1 

August 11, 2017 

VIA ECF 

The Honorable Jacqueline Scott Corley 

United States Magistrate Judge 

United States District Court for the Northern District of California 

Phillip Burton United States Courthouse 

450 Golden Gate Avenue 

Courtroom F - 15th Floor 

San Francisco, CA 94102 

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

Dear Magistrate Judge Corley: 

Otto Trucking LLC submits this letter brief to compel discovery from Waymo regarding its forensic 

investigation of Messrs. Levandowski, Raduta, and Kshirsagar. Waymo has intentionally disclosed 

privileged information related to its investigation that are beneficial to its claim, but has improperly 

withheld other aspects of its investigation on the grounds of attorney-client privilege and the workproduct doctrine. The entirety of Waymo’s misappropriation claim rests on the evidence in this 

investigation. Waymo must either waive privilege entirely as to its forensic investigation or be barred 

from submitting any such evidence of misappropriation at trial. 

Respectfully submitted, 

 /s/ Neel Chatterjee 

Neel Chatterjee 

GOODWIN PROCTER LLP 

Attorneys for Defendant 

Otto Trucking LLC 

cc: Counsel of Record (via ECF); Special Master Cooper 

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 

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Ex. 2 at 229:19-230:5. 

Otto Trucking requests that the Court order Waymo to produce all documents and communications 

concerning its investigation of Messrs. Levandowski, Raduta and Khirshigar if it intends to introduce any 

evidence regarding the investigation at trial. Only with this complete disclosure would Otto Trucking be 

able to fully test the investigation on which Waymo’s case rests. If Waymo refuses, the Court should 

order that Waymo live by its use of privilege as a shield, and preclude it from introducing any evidence of 

Waymo’s investigation at trial. See Bittaker v. Woodford, 331 F.3d 715, 719 (9thCir. 2003) (“The Court 

imposing the waiver does not order the disclosure of the materials categorically; rather, the Court directs 

the party holding the privilege to produce the privileged materials if it wishes to go forward with its 

claims implicating them”); U.S. v. Amlani, 169 F.3d 1189, 1196 (9th Cir. 1999). 

Waymo’s misappropriation claim hinges on the conclusions of Gary Brown, a Google employee who 

submitted a declaration attesting that based on his review of one laptop and various metadata, Mr. 

Levandowski downloaded 14,000 files from a server on December 11, 2015, and took those files when he 

plugged a card reader into his computer three days later.1

 

There is no dispute that attorneys directed the investigation into Mr. Levandowski’s laptop. There is also 

no dispute that Waymo has expressly and implicitly waived privilege and revealed privileged aspects of 

the investigation. Ex. 10

 Nevertheless, Waymo seeks to hide behind the privilege and preclude 

discovery of anything relating to

but still expects to present 

its conclusions in its favor against defendants. 

The law forbids Waymo’s use of privilege as a shield while simultaneously selectively waiving privilege 

to use it as a sword. 

I. WAYMO SELECTIVELY WAIVED PRIVILEGE 

A. Waymo Provides Evidence about Privileged Aspects of the Investigation 

Waymo’s investigation into Anthony Levandowski began in February 2016, almost immediately after he 

left Google.

 

1

 Mr. Brown has also been identified as an expert for trial. Ex. 14. 

Case 3:17-cv-00939-WHA Document 1163 Filed 08/11/17 Page 2 of 6
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Following the imaging, in March 2016, Mr. Brown performed a forensic review of log data associated 

with Mr. Levandowski. 

 

What followed was a results-oriented exercise where Mr. Brown sought information to corroborate 

 conclusion to the exclusion of other evidence. 

This evidence and related evidence were constantly updated through a document called a “ 

 Waymo also clawed back one of several pages of 

a “ on the grounds of attorney client privilege, selectively 

disclosing only portions of that investigation. 

B. Waymo Prevents Discovery On the Investigation by Selectively Asserting Privilege 

Despite Waymo’s waiver, Waymo prevented Otto Trucking and Defendants from examining witnesses on 

many of the communications, assumptions, and directions relating to the investigation. Mr. Brown was 

deposed during the preliminary injunction phase and was instructed not to answer 7 questions about his 

forensic investigation. Waymo instructed Mr. Gudjonsson not to answer 15 questions about the 

investigation, and Ms. Bailey not to answer 8 questions. Waymo improperly instructed Mr. Brown, as the 

Rule 30(b)(6) deponent on Waymo’s investigation, not to answer 26 questions, which questions he also 

declined to answer in his personal capacity. Ex. 3 at 9:4-12. 2 The topics that defendants were 

 

22 Ex. 1 at 28:23-29:13; 29:11-13; 29:19-24; 38:9-17; 38:19-23; 38:25-39:7; 39:21-24; Ex. 4 at 29:21-30:1; 44:13-25; 46:3-10; 

47:18-24; 60:11-18; 61:3-14; 84:12-15; 134:14-20; 135:15-136:2; 136:3-8; 194:4-13; 200:13-24; 203:25-204:20; 206:5-20; 

211:25-212:7; Ex. 5 at 287:17-20 (instruction); 284:11-17; 290:2-18; 291:22-292:8; 292:9-20; 306:25-307:5; 308:7-18; 308:23-

309:3; 309:4-9 (questions); Ex. 2 at 13:17-22; 13:25-14:5; 14:17-22; 31:15-17; 31:22-25; 42:25-43:6; 44:24-45:5; 46:1-7; 

46:12-18; 47:13-19; 52:12-18; 53:2-8; 62:19-25; 63:11-17; 63:22-64:1; 69:5-11; 113:19-25; 114:11-16; 121:14-20; 122:18-24; 

127:13-19; 150:14-20; 176:14-20; 213:11-14; 234:12-14; 235:7-13; 238:3-8; 301:25-302:5. 

Case 3:17-cv-00939-WHA Document 1163 Filed 08/11/17 Page 3 of 6
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prohibited from examining included: 

.

3

Waymo has similarly refused to produce documents relating to the above topics and communications 

regarding the investigation. In addition, though it claims to be work product, Waymo has clawed-back 

portions of documents relating to the investigation based on the work product doctrine and continues to 

assert work product and privilege over documents on its privilege log relating to the investigation. 

II. WAYMO WAIVED PRIVILEGE BY IDENTIFYING MR. BROWN AS AN EXPERT

Waymo designated Mr. Brown and Mr. Gudjonsson to provide expert testimony about the investigation. 

Ex. 14. This alone is sufficient to cause a waiver of privilege. See e.g., QST Energy, Inc. v. Mervyn’s, 

No. C-00-1699MJJEDL, 2001 WL 777489, at *3 (N.D. Cal. May 14, 2001) (“Where the expert’s 

prospective testimony ‘will necessarily disclose a ‘significant part’ of the privileged communication to the 

expert, the privilege is waived with respect to all communications to that expert.’”); F.D.I.C. v. Anderson, 

2013 WL 146427, at *1–2 (E.D. Cal. Jan. 14, 2013) (holding that party waived privilege over 

communications with hybrid fact and expert witnesses). Waymo must disclose all of its documents and 

communications regarding the investigation or be barred from calling either witness at trial. 

III. WAYMO MUST WAIVE PRIVILEGE OR DROP ITS CLAIM

If at trial Waymo wishes to rely on evidence relating to its forensic investigation, Waymo must produce 

all documents and communications relating to the forensic investigation, including the above topics and 

their concerted investigation of many employees who left Google for Uber. Bittaker, 331 F.3d at 720; see 

also Theranos, Inc. v. Fuisz Techs., Ltd., No. C 11-5236 PSG, 2013 WL 2153276, at *4 (N.D. Cal. May 

16, 2013) (enforcing a “broad waiver” “to prevent the disclosing party from ‘cherry-picking the selective 

communications that [were] favorable to” it); Walker v. Cty. of Contra Costa, 227 F.R.D. 529, 533 (N.D. 

Cal. 2005) (party loses “work product and attorney-client privileges” when relying on an investigation to 

prove a claim or defense) (collecting cases). In addition, Waymo must also make Gary Brown, Kristinn 

Gudjonsson, and Chelsea Bailey available for deposition during which Waymo may not assert any 

privilege objections with respect to the investigation. Anything short of this complete disclosure while 

permitting Waymo to submit evidence of the investigation would be contrary to Ninth Circuit law and 

prejudicial to Otto Trucking. Bittaker, 331 F.3d at 720. 

Waymo has expressly and implicitly waived all privilege and work product protection related to its 

investigation. Waymo’s intentional disclosure of work product regarding the investigation and 

inconsistent application of the attorney-client privilege—allowing privileged discussions about 

“technical” parts of the investigation to be disclosed—waived privilege as to the entire investigation. See, 

e.g., Wadler v. Bio-Rad Labs, Inc., 212 F. Supp. 3d 829, 853–54 (N.D. Cal. 2016) (finding express waiver

as to all matters intentionally waived and implied waiver as to communications relevant to those same 

disclosures). In addition, as the Ninth Circuit has held, “Parties in litigation may not abuse the privilege 

by asserting claims the opposing party cannot adequately dispute unless it has access to the privileged 

3

 Ex. 4 (Gudjonnson Tr.) at 84:8-18, 200:6-24; Ex. 5 Bailey Tr., 291:22:292:8, 292:9-20; Ex. 2 at 52:5-18, 72:18-73:5, 45:8-18, 

120:4-121:25; 126:25-128:1; 123:11-125:3; 113:5-113:25; Ex. 13. 

Case 3:17-cv-00939-WHA Document 1163 Filed 08/11/17 Page 4 of 6
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materials. The party asserting the claim is said to have implicitly waived the privilege” Bittaker v. 

Woodford, 331 F.3d at 719 (9th Cir. 2003) (“Substantial authority holds the attorney-client privilege to be 

impliedly waived where the client asserts a claim or defense that places at issue the nature of the 

privileged material.”). 

Here, Waymo has presented to the court its conclusions that Anthony Levandowski improperly 

downloaded 14,000 files from Google’s servers, has offered quasi-expert testimony to the Court from a 

party’s internal security engineer that was guided by outside counsel. At the same time, Waymo seeks to 

shield from discovery important aspects of the investigation that would allow Otto Trucking to fully 

investigate and test those conclusions. It artificially has drawn lines that cannot exist—that Waymo can 

selectively disclose work performed in an investigation guided by attorney client communications but not 

others within the precisely same subject matter domain. Often, these communications are within the same 

document. Without the complete record, Otto Trucking is prejudiced because it cannot fully explore the 

conclusions of Waymo’s forensic experts. 

When a party has turned over documents to another party voluntarily (and in this case has expressly stated 

it is waiving privilege), the privilege is gone and the litigant may not thereafter reassert it to block 

discovery of the information and related communications by his adversaries. Bittaker, 331 F.3d at 720; 

Wadler, 212 F. Supp. 3d at 850; see also Fed. R. Evid. 502(a). Where implied waiver of privilege has 

occurred, the withholding party must make a choice: waive privilege on that subject matter or stand by its 

privilege assertions and abandon the claim that gives rise to the privilege. Bittaker, 331 F.3d at 721. 

Waymo must disclose all documents and communications relating to its investigation or be barred from 

presenting any evidence regarding any alleged misappropriation based on the forensic investigation. 

Waymo’s attempt to limit the scope of its waiver fails. Ninth Circuit law is clear that express and implied 

waiver results in a waiver as to the entire subject matter. See id.; see also Fed. R. Evid. 502(a). To 

conclude otherwise would result in the fundamental unfairness of Waymo selectively disclosing 

privileged communications to an adversary, revealing those that support the cause while claiming the 

shelter of the privilege to avoid disclosing those that are less favorable. Phoenix Sols. Inc. v. Wells Fargo 

Bank, N.A., 254 F.R.D. 568, 575–76 (N.D. Cal. 2008). Waymo “appears primed to employ the favorable 

communications as a sword while guarding possibly damaging emails with the shield of the privilege, and 

that position undoubtedly creates an unfair prejudice to” Theranos, 2013 WL 2153276, at *4. 

The law draws no lines between the attorney-client privilege and work product doctrine here. Indeed, 

Waymo’s voluntary disclosure of work product to its litigation adversary “defeat[s] the policy underlying 

the privilege.” Bd. of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 237 F.R.D. 

618, 623 n.3 (N.D. Cal. 2006) (“[I]n these instances, ‘the criteria for waiver of the work product and 

attorney client privileges are equivalent.’”) (citing Carter v. Gibbs, 909 F.2d 1450, 1451 (Fed. Cir. 

1990)). Waymo does not even understand the line it has drawn as it has twice represented that its waiver 

extended to the attorney-client privilege, not just to work product (Exs. 7, 10) and has clawed back a work 

product document and continues to withhold work product documents relating to the investigation as 

evidenced by Waymo’s privilege logs. 

The Court should order Waymo to produce all information and documents relating to its investigations or 

preclude it from introducing any evidence of misappropriation based on the investigation at trial. 

Case 3:17-cv-00939-WHA Document 1163 Filed 08/11/17 Page 5 of 6
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CERTIFICATE OF SERVICE 

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the 

United States District Court for the Northern District of California by using the CM/ECF system 

on August 11, 2017. I further certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by the CM/ECF system. 

I certify under penalty of perjury that the foregoing is true and correct. Executed this 11th 

day of August 2017. 

 /s/ Neel Chatterjee 

 Neel Chatterjee

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