June 5, 2017 

The Honorable Jacqueline Scott Corley 

United States Magistrate Judge 

United States District Court for the Northern District of California 

San Francisco Courthouse 

450 Golden Gate Avenue 

San Francisco, CA 94102 

 Re: Waymo LLC v. Uber Technologies, LLC et al., Case No. 3:17-cv-00939-WHA 

Dear Judge Corley: 

 Below please find Defendants Uber Technologies Inc.’s and Ottomotto LLC’s 

(collectively, “Uber”) letter brief in opposition to Waymo’s motion to compel redacted portions 

of the March 21, 2016 letter agreement between Stroz Friedberg, LLC (“Stroz”) and John 

Gardner, counsel for Anthony Levandowski (the “Letter Agreement”). Per Uber’s agreement 

with Waymo, and as Special Master Cooper informed the Court, this letter brief is due to be filed 

at 4 p.m. PT. Shortly before this deadline, the Court issued an order on Waymo’s Motion to 

Compel Production of Withheld Documents (Dkt. 321). Uber is in the process of evaluating that 

order, which may impact the arguments made herein. 

Sincerely, 

 /s/ Karen L. Dunn 

 Karen L. Dunn 

Counsel for Uber Technologies, Inc. and 

Ottomotto LLC 

cc: counsel of record; Special Master John Cooper 

 

Case 3:17-cv-00939-WHA Document 552 Filed 06/05/17 Page 1 of 3
1 

Defendants Uber Technologies Inc. and Ottomotto LLC’s Opposition to Waymo’s Motion to Compel 

Production of Letter Agreement 

Case No. C 17-00939 WHA 

Waymo’s motion to compel production of the Letter Agreement (Dkt. 545-3) (“Mot.”) should be 

denied. 

First, Waymo is wasting the Court’s limited time and resources with a motion that Waymo 

acknowledges (Mot. 1) is entirely duplicative of its Motion to Compel Production of Withheld 

Documents (Dkt. 321), which is already pending before this Court. Waymo’s request should be 

denied for this reason alone. 

Second, Uber is not using the assertion of privileges associated with this document as both a 

sword and a shield. (Mot. 1.) To invoke the principle against using the privilege as a sword and 

a shield, it is not sufficient to seek to protect the privilege; a party must also use it as a sword, 

which has not happened here. To the contrary, on June 1, 2017, Uber produced only the nonprivileged content of the Letter Agreement after agreeing to do so during a Special-Master 

supervised meet-and-confer relating to Waymo’s subpoena to Stroz.1

 Uber explained multiple 

times why only the redacted portions of the Letter Agreement are privileged under the attorneyclient privilege, work product doctrine, and common interest doctrine. (Dkt. 545-5 (6/2 Hume 

email; 6/1 Ray email)). A party does not use “attorney-client communications...both as a sword 

and a shield” where produced documents “did not involve attorney-client privileged 

communications” in first place. Marilley v. Bonham, 2013 WL 896755, at *3 (N.D. Cal. Mar. 8, 

2013); see also Avocent Redmond Corp. v. Rose Elecs., Inc., 516 F. Supp. 2d 1199, 1202 (W.D. 

Wash. 2007) (where redacted attorney invoices did not reveal any privileged content, movant 

“need not be concerned” that producing party “will effectively use the invoices as both a sword 

and a shield”). Indeed, that is why parties routinely produce non-privileged portions of 

documents while redacting privileged portions. Weiss v. Nat’l Westminister Bank, PLC, 2008 

WL 5115027, at *2 n.2 (E.D.N.Y. Dec. 3, 2008) (“[T]he production of partially redacted 

documents does not . . . constitute a waiver of any applicable privilege.”); Fed. Deposit Ins. 

Corp. v. Lowis & Gellen LLP, 2014 WL 656660, at *6 (N.D. Ill. Feb. 20, 2014) (“L & G has not 

identified any privileged information disclosed in Katten’s invoices which FDIC is using to gain 

a tactical advantage. . . In fact, L & G complains about the fact that privileged information has 

been redacted from the invoices. . . . Katten is entitled to produce redacted invoices to support a 

claim for attorneys’ fees while also preserving attorney-client privilege and work-product 

protection” over those invoices); The Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 

345, 365, 368 (E.D.N.Y. 2009) (because privilege holder properly redacted opinion work product 

while producing non-privileged portions of the same document, there has been “no waiver of the 

privilege”); Love v. Permanente Med. Grp., 2014 WL 644948, at *3 (N.D. Cal. Feb. 19, 2014). 

Third, Uber has not violated in any way Judge Alsup’s order (Dkt. 438) requiring Defendants to 

make a submission about any intended waivers of privilege. (Mot. 2.) That order is irrelevant to 

this motion because, in producing the non-privileged portions of the letter, Uber has waived no 

privileges. Uber’s position with regard to the Letter Agreement is consistent with its position in 

the June 1, 2017 submission. (See Dkt. 531.) 

Finally, the redacted portions of the Letter Agreement remain protected by the attorney-client, 

work-product, and common-interest doctrine privileges, as explained below and in Uber’s 

																																																								

1

 Waymo’s misleading summary of the conferrals set forth in the third paragraph of its letter with respect to the 

Stroz subpoena is irrelevant for purposes of this motion. The parties agreed to a briefing schedule with respect to 

that subpoena, and the Court should not countenance arguments about that subpoena here. 

Case 3:17-cv-00939-WHA Document 552 Filed 06/05/17 Page 2 of 3
2 

Defendants Uber Technologies Inc. and Ottomotto LLC’s Opposition to Waymo’s Motion to Compel 

Production of Letter Agreement 

Case No. C 17-00939 WHA 

opposition (Dkt. 369) and accompanying evidentiary record and sur-reply (Dkt. 474), all of 

which are incorporated herein by reference. 

Attorney-Client Privilege: The limited redactions to the Letter Agreement describe the 

information being requested by Stroz on behalf of counsel for Uber and Ottomotto in order to 

render legal advice. It therefore reflects confidential attorney-client communications regarding 

the purpose of Stroz’s engagement, as well as the directions those attorneys gave to Stroz. 

Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (“correspondence ... 

which also reveal[s] the motive of the client in seeking representation, litigation strategy, or the 

specific nature of the services provided...fall within the privilege”). 

Work Product Doctrine: Those same redactions also reflect attorney work product in directing 

Stroz with respect to the conduct of the investigation. In addition, the redacted “Protocol for 

Review of Data and Devices” is opinion work product because it “relate[s] to methods for 

document review and retention [and] discussions regarding how to locate and interpret metadata.” 

S.E.C. v. Schroeder, 2009 WL 1125579, at *12 (N.D. Cal. Apr. 27, 2009). The investigation’s 

scope, including the review protocol, were decided upon and agreed to by all parties and 

attorneys involved in and directing the Stroz investigation, which included counsel for Uber, 

Ottomotto, Levandowski, and Lior Ron. (Dkt. 369 at 9-13.) 

Common Interest Doctrine: Uber, Otto, Levandowski, and Ron shared a common legal interest 

in defending potential litigation brought by Google arising out of Uber’s acquisition of Otto, and 

MoFo’s and OMM’s retention of Stroz furthered that purpose. (Dkt. 369 at 13-17; Dkt. 474 at 1-

3.) The Letter Agreement falls within the scope of this common legal interest,2 and Waymo’s 

arguments to the contrary fail:3

 

 Waymo argues that there is no common legal interest because Gardner did not retain Stroz 

with OMM and MoFo. But the record shows that Gardner (along with MoFo and OMM) 

directed the scope of the investigation and relied on it in providing his client legal advice. 

(Dkt. 381 ¶¶ 6-7, 11.) And Ottomotto’s retention of Stroz would suffice alone, because, as 

Waymo acknowledges (Mot. 2), the Letter Agreement explicitly states that Levandowski 

shares a common legal interest with Ottomotto. (Ex. 3 to Schmidt Decl.) 

 Waymo’s argument about the date Levandowski joined the common interest agreement fails 

on the facts: Gardner viewed his communications with MoFo, OMM, Uber, and Ottomotto 

as privileged from the outset of his engagement, and his March 22, 2016 email “confirmed” 

that understanding. Garder Decl. ¶¶ 4, 9; Stroz Engagement Letter (Dkt. 370-3) 

(Levandowski, Uber, Ottomotto, and Ron were parties to a common interest agreement). 

For the foregoing reasons, Waymo’s motion to compel production of redacted portions of the 

Letter Agreement should be denied. 

																																																								

2

 Even if the common interest doctrine did not apply, Waymo would not be entitled to disclosure of any redacted 

content, as it is all work product. See Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 580 (N.D. Cal. 2007) 

(work product protection is only “waived where disclosure of the otherwise privileged documents is made to a third 

party, and that disclosure enables an adversary to gain access to the information”). 3

 Waymo argues that Uber’s privilege log is deficient with respect to this document, but in so doing, Waymo omits 

that the log adequately describes this document as “correspondence between Stroz Friedberg LLC and attorney for 

A. Levandowski regarding investigation protocol for the Due Diligence Investigation.” (Dkt. 370-4 at 3.) This 

argument should be rejected for the reasons stated in Uber’s opposition. (Dkt. 369 at 20-22.) 

Case 3:17-cv-00939-WHA Document 552 Filed 06/05/17 Page 3 of 3