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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

Before The Honorable Jacqueline Scott Corley, Judge

WAYMO LLC, )

 ) 

 Plaintiff, )

 ) 

 VS. ) NO. CV 17-00939-WHA

 ) 

UBER TECHNOLOGIES, INC., ET )

AL., )

 ) 

 Defendants. )

 ) 

 San Francisco, California 

 Thursday, May 11, 2017 

TRANSCRIPT OF PROCEEDINGS

APPEARANCES: 

For Plaintiff: 

 QUINN EMANUEL URQUHART & SULLIVAN LLP 

 50 California Street - 22nd Floor 

 San Francisco, CA 94111 

 BY: MELISSA J. BAILY, ESQUIRE 

 DAVID A. PERLSON, ESQUIRE 

For Defendant Uber Technologies, Inc.: 

 MORRISON & FOERSTER LLP 

 425 Market Street 

 San Francisco, CA 94105 

 BY: ARTURO J. GONZALEZ, ESQUIRE 

 (Appearances continued on the next page)

Reported By: Pamela A. Batalo, CSR No. 3593, RMR, FCRR 

 Official Reporter 

Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 1 of 33
APPEARANCES CONTINUED: 

For Defendant Otto Trucking LLC: 

 GOODWIN PROCTER LLP 

 135 Commonwealth Drive 

 Menlo Park, CA 94025 

 BY: INDRA NEEL CHATTERJEE, ESQUIRE

 

For Nonparty Anthony Levandowski: 

 RAMSEY & EHRLICH LLP 

 803 Hearst Avenue 

 Berkeley, CA 94710 

 BY: MILES F. EHRLICH, ESQUIRE

 

Special Master: 

 FARELLA BRAUN & MARTEL LLP 

 235 Montgomery Street - Suite 1700 

 San Francisco, CA 94104 

 BY: JOHN L. COOPER, ESQUIRE

 

Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 2 of 33
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REALTIME ROUGH DRAFT ONLY

Thursday - May 11, 2017 2:07 p.m.

P R O C E E D I N G S

---000---

THE CLERK: Remain seated and come to order. Court is

now in session, the Honorable Jacqueline Corley presiding.

California Civil Action C 17-939, Waymo vs. Uber.

Counsel, please come up to the podium and state your

appearance.

MS. BAILY: Good afternoon. Melissa Baily and David

Perlson for Waymo.

MR. GONZALEZ: Good afternoon, Your Honor. Arturo

Gonzalez from Morrison & Foerster on behalf of Uber.

MR. CHATTERJEE: Good afternoon, Your Honor. Neel

Chatterjee of the Goodwin firm for Otto Trucking.

MR. EHRLICH: Good afternoon, Your Honor. Miles

Ehrlich of Ramsey & Ehrlich on behalf of nonparty Anthony

Levandowski.

MR. COOPER: And John Cooper, Special Master.

THE COURT: Good afternoon.

The reason I set this hearing or status was because when

Judge Alsup -- you guys must have totally worn him out at that

Preliminary Injunction hearing because shortly thereafter, I

get an email from him saying, I'm just going to give you all

discovery. 

So I wanted to set this up because I want to make sure --

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 3 of 33
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and we talked a little bit about framework before, but with the

Special Master, I want to talk about framework because I just

have this suspicion that there is going to be a lot of

discovery disputes over the next few months, and I want to make

sure we have a framework, that we're all on board with how it's

going to work with the Special Master.

And then, of course, in the interim, I have these briefs

in front of me which are scheduled for hearing on the 8th, but

I think there may be some things that we can do between now and

then that will narrow and frame things a little better because

what I don't want to happen is I get here on the 8th and then I

say, But now let's do this or what about this, and there may be

things in the interim, so I want to talk about that.

But the first thing I want to ask about is the Acquisition

Agreement, Mr. Gonzalez. Has that been provided now?

MR. GONZALEZ: That is being produced today,

Your Honor.

THE COURT: Today. Okay.

So you will get that today.

MS. BAILY: We have not received it yet, but I trust

we'll get it today.

THE COURT: He said it in front of the Court. You

will get it today. All right.

So then let's talk just generally framework. The way I

kind of see things working in this case, which is what I would

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hope would -- what I'm going to do is rely on Mr. Cooper to

tell me or Ms. Means in particular, Okay, here is a dispute

that is ripe for you to decide, and what that will do is it

will force the parties to go to him first because I think he

can probably help you narrow things quite a bit.

And so then when you're at impasse, then he can tell

Ms. Means -- and as I've said before, we can put things on very

quickly, but he can also then tell me this is how the parties

have decided to brief it, present it.

I'm going to leave that up to you and him. You have

complete freedom on how you want to do it. So you don't have

to do joint letters. If you prefer separate letters, it can be

10 pages, 5 pages, 50 pages, but -- I don't know if I'll read

it all, but if that's what you want to do, you can do it.

But I want it to all go through Mr. Cooper. He is really

the facilitator, the organizer because I think a lot of it --

and I know he has with you in the past -- can be narrowed quite

a bit. Then he will tell Ms. Means and then we'll schedule

hearings and I will know it's coming.

So nothing should ever be sent directly to me without it

going first to Mr. Cooper and then Mr. Cooper alerting me that

it's coming.

Does that work?

MR. CHATTERJEE: Yes, Your Honor.

I have one question about it.

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THE COURT: Yes.

MR. CHATTERJEE: So just recently, it appears that

we're also going to be starting third-party discovery. I don't

know if there is going to be food fights on that front as well.

How do you want to handle those issues?

THE COURT: I would like the same thing, to go through

Mr. Cooper, because part of it is it's just a matter of

organization. I just can't -- if it's coming flying at me all

this way, I can't keep track of it. That's why we have a

Special Master in a case like this.

We all decided -- I think it makes great sense -- we

didn't want three levels of decision-makers. So he's not a

final decision-maker, but he's a facilitator and a

settlement -- or a mediator to the extent -- to help the

parties do that, and there is no reason with the third party he

can't do that as well, especially because he will know you so

well, though he knew you well before -- he will continue to

know you so well, he will be able to work with you and the

third parties, my hope is, to at least reduce the number of

disputes that have to be brought to the Court.

Okay. All right. So does that all make sense?

MS. BAILY: Yes, Your Honor.

THE COURT: Okay. All right.

Now, with respect to the pending motion to compel, which

is related to the Due Diligence Report -- and I did briefly

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read through them. They're not -- I'm not going to decide

anything today. No worries.

But I guess there was one issue, I guess I had, for Waymo

was that Mr. Levandowski had moved to intervene for the

purpose, if I recall, just for filing an opposition.

MS. BAILY: Your Honor, our current thought about that

is that we would oppose that. It doesn't seem that there is

any particular Fifth Amendment issues that are addressed in

that brief.

We're still considering it. And actually just on

scheduling, which is related, currently our reply to the

briefs --

THE COURT: Don't worry about that --

MS. BAILY: But in terms of you mentioned the hearing

date and the hearing was set -- I think it might have actually

been our mistake -- on a normal motion schedule. The briefing

schedule had been set by Judge Alsup to be much faster, and we

would request an earlier hearing date. We don't see any need

to wait after our replies are due tomorrow.

THE COURT: You're prepared to file it tomorrow?

MS. BAILY: We are -- there is one hiccup. We are

prepared to file tomorrow.

When defendants filed their opposition, they submitted the

sworn record that they are apparently going to rely on in the

motion. They have now said that documents referenced but not

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 7 of 33
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submitted in that record are going to be produced today.

Our position is that if they wanted them in the sworn

record, they should have been there, and we're prepared to file

our reply tomorrow.

If they are going to take the position or Your Honor is

going to consider taking a look at those materials in

connection with the motion, which we would argue is improper,

if that were the case, then we would be inclined to ask for a

one-day extension so that we can look at the documents that are

being produced later today.

THE COURT: Well, I was even wondering -- so this is

where I was wondering if the Special Master could help.

For example, a lot of the stuff that you were complaining

about with respect to how detailed the privilege log is, of

course, all is related to the ultimate legal question of

whether it's work product or if the work product has been

waived for disclosure to third parties or if the joint defense

privilege operates to protect that waiver. Is that sort of --

that's sort of how I see it --

MS. BAILY: It is. Our position is that that has

already shook out. Right? So they -- we asked and asked for

more detail in the log. They produced their final log. We

have issues with it, which are briefed now and are going to be

briefed in our reply. We have issues with the sworn record

that they submitted in support of their log. That's all taken

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 8 of 33
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care of in this current briefing schedule.

Our position is that there should be no more delay, there

should be no more back and forth. It's all being briefed

according to Judge Alsup's schedule, and it will be ready for

decision.

THE COURT: You are prepared to just rely on that,

right, because sometimes a party wants more information because

they can have a more robust legal argument.

MS. BAILY: And we would be happy to take discovery.

There is a lot here that we want to take discovery on. Now

there are declarations that have some inconsistencies, like I

said. There are documents referenced that have not been

produced.

We would like to have discovery on all of that, but that

is irrelevant to the motion that is pending because they had a

burden and we are going to argue that they didn't meet it.

They had many opportunities to meet that burden, and we don't

think that we should delay the decision so that they can keep

trying to meet their burden.

THE COURT: Well, certainly not new documents, but

they have submitted documents with their opposition.

MS. BAILY: They have submitted declarations that

reference documents that have not been submitted.

THE COURT: Well, stop me if I'm saying something -- I

don't have -- so, for example, the Engagement Letter was

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 9 of 33
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something that you referred to in your motion as having not

been produced or logged, but I thought it was attached to their

opposition. 

MS. BAILY: That's correct. So a redacted version of

that document has been attached. We were aware of potentially

the existence of that document, which is why we called it out.

In opposition, documents about which we had no awareness

are referenced in declarations. However, they are not

submitted as attachments as part of the sworn record that

defendants submitted for consideration.

Now, they had their chance, and, you know, we don't think

that there needs to be anymore delay for there is documents to

be produced and considered. They weren't submitted. They're

not part of the record. And we should move forward and get a

decision.

THE COURT: All right. So you are satisfied with the

record as it's -- so what they've submitted, they've submitted;

I'll consider; and you're satisfied then with the record. You

don't want, for example, any argument as to what was redacted,

that you should be able to see that?

MS. BAILY: Well, no. There might be arguments about

that, but it's not germane to the issue in this motion.

THE COURT: That's what I mean. In connection with

this motion.

MS. BAILY: So it's not like we waive all rights --

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THE COURT: Of course not. Right. Of course not.

Did you want to say something?

MR. GONZALEZ: Not yet, Your Honor.

THE COURT: Okay.

MR. GONZALEZ: I'm just listening.

THE COURT: Anyone over there?

MR. CHATTERJEE: I'll say one thing. 

It sounds like if they have discovery issues with us, that

should be the issue that is taken to Mr. Cooper and doesn't

need to be resolved today.

THE COURT: No. Nothing. None of that -- that's 

exactly what they're saying, actually, is that they're

satisfied with having me decide the motion based on the record

as it stands, the log as it stands, the documents that you've

produced, that weren't produced earlier, but they'll just

accept them. They're there as they are --

MS. BAILY: I mean -- and, Your Honor, just to be

clear, right, so we're filing our reply tomorrow, a portion of

which will deal with this discovery. You know, our position is

that the record is insufficient --

THE COURT: No. I understand.

MS. BAILY: -- as it is --

THE COURT: Right.

MS. BAILY: That said, if Your Honor has questions or

they come back at a hearing and make some new argument, you

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 11 of 33
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know, then, you know -- it's a little bit of a rock and a hard

place. Right? 

They want us to brief the issue, having provided an

incomplete record. We think that they haven't met their burden

because of that. Right? 

But, you know, if we get materials today that are

referenced in their -- you know, in their opposition that they

didn't deem worthy of citing, you know, in the record, what is

it going to say, I don't know. Right? I don't know.

And maybe we'll raise with Mr. Cooper or raise with

Your Honor, Well, you know, now they're belatedly coming

forward with X, Y, and Z. Well, I don't know what it says.

Right? So it's difficult.

THE COURT: No. I understand.

I understand your argument to be, We believe that on this

record, as it stands today when we submit our reply --

tomorrow, or if you want an extra day, that's fine -- that we

will win. If, though, we come to the hearing, whatever we set

the hearing for, it looks like, Judge Corley, you may be

wavering a bit or have some questions, at that point -- we want

to reserve our right at that point to maybe say, well, maybe we

do need something like that.

MS. BAILY: That's correct.

THE COURT: I hear what you're saying. Okay.

You still don't -- just still standing --

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MR. GONZALEZ: I'm just waiting, Your Honor.

MR. EHRLICH: I'll chime in.

MR. GONZALEZ: Let me add one thing and then you'd be

happy to add the chime.

I don't know what the appropriate procedure is for raising

this issue, but I suspect that when they file their reply

brief, they're going to make a lot of brand new arguments that

were not part of their opening papers. That's what I suspect.

If I'm wrong, so be it. If all they do is respond to our

points, fine.

But if they make brand new arguments, this is a matter

that is likely going to end up, one way or the other, in the

Federal Circuit, and we need to get it right.

So if they do make brand new arguments, given that we've

got a little bit of time, we would ask for leave -- and I don't

know what the appropriate procedure is -- to file a very short

surrebuttal brief that only addresses any new arguments that

they might raise.

Now, if they don't raise anything new, I won't have an

issue, but I suspect that they are going to.

THE COURT: I'm not going to say anything and I'm not

going to give you an advisory opinion. I'm not going to say

anything in advance. You'll do what you do when we get to the

hearing and I'll say what I say and, you know, decide what I

decide.

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MS. BAILY: Your Honor, I would say that anything that

they characterize as new arguments is because they withheld the

information --

THE COURT: That's why -- but I got it. I got it.

But he's right in the sense that I do want to -- I don't

know if I'll get it right. I do want to do my best and make my

best decision because we're -- and then I assume whatever I do

will get appealed to Judge Alsup and whatever he does will get

appealed to the Federal Circuit. So at least I have that

comfort.

MR. GONZALEZ: Your Honor, I guess my question really

was a procedural one, which is, is that an issue that you would

like us to address with the Special Master first?

THE COURT: I don't -- sure. Sure.

MR. GONZALEZ: Or not?

THE COURT: Because it may be helpful. For example,

you could ask Mr. Cooper whether, you know -- you could say to

him, you know, We actually think this is a brand new argument,

and Mr. Cooper could say, You're full it of it, and, no,

Mr. Gonzalez, Judge Corley will never buy that, and then so

maybe you'll just decide, Well, I don't want to waste my good

karma.

MR. GONZALEZ: On the other hand, on the other hand,

if Mr. Cooper agrees with me that these do appear to be new

arguments and if he were to advise that it would be reasonable

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for us to have a short surreply, then they would have an

opportunity to either agree to that, or if not, we come to you.

THE COURT: You come to me, right. But he's not the

decision-maker.

MR. GONZALEZ: Understood.

THE COURT: That is sort of to give you a neutral's

view to help the parties make decisions about what they want to

bring to me. I think it's a good idea to run everything by

him. He has incredibly good judgment.

MR. GONZALEZ: That is the clarity I seek.

THE COURT: Mr. Ehrlich, they did not want you at the

party.

MR. ERHLICH: Thank you.

THE COURT: Actually, they would change their mind and

allow you at the party if your client would speak.

MR. ERHLICH: So I'm told.

That raises -- Ms. Baily raises something that may also

need some clarity as to whether Mr. Cooper will be addressing

the issue of whether we are permitted to intervene for the

purpose of this motion.

I would say the record is quite clear that Mr. Levandowski

was a party to this joint defense --

THE COURT: Can I ask you something, though?

Something they mentioned in their Motion to Compel, I think,

was that when he was asked at deposition to even acknowledge

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the existence of the Due Diligence Report, if I recall, he

wouldn't even answer that question. Now, I could be wrong. I

thought that's what I read.

If that's the case, how does he have any standing to come

in and move to intervene? Because by moving to intervene, he

has to acknowledge that he's a party to the agreement.

MR. ERHLICH: Well, we briefed the issue, and the

evidence is before the Court, that he -- that he signed it. I

mean, he's -- he's signed -- a signatory to the agreement that

was submitted before Judge Alsup several weeks ago.

THE COURT: No. I know it is. It's just an

interesting question because it seems a little playing fast and

loose -- I'm just going to say, playing fast and loose with the

courts to, on the one hand when you're asked the question at

deposition in a civil case, he is not required to plead the

Fifth to everything. In fact, when courts have to decide

whether there is an adverse inference or not, they are supposed

to really do it on a question-by-question basis.

When asked that question, he refused to even acknowledged

the agreement's existence. But now he's moving to intervene in

something that's directly contradictory to his testimony.

MR. ERHLICH: Two answers there, Your Honor. It's a

fair question.

One is the -- I have -- I don't know if, in fact, that's

the question and answer that took place.

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 16 of 33
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THE COURT: Sure enough.

MR. ERHLICH: It may be. We were clearly asserting

very, very broadly. That's well-known.

Our concern in these instances where we have a client who

is in that situation where they need to invoke their

constitutional rights is to be very concerned that civil

litigants will try to shoehorn any answer as a waiver of

subject matter and pry open and then claim he's waived.

THE COURT: Why isn't bringing the motion then that

same waiver? I mean, you shouldn't be able to have it both

ways. If it's not a waiver, it's not a waiver, but you

shouldn't be able to avoid a waiver argument by just making

attorney argument.

MR. ERHLICH: No. That's -- that's true. Your Honor

may know that we've filed a motion seeking permission to file

an in camera submission from Mr. Levandowski --

THE COURT: Yes. I --

MR. ERHLICH: -- to address -- I mean, if it's clear

that there is no waiver, clearly it's our position he's a party

to this agreement. We submitted it. We have evidence before

the Court.

The Fifth Amendment is a little different question. When

you take the Fifth Amendment, there can be the possibility of

an adverse inference, but as was heavily litigated, that's only

when there is corroborating evidence for the inference you're

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 17 of 33
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trying to draw.

And clearly he's a party to the agreement. We're not

contending otherwise. The record, I think, more than

establishes that he has rights that are at stake that the Court

is going to adjudicate if the Court is to going to evaluate the

vitality of this joint defense common interest privilege.

If the Court would prefer a submission just on that point

where he's acknowledging that he's a party to it, I don't know

that that would be --

THE COURT: I don't know if I prefer one. It struck

me when I was reading it and I read through that that there was

an inconsistency there. I don't know what it means. I'm not

going to adjudicate it today.

So there are two things, and I understood the main thing

about the Motion to Intervene was wanting to have standing and

ability to appeal, as we all acknowledged. This is the

beginning. To appeal. And so that's there. That's one.

The second issue is the submission of something ex parte

that Waymo wouldn't see; right?

MR. ERHLICH: Correct. In camera.

THE COURT: Would -- Uber or Otto presumably would see

it?

MR. ERHLICH: No.

THE COURT: Would not either? 

MR. ERHLICH: No.

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 18 of 33
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THE COURT: Just the Court?

MR. ERHLICH: Only the Court.

THE COURT: What I will tell you is I'm not going to

look at it until I adjudicate whether it would even be proper.

So I'm not even going to look at it because that to me seems

very dicey on this particular motion.

I understand on a motion with respect to the Fifth

Amendment privilege that's different. But here we're just

talking about the Due Diligence Report and its exhibits.

That's what we're talking about.

MS. BAILY: We will be filing an opposition to the

motion so you will have the benefit of that, Your Honor.

THE COURT: Well, I guess that all depends on timing.

MS. BAILY: We were going to file that opposition

either with our reply or a day after, you know, so very

quickly. We would like to get all of these issues resolved

very quickly because a ruling on these issues will affect other

discovery, and under the current proposed schedule, discovery

is only going to be about two and a half months, so we don't

want to dilly-dally with these things.

We are going to respond to the Motion for Leave either

tomorrow with our reply or on Monday we were planning to.

THE COURT: And you do know that the report itself was

provided to the Court for in camera review?

MS. BAILY: We're aware of that, yes.

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THE COURT: All right.

MR. ERHLICH: Your Honor, can I just make a comment

about that?

THE COURT: Yes.

MR. EHRLICH: Because I think we had a more fulsome

discussion before Judge Alsup earlier in the case.

The due diligence process, as we -- Mr. Ramsey and I

argued earlier -- there is a question of privilege that is

overarching and whether this is a valid privilege --

THE COURT: You mean the joint defense?

MR. ERHLICH: The joint defense common interest

privilege.

There is also underlying that a core Fifth

Amendment/Hubbell, active production concern, and that is

something that we think is appropriately, for the reasons

stated in our papers, addressed in camera.

THE COURT: Well, you can brief it. No one is making

Mr. Levandowski produce anything. The Motion to Compel isn't

directed to him; right? So the first legal issue --

MR. ERHLICH: There is a subpoena directed to

Mr. Levandowski.

THE COURT: But this report, this Due Diligence

Report --

MR. ERHLICH: Correct.

THE COURT: -- was in the hands -- is it not -- is in

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the hands of Uber and Otto and maybe the author; right?

MR. ERHLICH: That's correct.

THE COURT: So nothing is coming from your client. So

the first legal question I guess I would need to have

answered -- and I haven't read your brief so perhaps it's in

there -- is how the Fifth Amendment is even implicated given

that nothing is coming from him, no one is asking him to do

anything. He can be as far away from it as he wants. No one

is asking him to do it.

Has that been addressed?

MS. BAILY: Your Honor, Judge Alsup has already

addressed just that issue. I believe it's Docket 205.

THE COURT: Is that with respect to the privilege log?

MS. BAILY: Right. But where he essentially found

that there is no Fifth Amendment right to avoid testimony by

production when there is no -- this issue has nothing to do

with discovery from Mr. Levandowski.

We have those issues, but that's not one of these issues

on the Due Diligence Report.

MR. ERHLICH: I don't think that's quite accurate, if

the Court reads Judge Alsup's order.

It was a dispute about whether the third party due

diligence vendor could be named on a privilege log. But Judge

Alsup, in the order, went through a number of very

uncontroversial premises about the Fifth Amendment and how it

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would apply.

And the language that's most relevant here is he

acknowledged that under Fisher vs. United States, which is the

predecessor to Hubbell, to the extent there is a valid

attorney-client privilege -- and at that point, there wasn't as

fulsome record as there is now -- to the extent there is a

valid attorney-client privilege, a client sharing any tangible

items, anything for review by an attorney, compelling counsel

to produce is the same as compelling an individual.

So it does raise the Hubbell concern if the Court were to

conclude that this is a valid joint defense common interest

privilege.

MS. BAILY: Judge Alsup also found that there was

no -- that production by counsel was not implicated. We're

talking about production by Uber.

THE COURT: All right. So my question is -- because

I'm not resolving that today. This is just a preview.

Is that already -- that's briefed then? Because I

haven't -- as I said, I haven't read your brief yet.

MR. ERHLICH: The Fifth Amendment issue is not

squarely briefed in connection with this Motion to Compel. It

has been briefed before in the case, and we could --

THE COURT: You could just refer me to those briefs.

MR. ERHLICH: Yes. We could do that.

MS. BAILY: Your Honor, I just want to flag that this

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kind of serial, you know, raising of issues -- you know,

Mr. Levandowski filed all manner of paper with respect to this

motion, so the notion that this wasn't raised, if they intended

to raise it --

THE COURT: Well, I raised it.

MS. BAILY: Right. Exactly.

But if there was going to be an issue with respect to the

Fifth Amendment with respect to Uber's production of a due

diligence document, it should have been raised when they filed

all their other papers on this motion because there is this

tendency to do things serially with respect to

Mr. Levandowski's Fifth Amendment rights, and we don't have

time for it under the schedule.

MR. PERLSON: Sorry, Your Honor. If I could intervene

one thing?

THE COURT: Do you oppose his intervention? I'm just

kidding.

MR. ERHLICH: No.

MR. PERLSON: In reference to Mr. Levandowski, you

know, this first thing that Ms. Baily refers to started with

the secret hearing that they called where they were asking for

the Court's advice on Fifth Amendment, and then the Court even

commented that what happened is, as it went on -- is as they

were losing one argument, they would raise another argument.

They would lose one argument, they would raise another

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 23 of 33
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argument.

They're doing the same thing here, and I will note,

Your Honor -- and this is probably something that we'll be

raising very soon -- that Mr. Levandowski himself has violated

the Court's orders in relation to the subpoena as to him

grossly. And he is personally obstructing our ability to take

discovery in this case. He was ordered to produce documents on

the day of his deposition. That was about a month ago --

THE COURT: Okay. You know who you're going to talk

to about that first? Mr. Cooper.

MR. PERLSON: Understood.

But, Your Honor, what's happening here is that there seems

to be some interest in Mr. Levandowski and hiding things that

he's been involved in, and the arguments around that are

changing, and yet at the same time, he's not producing

documents in this case and he's not agreeing to say anything in

this case. And it's grossly unfair.

THE COURT: All right. I'm not -- as I said, I will

decide whether he can intervene, whether he had standing,

whether he has all that, before I read -- before I read what he

says. I just think it's a matter of fairness because the truth

is you can't undue it once it's there. And I do have

concerns --

MR. ERHLICH: Can't undue the in camera.

THE COURT: Right. Exactly. But I'll read everything

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you write.

MR. ERHLICH: I will say our papers do address the

Fifth Amendment issue as being the basis for which we're making

the request.

THE COURT: All right.

MR. ERHLICH: So it's squarely there.

THE COURT: You filed your motion. You'll file your

opposition. You will file your reply.

MR. ERHLICH: Can I say, for the record, I don't agree

with the characterization about Mr. Levandowski's conduct in

discovery, but we'll talk to Mr. Cooper.

THE COURT: You can. Of course you can say that.

MR. ERHLICH: Thank you.

THE COURT: Right. That's an example of an issue that

should be brought to Mr. Cooper first, and then before it's

then -- then he can let Ms. Means know when it's teed up for

me.

Let's see. Today is the 11th. I don't think I could

really -- your opposition and then your reply --

MS. BAILY: So we have the reply on the original

motion. That's currently set for tomorrow. And then --

THE COURT: Would you like until Monday?

MS. BAILY: I mean, I do not want to hold -- do

anything to hold up the schedule. So it just depends on when

your first availability is for a hearing.

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The only reason that we even thought about asking for

Monday is because we had been told today that there are

documents coming today, and so, you know, if there's going to

be something made of these documents, we would like a chance to

review them before filing our reply.

THE COURT: Well, and we should specially set this

hearing, I think.

June 1st.

MS. BAILY: If that is your earliest availability.

THE COURT: We are going to need some time. It's a

big issue, and I have settlements.

MR. GONZALEZ: So, Your Honor, I --

THE COURT: You can't do the 1st?

MR. GONZALEZ: I'm in trial that week. I was

concerned as it is with the 8th. I hadn't raised the 8th

because I wanted to see how the trial goes. You know how

sometimes you settle at the end. I don't think I'm going to.

I think we are going to be in trial that week.

It's only a week earlier. It's not really going to make

that big a difference in the large scheme of things.

THE COURT: How about the 24th? And I will be as

ready as I am.

MS. BAILY: Sorry. The 24th will be the hearing?

MR. GONZALEZ: I could do the 24th. My only

reservation -- I could do the 24th, if we need to. My only

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 26 of 33
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reservation is there is a lot there for the Court to absorb,

and I know how much you have on your calendar. If you think

you can do it on the 24th --

THE COURT: I can do a hearing. It does not mean I'm

going to issue the decision the next day.

MR. GONZALEZ: Understood.

THE COURT: And it may be that I decide, depending how

the hearing goes, there is something else I can frame -- I

actually think it makes sense to maybe have it. My initial

take on what I've seen and read and thought, we can narrow it

in some sense, maybe I will want additional argument on

something, and get that process going.

MR. GONZALEZ: Twenty-fourth will be fine.

MS. BAILY: In light of that hearing date, is

Your Honor willing to have our reply on Monday?

THE COURT: Yes. Absolutely. Trust me, I won't be

reading it this weekend.

MS. BAILY: I don't know why not.

MR. GONZALEZ: What time on the 24th, Your Honor?

THE COURT: How about 10:00? 9:00?

MR. ERHLICH: Your Honor, I know I have not even been

allowed into the party here, but I have a very difficult

conflict on the 24th, and -- at least through 1:00.

THE COURT: Could you be here by 2:00?

MR. ERHLICH: I think so, yes.

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 27 of 33
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THE COURT: 2:00 on the 24th.

MR. GONZALEZ: That would be fine, Your Honor. Thank

you.

MS. BAILY: Just to be clear, Judge Alsup usually

expects briefs at noon, but if we could have until the end of

the day on Monday?

THE COURT: Yes. He referred all discovery to me. So

what that means is you should work with Mr. Cooper, and those

rules don't apply. You should feel free to ask anything.

MS. BAILY: Thank you, Your Honor.

THE COURT: We are sticking to his deadlines, though,

of course, and so I understand that there is urgency with

respect to discovery.

MR. GONZALEZ: I have one issue, but I didn't want to

interrupt you. Were you finished?

So, Your Honor, I appreciate you're going to tell us to go

see Mr. Cooper, and I would be happy to talk to Mr. Cooper

about all of this stuff, but I'm wondering what your procedures

are for imposing some type of limitation on discovery.

I ask that question because you may or may not know that

we've already responded to 72 document requests already in this

case. And in the last two days, they served us with 152 more.

And these are not simple document requests. I can show them to

you at the appropriate time. They are very extensive. In

fact, I read just the first 40 because I was curious about "all

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 28 of 33
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documents and communications." Of the first 40 requests, 20 of

them have that language.

THE COURT: So let me tell you what my theory is about

document requests and the way it should work, and actually I

did a State Bar Webcast yesterday on this.

You serve your document request, and you should never

respond without sitting and talking to the other side; right?

Because always when you're propounding discovery, you're going

to be as broad as possible because the last thing you want is

the argument, which maybe I've seen made here, Oh, no, it

wasn't covered by the document request, so they're always

broad.

But then what you do is you sit down and you say, What is

it you're looking for and why? Okay. This is how we get there

and this is what we do. So that's what I really want you to

do. I think you should do that.

So you got that request; Ms. Baily is here. You can have

that conversation now. You can have it tomorrow. You should

have it pronto. And I think you should try to have it among

yourselves. To the extent you still can't narrow it enough,

then that's when you involve Mr. Cooper there.

But really, you know, document requests -- I personally

believe they cannot be responded to without people having

words, actual face-to-face conversation. And when I have a

document dispute in front of me, my first word out of my mouth

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is Why? why do you need this? I don't care what the language

of the request was or anything. I just want to know why.

Okay. Okay. Why. That sounds good. How do we get it to

them? That's it. So just sort of in plain English language.

It's a conversation you have among yourselves and then

with Mr. Cooper and then you can bring it to me when it's

narrowed. So at that point, I don't actually care what the

language of the request is. What I care is what are the

documents you're looking for and why are you saying you can't

produce them, if you are going to say that.

MR. GONZALEZ: That's very helpful, Your Honor. Thank

you.

MR. PERLSON: Your Honor, that's great.

One of the things that I had proposed to Mr. Gonzalez

today, which I think perhaps prompted his statement today, is

that it seemed to us that given our abbreviated schedule, that,

you know, it doesn't make sense to wait 30 days to get

objections and responses and that we thought that just even

getting the objections after 14 days and then maybe shortening

the period for both of us to respond -- same true with

interrogatories and document requests -- might be a good idea,

given the short time frame, but we can address that further

with Mr. Cooper.

THE COURT: Yes. But really it's sort of -- yeah. I

mean, basically you want to know what are you agreeing to

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 30 of 33
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produce, what are you not agreeing to produce and why. And

then if there is a dispute about what they're not agreeing to

produce, then through Mr. Cooper, that can be brought to me and

I can adjudicate that.

MR. PERLSON: I think one of the things we've seen

over time -- and there have been attempts to narrow the issues

and things like that -- but doing that stuff earlier rather

than later is going to be critical so there is not, like, a

crunch of a bunch of issues that we are all trying to jam in.

THE COURT: This is like totally off topic or even

sort of not even my realm, but Mr. Cooper is here and we have

some experience with that.

Whenever you have these type -- and you've probably all

discussed this because you are so experienced, but I just can't

help it. I'm just going to throw it out there.

Whenever you have trade secret cases like this, often one

way to try to get to the nub of the matter is to hire some

neutral, neutral, neutral person to go in and do the forensic

examination of the servers and the like.

Anyway, I just throw that out there as something I've seen

before. 

The parties certainly have plenty of money to pay for the

best forensic examiner you could ever come up with.

I just throw that out there as something I've seen work

actually in some cases, as long as it's someone the parties

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 31 of 33
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mutually agree to and trust, and then the competitive concerns

are alleviated with that.

Anyway, couldn't help myself. Sorry.

MR. GONZALEZ: I appreciate that, Your Honor.

MR. PERLSON: I think there has been some discussion

of that. There certainly hasn't been anything worked out

specifically.

THE COURT: Yes. But with a trade secret case, it's

often just a way of getting to that sort of answer in a way

that both sides can sort of trust and feel comfortable with, if

you can get there.

Okay. So we will see you on May 24th at 2:00 p.m.

I will see you, Mr. Ehrlich, one way or the other.

MR. ERHLICH: Yes. Thank you.

THE COURT: Okay. Thank you. And thank you,

Mr. Cooper.

MR. COOPER: Thank you.

 (Proceedings adjourned at 2:47 p.m.)

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 32 of 33
 

 CERTIFICATE OF REPORTER

 I certify that the foregoing is a correct transcript 

from the record of proceedings in the above-entitled matter. 

DATE: Thursday, May 11, 2017 

_________________________________________ 

Pamela A. Batalo, CSR No. 3593, RMR, FCRR 

U.S. Court Reporter 

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Case 3:17-cv-00939-WHA Document 424 Filed 05/11/17 Page 33 of 33