F.3d at 978 (emphasis added). 

Moreover, for the common interest privilege to apply, it is not “necessary for the attorney 

representing the communicating party to be present when the communication is made to the 

other party’s attorney.” Schwimmer, 892 F.2d at 244. In Schwimmer, Schwimmer and Renda 

were the subjects of a grand jury investigation. The court found that statements made by 

Schwimmer to an “accountant hired by Renda’s attorney” were “protected by the attorney-client 

privilege”—even though Schwimmer’s attorney was not present during the statements. Id. at 

241, 244; see also United States v. McPartlin, 595 F.2d 1321, 1336-37 (7th Cir. 1979);

Corporate Express Office Prods. v. Gamache (In re Wagar), No. 1:06-MC-127 (LEK/RFT), 

2006 U.S. Dist. LEXIS 90345 at *39 (S.D.N.Y. Dec. 13, 2006). 

Accordingly, the law contradicts Judge Corley’s ruling that, because Mr. Levandowski 

communicated directly with the agent for another party’s attorney, his communications with 

Stroz were not protected by the common interest privilege. The privilege does protect such 

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communications, so long as a common interest agreement has been established.2

 As set out in 

the litigants’ previous papers, Dkt. 369, 370, 372, 374, 375, 376, 378, 379, 380, 381, 383, 384, 

and in this brief, infra, the evidence establishes that such an agreement was in force at the time of 

Mr. Levandowski’s communications to Stroz. 

II. Objection 2: Mr. Levandowski, Otto, and Uber Shared a Common Legal Interest

 Judge Corley next found that Uber, Otto, and Mr. Levandowski lacked a “common legal 

interest” at the time of Mr. Levandowski’s communications to Stroz, and thus that the common 

interest privilege could not apply. Dkt. 566 at 15, 20. That finding was clearly erroneous. 

 As Judge Corley’s order itself makes clear, prior to the engagement of Stroz, Uber, Otto, 

Mr. Levandowski, and others entered into an agreement (the “Term Sheet”) that required Uber—

regardless whether it ended up purchasing Otto—to indemnify Otto and Mr. Levandowski 

against third party actions alleging misappropriation of trade secrets or other violations. Id. at 2-

3. Plainly, once this Term Sheet was signed, this indemnity obligation gave Uber, Otto, and Mr. 

Levandowski an immediate shared legal interest in the facts that might underlie an action that 

Uber would be required to defend. Cf., e.g., Lectrolarm Custom Sys. v. Pelco Sales, Inc., 212 

F.R.D. 567, 572-73 (E.D. Cal. 2002) (finding that the common interest privilege protected 

communications between an insurer defending an insured party). 

 To the extent Judge Corley concluded that entities engaged as buyers and sellers in a 

potential transaction cannot have a common legal interest, see Dkt. 566 at 15, that conclusion is 

contrary to law. See, e.g., In re Regents of the Univ. of Cal., 101 F.3d 1386, 1390 (Fed. Cir. 

1996) (holding that an inventor/patentee and a potential licensee have a common legal interest in 

successfully prosecuting patent applications); Rembrandt Patent Innovations, LLC v. Apple Inc., 

No. C 14-05094 WHA, 2016 U.S. Dist. LEXIS 13749 at *23-24 (N.D. Cal. Feb 4, 2016); 

Rayman v. Am. Charter Fed. Sav. & Loan Ass’n, 148 F.R.D. 647, 655 (D. Neb. 1993); HewlettPackard Co. v. Bauch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D. Cal. 1987). 

 

2

 As the common interest privilege is “an extension of the attorney-client privilege,” Henke, 222 F.3d at 

637, any records provided by Mr. Levandowski to Stroz must likewise be protected from disclosure under 

the reasoning of Fisher v. United States, 425 U.S. 391, 405 (1975). 

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III. Objection 3: Stroz Drafted its Report in Furtherance of a Common Legal Strategy

 Judge Corley also committed clear error by finding that, even if Uber, Otto, and Mr. 

Levandowski shared a common legal interest, Stroz’s investigation and report were not 

undertaken to vindicate that legal interest. Dkt. 566 at 15-21. 

 First: This ruling ignores sworn declarations of five attorneys and Stroz’s president, each 

of whom attests that Stroz was retained for a litigation purpose. Dkt. 370 ¶¶ 9-10; Dkt. 375 ¶ 3; 

Dkt. 376 ¶ 11; Dkt. 378 ¶¶ 2-3, 5-6, 9; Dkt. 380 ¶ 3; Dkt. 381 ¶¶ 3-6. 

Second: Judge Corley’s order disregards the fact that the attorneys involved in the Stroz 

investigation efforts and communications were Uber’s litigation counsel, not separate corporate 

transactional counsel engaged to handle the Uber-Otto deal—and the Stroz materials were not 

shared with transactional counsel. See, e.g., Dkt. 370 ¶¶ 3 & 9-10, 20; Dkt. 375 ¶ 3; Dkt. 378 ¶¶ 

2-5; Dkt. 381 ¶¶ 4-6; Dkt. 383 ¶¶ 2-3. This is strong evidence that Stroz was engaged to gather 

information relevant to potential litigation, not to guide the decision whether to “sign the Put Call 

Agreement,” see Dkt. 566 at 15-16, or any other business matter. Indeed, even if the parties had 

both business and legal purposes, the privilege would still apply. Rayman, 148 F.R.D. at 654. 

 Third: Prominent in Judge Corley’s reasoning were erroneous conclusions about an 

engagement letter between Stroz and the joint-defense participants. The letter expressly recites 

that the engagement was designed to “understand certain factual matters potentially related to 

potential litigation,” but Judge Corley found the letter unpersuasive evidence of the parties’ 

intent at the relevant time because, according to Judge Corley, the letter—which on its face is 

dated “as of March 4, 2016”—was not executed until April 11, 2016. Dkt. 566 at 18-19. Judge 

Corley’s conclusions were incorrect and miss important facts. 

 In the Ninth Circuit, a common interest agreement may be established orally or “implied 

from conduct and situation.” Gonzalez, 669 F.3d at 979. The declarations of the involved 

parties clearly demonstrate that the engagement letter’s recitation of the litigation-related 

purpose of the common interest agreement—like similar language in the formal Joint Defense 

and Common Interest Agreement—merely confirmed an existing oral understanding that was 

reached no later than March 11, 2016. Dkt. 381 ¶¶ 3-4, 6, 8-9; see also Dkt. 370 ¶¶ 12-14; Dkt. 

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375 ¶¶ 5-8; Dkt. 376 ¶¶ 8-9; Dkt. 378 ¶¶ 5-8; Dkt. 380 ¶ 5. Judge Corley’s focus on the date this 

particular letter was signed misses the mark; the parties to the common interest agreement were 

not required to memorialize the agreement in writing at all, and the uncontradicted evidence 

demonstrates that the parties had at least an oral agreement at all times relevant here. 

 Fourth: Judge Corley seized on a sentence included by Mr. Levandowski’s counsel in 

March 2016 letters to Stroz stating that Mr. Levandowski and Otto shared a “common legal 

interest in the subject matter of the Stroz Examination,” without mentioning Uber in the same 

breath. Dkt. 566 at 4, 17. But this phrase emphasizes that Mr. Levandowski and Otto both had a 

“common legal interest”—rather than an adversarial, or purely business, interest—in the “subject 

matter” of Stroz’s investigative work. This confirms, rather than refutes, the conclusion that the 

Stroz work was done in service of a common interest agreement including Levandowski. The 

omission of Uber here hardly negates uncontradicted sworn declarations demonstrating that he 

was already party to a common interest agreement including Uber and Otto. 

Fifth: Relatedly, Judge Corley apparently concluded that Mr. Levandowski was not 

seeking legal advice when he participated in the Stroz investigation. Dkt. 566 at 8. This 

conclusion is belied by the uncontradicted declaration of Mr. Levandowski’s counsel, who 

describes that he and Mr. Levandowski participated in the investigation in order to evaluate 

litigation risks and generate litigation strategy. Dkt. 381 ¶¶ 3-6, 11.3

V. Request for Additional Briefing

 Civil Local Rule 72-2 confines to five pages a litigant’s objections to a magistrate judge’s 

non-dispositive order. In light of the important interests involved and the complicated 

underlying factual scenario—which yielded a 24-page order—Mr. Levandowski requests that the 

Court order more extensive briefing on this motion.4

 

3

 Judge Corley denied Mr. Levandowski’s request to file an in camera submission to support his 

opposition to Waymo’s motion to compel. Dkt. 566 at 7; Dkt. 382. We object that this ruling deprived 

Mr. Levandowski of a significant opportunity to support his opposition without waiving his privileges. 4 Given the importance of the issues at stake, if this Court upholds Judge Corley’s order, we respectfully 

request a brief stay while Mr. Levandowski files an appeal and/or mandamus petition at the Federal 

Circuit. See Regents of University of California, 101 F.3d at 1387.

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Dated: June 8, 2017 Respectfully submitted, 

 

 /s/ 

 Miles Ehrlich 

 Ismail Ramsey 

 Amy Craig 

 Ramsey & Ehrlich LLP 

 

Counsel for Non-Party Anthony 

Levandowski 

 

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[PROPOSED] ORDER 

 On June 5, 2017, Magistrate Judge Corley issued an order granting Waymo LLC’s 

motion to compel production of a report authored by Stroz Friedberg, LLC. Dkt. 566. This 

Court finds under Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A) that Judge 

Corley’s order was contrary to law and clearly erroneous. The order is hereby SET ASIDE. 

Waymo’s motion to compel, Dkt. 321, is DENIED. 

DATE: ________________ ________________________________ 

HONORABLE WILLIAM ALSUP 

UNITED STATES DISTRICT JUDGE 

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