NON-PARTY ANTHONY LEVANDOWSKI’S OPPOSITION TO MOTION TO COMPEL (CASE NO.: 3:17-CV-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. 

Case No.: 3:17-cv-00939-WHA 

NON-PARTY ANTHONY 

LEVANDOWSKI’S OPPOSITION TO 

MOTION TO COMPEL 

Date: June 8, 2017 

Time: 10:00 a.m. 

Ctrm: F, 15th Floor 

Judge: The Honorable Jacqueline Scott Corley 

Trial Date: October 2, 2017 

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TABLE OF CONTENTS 

Page(s) 

I. INTRODUCTION ..................................................................................................................... 1

II. BACKGROUND ....................................................................................................................... 1

III. ARGUMENT ............................................................................................................................. 3

A. Attorney-Client Privilege, Work Product Doctrine, and Common Interest Privilege 

 All Protect the Stroz Friedberg Report................................................................................. 3 

1. The Stroz Friedberg Report is attorney-client privileged. ............................................. 3 

2. Stroz Friedberg’s work is protected attorney work product........................................... 5 

3. A valid common interest existed. ................................................................................... 7 

4. Mr. Levandowski’s reasonable reliance on the existence of a privilege 

warrants recognizing privilege. ...................................................................................... 9 

B. The Crime-Fraud Exception Does Not Apply. .................................................................. 11 

IV. CONCLUSION ........................................................................................................................ 12

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Admiral Ins. Co. v. U.S. District Court, 

881 F.2d 1486 (9th Cir. 1989) ...........................................................................................................5 

B.C.F. Oil Ref., Inc. v. Consol. Edison Co. of N.Y., 

168 F.R.D. 161 (S.D.N.Y. 1996) ......................................................................................................7 

BriteSmile, Inc. v. Discus Dental Inc., 

No. C 02-3220 JSW (JL), 2004 WL 2271589, (N.D. Cal. Aug. 10, 2004), aff'd, 

No. C 02-03220 JSW, 2004 WL 3331770 (N.D. Cal. Oct. 26, 2004) ..............................................8 

Callwave Commc’ns, LLC v. Wavemarket, Inc., 

No. C 14-80112 JSW (LB), 2015 WL 831539 (N.D. Cal. Feb. 23, 2015) .......................................8 

Clark v. United States, 

289 U.S. 1 (1933) ............................................................................................................................11 

Fisher v. United States, 

425 U.S. 391 (1976) ........................................................................................................................12 

F.T.C. v. Grolier Inc., 

462 U.S. 19 (1983) ............................................................................................................................5 

Griffin v. California, 

380 U.S. 609 (1965) ........................................................................................................................12 

Hewlett-Packard Co. v. Bausch & Lomb, Inc., 

115 F.R.D. 308 (N.D. Cal. 1987) ......................................................................................................8 

Holmes v. Collection Bureau of Am., Ltd., 

No. C 09-02540 WHA, 2010 WL 143484 (N.D. Cal. Jan. 8, 2010) .............................................7, 8 

Hunydee v. United States, 

355 F.2d 183 (9th Cir. 1965) .............................................................................................................8 

In re Asia Glob. Crossing, Ltd., 

322 B.R. 247 (Bankr. S.D.N.Y. 2005) ..............................................................................................9 

In re Copper Mkt. Antitrust Litig., 

200 F.R.D. 213 (S.D.N.Y. 2001) ......................................................................................................9 

In re Grand Jury Investigation, 

810 F.3d 1110 (9th Cir. 2016) .........................................................................................................11 

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In re Grand Jury Proceedings, 

87 F.3d 377 (9th Cir. 1996) .............................................................................................................11 

In re Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 

357 F.3d 900 (9th Cir. 2004) .............................................................................................................5 

MediaTek Inc. v. Freescale Semiconductor, Inc., 

No. 411CV05341YGRJSC, 2013 WL 5594474 (N.D. Cal. Oct. 10, 2013) .....................................5 

Miller v. Int'l Bus. Machines, 

No. C02-2118 MJJ(MEJ), 2006 WL 6619990 (N.D. Cal. Apr. 14, 2006)........................................9 

Rembrandt Patent Innovations, LLC v. Apple Inc., 

No. C 14-05093 WHA, 2016 WL 427363 (N.D. Cal. Feb. 4, 2016) ....................................3, 4, 7, 8 

Republic Gear Co. v. Borg-Warner Corp., 

381 F.2d 551 (2d Cir. 1967) ..............................................................................................................4 

Samuels v. Mitchell, 

155 F.R.D. 195 (N.D. Cal. 1994) ......................................................................................................6 

S.E.C. v. Berry, 

No. C07-04431 RMW HRL, 2011 WL 825742 (N.D. Cal. Mar. 7 2011) ........................................7 

Segerstrom v. United States, 

No. C 00-0833 SI, 2001 WL 283805 (N.D. Cal. Feb. 6, 2001) ....................................................4, 5 

Speaker ex rel. Speaker v. Cty. of San Bernardino, 

82 F. Supp. 2d 1105 (C.D. Cal. 2000) ............................................................................................10 

Sullivan v. Warminster Twp., 

274 F.R.D. 147 (E.D. Pa. 2011) ........................................................................................................6

Upjohn Co. v. United States, 

449 U.S. 383 (1981) ..................................................................................................................3, 4, 9 

United States v. Bauer, 

132 F.3d 504 (9th Cir. 1997) ...........................................................................................................10

United States v. Gonzalez, 

669 F.3d 974 (9th Cir. 2012) .............................................................................................................7

United States v. Ostrer, 

422 F. Supp. 93 (S.D.N.Y. 1976) ....................................................................................................10 

United States v. Rivera, 

837 F. Supp. 565 (S.D.N.Y. 1993) ..................................................................................................10 

United States v. Ruehle, 

583 F.3d 600 (9th Cir. 2009) .............................................................................................................3 

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United States v. Spector, 

793 F.2d 932 (8th Cir. 1986) .............................................................................................................9 

United States v. Zolin, 

491 U.S. 554 (1989) ..................................................................................................................11, 12 

Other Authorities 

Fed. R. Civ. P. 26(b)(3) ...........................................................................................................................5 

8 J. Wigmore, Wigmore on Evidence § 2298 (J. McNaughton rev. ed. 1961) .....................................12 

56 F.R.D. 183 ....................................................................................................................................9, 10 

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Defendant Anthony Levandowski (“Mr. Levandowski”) submits the following papers in 

opposition to Plaintiff Waymo LLC’s (“Waymo”) Motion to Compel (Dkt. No. 147). 

I. INTRODUCTION 

A few facts here are undisputed: 

 Bracing themselves for potential litigation with Google and/or Waymo, the parties 

hired litigation counsel to help them prepare a future defense. 

 The parties recognized that the threat was common to all of them. 

 The parties expressed their common interest in oral communications, through emails, 

and in a Joint Defense, Common Interest, and Confidentiality Agreement (the “Joint 

Defense Agreement”). 

 Litigation counsel then hired a consultant to assist with a factual investigation. 

 The information obtained by the consultant was used by litigation counsel to develop a 

defensive strategy in case Google and/or Waymo sued. 

Despite these uncontradicted facts, Waymo now argues that the parties were acting for a business, not 

legal, purpose, and seeks to eviscerate the well-settled protections of attorney-client privilege, work 

product protection, and common interest privilege. The sworn record establishes that Waymo is 

wrong, and that the Stroz Friedberg work was done for a legal purpose. This Court should deny 

Plaintiff Waymo’s Motion to Compel privileged documents. 

II. BACKGROUND 

This is a motion about documents that lawyers and their consultant created to prepare for 

litigation that was likely to occur following a proposed corporate transaction. In 2016, Uber 

Technologies, Inc. (“Uber”) considered partnering with Ottomotto LLC (“Ottomotto”) and Otto 

Trucking LLC (“Otto Trucking,” and collectively with Ottomotto, “Otto”). Declaration of Eric A. 

Tate (“Tate Decl.”) ¶ 2. Mr. Levandowski and Lior Ron (“Mr. Ron”) were former Google employees 

who had left to form Otto.1 Id. ¶ 3. The Common Interest Group was concerned that Uber’s 

 

1

 For the purposes of this Motion, Uber, Ottomotto, Otto Trucking, Mr. Levandowski, and Mr. Ron 

are collectively referred to as the “Common Interest Group.” 

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acquisition of Ottomotto (“Uber-Ottomotto acquisition”) could spark intense litigation from 

Google/Waymo because of “the potentially billion dollar commercial market involved.” Declaration 

of John F. Gardner (“Gardner Decl.”) ¶ 3. 

Members of the Common Interest Group retained counsel to provide legal advice surrounding 

the transaction and to prepare for litigation that might occur as a result of the transaction. Mr. 

Levandowski retained John F. Gardner (“Mr. Gardner”) of Donahue Fitzgerald LLC to “evaluate 

those risks, anticipate defenses, and assess legal strategies.” Id. ¶ 4. Mr. Ron retained Alisa Baker of 

Levine & Baker LLP. Tate Decl. ¶ 4. Uber retained Morrison & Foerster LLP (“Morrison”) to 

advise on “potential claims that could be brought by Google against two of [Ottomotto’s] founders, 

Anthony Levandowski and Lior Ron, who had left Google to create the target companies that 

ultimately became Ottomotto and Otto Trucking.” Id. ¶ 3. Otto retained O’Melveny & Myers LLP 

(“O’Melveny”). Id. ¶ 4. Separate corporate lawyers were also employed to advise the parties with 

respect to the corporate acquisition. Id. The corporate transaction counsel for Uber was Cooley LLP, 

and the corporate transaction counsel for Otto were corporate transactional lawyers at O’Melveny. 

Id. ¶¶ 3–4. 

From the very beginning, the Common Interest Group recognized their shared common 

interest in defending against legal claims. Gardner Decl. ¶¶ 3–4. They also recognized that to 

prepare a defense, they needed to ensure that communications between them remained confidential 

and privileged. Id. ¶ 4. Accordingly, the Common Interest Group orally entered into a common 

interest agreement, sent emails demonstrating their understanding, and later memorialized their oral 

agreement by executing a written joint defense agreement. Tate Decl. ¶¶ 6–8, 10; Gardner Decl. 

¶¶ 8–10. At all times, the Common Interest Group and their counsel operated within the boundaries 

of their common interest privilege – namely, they operated with the understanding that information 

gathered and documents shared would remain privileged and confidential among the Common 

Interest Group. See, e.g., Gardner Decl. ¶ 9 (“I would not have communicated freely with these 

parties, in particular with respect to the Stroz investigation, but for my understanding that those 

communications were privileged.”). 

Morrison and O’Melveny retained an investigative firm, Stroz Friedberg, to conduct a 

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detailed investigation. These were litigation consultants hired by litigation counsel to help prepare a 

litigation defense. During the course of the resulting investigation, Morrison and O’Melveny 

litigators regularly consulted with Stroz Friedberg personnel to learn relevant facts and information 

so they could better craft legal advice for Otto and Uber regarding potential litigation. Mr. 

Levandowski and Mr. Ron’s counsel also interacted with Stroz Friedberg to provide guidance as to 

the investigation. During the investigation, each of the lawyers discussed issues with Stroz Friedberg 

and gave litigation advice as a result of what they learned. Once Stroz Friedberg concluded its 

investigation, it summarized its legal findings in a report published in August 2016 (the “Stroz 

Friedberg report”).2 The Common Interest Group used the Stroz Friedberg investigation and 

resulting report to craft and define much of their litigation defense strategy. The Stroz Friedberg 

report is the centerpiece of the present dispute. 

III. ARGUMENT 

A. Attorney-Client Privilege, Work Product Doctrine, and Common Interest 

Privilege All Protect the Stroz Friedberg Report. 

1. The Stroz Friedberg Report is attorney-client privileged. 

Waymo wants a copy of the Stroz Friedberg report. Waymo should not get it. It is attorneyclient privileged. 

The attorney-client privilege protects confidential communications between attorneys and 

clients for the purpose of giving legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 

The privilege exists where: “(1) . . . legal advice of any kind is sought (2) from a professional legal 

adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in 

confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by 

himself or by the legal adviser, (8) unless the protection be waived.” Rembrandt Patent Innovations, 

LLC v. Apple Inc., No. C 14-05093 WHA, 2016 WL 427363, at *3 (N.D. Cal. Feb. 4, 2016) (quoting 

United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)). The attorney-client privilege may extend 

 

2

 For purposes of this memorandum, “Stroz Friedberg report” refers to both the report and its 

exhibits. 

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to communications with third parties who have been engaged to help the attorney provide legal 

advice. See, e.g., Segerstrom v. United States, No. C 00-0833 SI, 2001 WL 283805, at *2 (N.D. Cal. 

Feb. 6, 2001) (“The [attorney-client] privilege also covers papers prepared by the attorney or by a 

third party at the attorney’s request for the purpose of advising the client, insofar as the papers are 

based on and would tend to reveal the client’s confidential communications.”) (citation omitted). 

The attorney-client privilege “exists to protect not only the giving of professional advice to 

those who can act on it but also the giving of information to the lawyer to enable him to give sound 

and informed advice.” Upjohn Co., 449 U.S. at 390 (citations omitted). However, the privilege 

belongs to the client, regardless of whether the client is a party to the case in which the 

communication is sought. See, e.g., Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 556 (2d 

Cir. 1967) (“Not only may an attorney invoke the privilege in his client’s behalf when the client is not 

a party to the proceeding in which disclosure is sought but he should do so, for he is duty-bound to 

raise the claim in any proceeding in order to protect communications made in confidence.”) (internal 

quotations and citations omitted). It is an attorney’s duty to invoke the privilege on the client’s 

behalf and refuse to reveal confidential communications; the attorney cannot waive privilege on the 

client’s behalf. Id. 

It is undisputed that Mr. Levandowski’s communications with his own lawyer, Mr. Gardner, 

are attorney-client privileged. In January 2016, prior to the creation of the Stroz Friedberg report and 

the execution of the Joint Defense Agreement, Mr. Levandowski consulted with Mr. Gardner to 

receive personal counsel regarding his departure from Google and his joining Uber as part of the 

Uber-Ottomotto acquisition. From the outset, Mr. Levandowski recognized —as did the 

Defendants—that Google might initiate litigation following Uber’s acquisition of Ottomotto. 

Contrary to Waymo’s unsupported allegations, Mr. Levandowski’s communications were

offered so that Mr. Gardner could plan a legal defense. His communications with the Common 

Interest Group were made in a manner to ensure that his privilege was not waived and that it 

remained confidential. Mr. Levandowski’s confidential communications to Mr. Gardner in order to 

receive candid legal advice is textbook attorney-client privileged information. See, e.g., Rembrandt 

Patent Innovations, LLC, 2016 WL 427363, at *5–6 (finding attorney-client privilege and rejecting 

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plaintiff’s argument that attorney-client communications and disclosures were made for commercial 

interests, rather than legal interests, when they occurred for “conducting due diligence, perfecting 

title in [a] patent, identifying targets for litigation, and developing legal strategies”). 

Waymo mistakenly argues that Mr. Levandowski waived any attorney-client privilege by 

interacting with Stroz Friedberg. Mr. Levandowski was Ottomotto’s Chief Executive Officer. Stroz 

Friedberg’s investigation—as well as its final report—are protected by the attorney-client privilege 

because Stroz Friedberg’s work was to assist the lawyers advising Mr. Levandowski, Ottomotto, and 

the other parties. Litigation counsel retained Stroz Friedberg to assist all parties. The Stroz 

Friedberg report was created at the direction of litigation counsel, supervised by litigation counsel, 

and delivered to litigation counsel and no one else. When a consultant is hired to assist litigation 

counsel, privilege extends to those consultants. No waiver occurs when the consultation was 

“primarily or predominantly to facilitate legal advice.” See MediaTek Inc. v. Freescale 

Semiconductor, Inc., No. 411-CV-05341 YGR JSC, 2013 WL 5594474, at *3 (N.D. Cal. Oct. 10, 

2013) (“[I]f [a] third-party consultant is involved in the giving of legal advice, the privilege obtains.” 

) (citations omitted); see also Segerstrom, 2001 WL 283805, at *4 (N.D. Cal. Feb. 6, 2001) (finding 

no waiver of attorney-client privilege where “communications between third parties and the attorneys 

were rendered at the attorneys’ request to assist in providing legal services to the clients”). 

2. Stroz Friedberg’s work is also protected attorney work product. 

The Stroz Friedberg report is attorney work product. The work-product doctrine protects 

“from discovery documents and tangible things prepared by a party or his representative in 

anticipation of litigation.” Admiral Ins. Co. v. U.S. District Court, 881 F.2d 1486, 1494 (9th Cir. 

1989); see also Fed. R. Civ. P. 26(b)(3). Rule 26(b)(3) protects materials prepared for any litigation 

or trial as long as they were prepared by or for a party to the subsequent litigation. See F.T.C. v. 

Grolier Inc., 462 U.S. 19, 25 (1983). The standard for attorney work product does not consider 

whether litigation was a primary or secondary motive behind the creation of a document. In re 

Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004). Rather, it 

considers the totality of the circumstances and affords protection when it can fairly be said that the 

“document was created because of anticipated litigation, and would not have been created in 

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substantially similar form but for the prospect of that litigation.” Id.

The Stroz Friedberg report was produced in anticipation of litigation. Gardner Decl. ¶ 6. 

Here, the Common Interest Group recognized the need to prepare for a potential future suit with 

Google/Waymo, and commissioned an investigation and report by Stroz Friedberg to inform their 

legal strategy. In fact, the Common Interest Group entered their Joint Defense Agreement in order to 

expedite the process of sharing confidential information in preparation of anticipated litigation after 

acquisition. Baker Decl. ¶¶ 5,6. Notably, in entering a joint defense agreement, Mr. Levandowski 

and Otto expressly preserved their right to attorney client-privilege and work-product immunity: 

“[Otto and Mr. Levandowski], as the holder of those privileges, do[] not intend any communications 

between [the parties] to be deemed a waiver of [attorney-client and attorney work product] privileges 

whether not specifically referenced in a particular document or communication, and whether or not 

we enter into a formal Joint Defense Agreement with respect those matters.” 

The fact that the acquisition of Ottomotto was being finalized while the Common Interest 

Group was obtaining this report is beside the point. A term sheet had already been signed. Uber had 

already agreed to the acquisition. The Common Interest Group had a separate need to share 

information through a joint defense agreement to prepare for possible litigation. The Common 

Interest Group shared an interest in ensuring that the individual group members complied with all 

legal obligations to protect individual attorney-client privileges and work product protections. 

Waymo incorrectly argues that the Common Interest Group waived their work product 

protection by sharing information with Stroz Friedberg. Stroz Friedberg was part of the team that 

helped inform the litigation strategy, and was part of the investigative team creating the work 

product. In addition, work product protection is not waived by merely sharing information with third 

parties when parties share an interest. Rather, work product is only waived when disclosed to an 

adversary or to someone who “substantially increase[s] the opportunities for potential adversaries to 

obtain the information.” Samuels v. Mitchell, 155 F.R.D. 195, 200 (N.D. Cal. 1994) (citation 

omitted); see also Sullivan v. Warminster Twp., 274 F.R.D. 147, 150 (E.D. Pa. 2011) (“disclosure to a 

third party only waives the work-product privilege if it permits an adversary to gain access to the 

information”). 

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This rule makes sense, as retention of consultants is often necessary to develop litigation 

strategy. For that reason, Courts have held that disclosing work product to a witness or third party 

does not waive protection because such disclosures are often necessary to enable the attorney to 

prepare for litigation. This understanding is consistent with the purposes of the work product 

doctrine. See S.E.C. v. Berry, No. C07-04431 RMW HRL, 2011 WL 825742, at *6–8 (N.D. Cal. 

Mar. 7 2011) (disclosure of work product to independent auditors does not waive protection); see 

also B.C.F. Oil Ref., Inc. v. Consol. Edison Co. of N.Y., 168 F.R.D. 161, 165–66 (S.D.N.Y. 1996) 

(waiver does not occur when subject of investigative interview is given copy of interview transcript). 

3. A valid common interest existed. 

The common interest privilege also applies here, and precludes waiver of the attorney-client 

privilege or work product protection. The Common Interest Group recognized at the outset that they 

shared a common legal interest in connection with the Uber-Otto acquisition. As Judge Alsup 

explained: 

[An exception to the waiver of privilege] applies where parties are 

represented by separate counsel but engage in a common legal 

enterprise. The interests of the parties involved in a common defense 

need not be identical, and, indeed may even be adverse in some 

respects. The joint-defense exception, however, protects only those 

communications that are part of an on-going and joint effort to set up a 

common defense strategy. 

Rembrandt Patent Innovations, LLC, 2016 WL 427363, at *7 (citing Holmes v. Collection Bureau of 

Am., Ltd., No. C 09-02540 WHA, 2010 WL 143484, at *3 (N.D. Cal. Jan. 8, 2010)) (emphasis 

added). This privilege is so strong that no one member of a joint interest group can waive it. United 

States v. Gonzalez, 669 F.3d 974, 982–83 (9th Cir. 2012). 

What was true in Rembrandt remains true here. The Common Interest Group—Uber, 

Ottomotto, Otto Trucking, Mr. Levandowski, and Mr. Ron—were, from the outset, concerned about 

litigation in connection with the Uber-Otto acquisition. They were concerned that Google might 

litigate as a result of the transaction and, on that basis, sought legal counsel to help prepare a defense. 

Or as Judge Alsup put it in Rembrandt Patent Innovations, LLC, they were “part of an on-going and 

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joint effort to set up a common defense strategy.” 2016 WL 427363, at *7. 

Waymo claims that the form of the transaction here precludes a finding of common legal 

interest. Waymo is wrong. Rembrandt Patent Innovations, LLC expressly recognizes that 

circumstances surrounding the assertions of privilege may be nuanced and not subject to such 

sweeping and generalized premises. Id. at *7 (“The interests of the parties involved in a common 

defense need not be identical, and, indeed may even be adverse in some respects.”) (emphasis added); 

accord Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965); Holmes v. Collection Bureau of 

Am., Ltd., No. C 09-02540 WHA, 2010 WL 143484, at *2 (N.D. Cal. Jan. 8, 2010). The fact that 

Uber was acquiring Ottomotto does not preclude the inquiry surrounding common-interest privilege, 

but invites it. 

Indeed, this District has recognized that such common legal interests exist in the buyer-seller 

context, see, e.g., BriteSmile, Inc. v. Discus Dental Inc., No. C 02-3220 JSW (JL), 2004 WL 

2271589, at *2 (N.D. Cal. Aug. 10, 2004), aff’d, No. C 02-03220 JSW, 2004 WL 3331770 (N.D. Cal. 

Oct. 26, 2004) (affirming Judge Larson’s finding of common legal interest in connection with 

technology acquisition); Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D. 

Cal. 1987) (finding the parties had a common legal interest in connection with the sale of a business), 

and in cases where the parties enter into indemnification agreements among each other, see, e.g., 

Callwave Commc’ns, LLC v. Wavemarket, Inc., No. C 14-80112 JSW (LB), 2015 WL 831539, at *4 

(N.D. Cal. Feb. 23, 2015) (Judge Beeler explaining that the parties “have an interest in defeating . . . 

claims of patent infringement in the Underlying Litigation. That they also have negotiated possible 

indemnification with respect to those claims does not necessarily cancel that out.”). 

Waymo strains to characterize the Joint Defense Agreement as a document purporting to 

show a common business interest among the Common Interest Group. This is not a case where a 

consultant is hired, does not interact with counsel, and only later does a party try to claim attorneyclient and attorney work product immunity. Even a cursory reading of the Joint Defense Agreement, 

the retention of Stroz Friedberg, or the report itself demonstrates that the interest here was legal, not 

business. The parties entered into the Joint Defense Agreement to memorialize their understanding 

that they shared common legal interests with respect to the Uber-Otto acquisition. Tate 

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Decl. ¶ 6. Uber and Otto also executed an indemnification agreement that, inter alia, engaged Stroz 

Friedberg to conduct an investigation related to the transaction. Gardner Decl. ¶¶ 5–6. The goal of 

Stroz Friedberg’s investigation and report was to assist litigation counsel in preparing a litigation 

defense. All communications were with litigation counsel to advance a defense objective. Here, the 

consultant was hired for a litigation purpose at the very beginning, and the Common Interest Group 

vigorously maintained confidentiality in their communications and work product. 

4. Mr. Levandowski’s reasonable reliance on the existence of a privilege warrants 

recognizing privilege. 

Mr. Levandowski’s reliance on the privilege and work product protections provide an 

independent basis to find that each of these protections apply. The cornerstone of the attorney-client 

privilege is to protect the client against the invasion of its most sensitive and confidential 

communications with its lawyers, and to encourage the complete disclosure of information between 

attorney and client, all furthering the interests of justice. Upjohn Co., 449 U.S. at 389. The privilege 

“exists to protect not only the giving of professional advice to those who can act on it, but also the 

giving of information to the lawyer to enable him to give sound and informed advice.” Id. at 390. 

When a client reasonably believes that the individual with whom he or she was 

communicating was an attorney competent to render legal advice, those communications are 

privileged. The Supreme Court articulated this “reasonable belief” test in Supreme Court Standard 

503, which provides that for purposes of applying attorney-client privilege, an attorney is defined as a 

“person authorized, or reasonably believed by the client to be authorized, to practice law in any state 

or nation.” Supreme Court Standard 503(a)(2), 56 F.R.D. 183, 236 (1973).3

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belief” standard has long been followed by federal courts, including courts in this District. See, e.g., 

Miller v. Int’l Bus. Machines, No. C02-2118 MJJ(MEJ), 2006 WL 6619990, at *6 (N.D. Cal. Apr. 14, 

2006) (finding the attorney-client privilege protected the production of communications and 

documents when the plaintiff “could have reasonably believed that [a third party] was acting as a 

 

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States v. Spector, 793 F.2d 932, 938 (8th Cir. 1986), cert. denied, 479 U.S. 1031 (1987); see also In 

re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 217–18 n.2 (S.D.N.Y. 2001). 

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lawyer”); Speaker ex rel. Speaker v. Cty. of San Bernardino, 82 F. Supp. 2d 1105, 1112 (C.D. Cal. 

2000) (“[S]everal courts and treatises have stated that where a client reasonably believed that her/his 

confidential communication was with an attorney, the attorney/client privilege still applies.”); United 

States v. Rivera, 837 F. Supp. 565, 568 n.1 (S.D.N.Y. 1993) (same). 

Mr. Levandowski, Mr. Ron, Uber, and Otto took pains to ensure from the start that 

communications and documents necessary for counsel to render competent legal advice remained 

protected among all parties. Mr. Levandowski is entitled to reasonably rely upon the assured 

confidentiality. Mr. Levandowski retained Mr. Gardner as his counsel. It was on this basis that he 

revealed to Mr. Gardner information regarding his tenure at Waymo, his role in launching Ottomotto 

and Otto Trucking, and, importantly, the documents that now form the subject of this motion. 

Waymo’s request seeks to undermine a fundamental protection afforded by our legal system. See

United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997) (“It is important to note that the attorneyclient privilege is, perhaps, the most sacred of all legally recognized privileges, and its preservation is 

essential to the just and orderly operation of our legal system.”). Moreover, when it became clear 

that Uber would acquire Ottomotto and Otto Trucking, Mr. Levandowski took reasonable steps to 

preserve that privilege throughout the entirety of the acquisition process. Gardner Decl. ¶¶ 8–10, 12. 

Mr. Levandowski, Ottomotto, Otto Trucking, and Uber recognized that all parties shared common 

legal interests in the course of the acquisition. Id. ¶ 4. The Common Interest Group entered into an 

oral agreement memorializing their understanding of protected information, and weeks later entered 

into the written Joint Defense Agreement. 

B. The Crime-Fraud Exception Does Not Apply 

Waymo argues that it is entitled to discovery of the privileged documents on the basis of the 

crime-fraud exception. However, Waymo fails to make any of the requisite showings necessary to 

establish that the exception applies here. 

To invoke the crime-fraud exception, Waymo must satisfy the Ninth Circuit’s two-part test: 

First, the party must show that “the client was engaged in or planning a 

criminal or fraudulent scheme when it sought the advice of counsel to 

further the scheme.” Second, it must demonstrate that the attorneyclient communications for which production is sought are “sufficiently 

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related to” and were made “in furtherance of [the] intended, or present, 

continuing illegality.” 

In re Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016) (citations omitted) (emphasis 

added). Here, Waymo fails to show either; Waymo does not identify any ongoing crime or fraud, nor 

does it point to any attorney-client communications that were used in furtherance of that alleged 

crime or fraud. 

To prevail, Waymo must set forth a reasonable basis that Mr. Levandowski was committing 

or intending to commit a crime or fraud at the time that he sought the advice from his attorney. 

Waymo has not met this burden. 

The timing of the crime that Waymo alleges occurred here is important. The exception 

applies to ongoing or future crimes only, and does not overcome the attorney-client privilege with 

respect to communications of past wrongdoings, the commission of which have ceased by the time 

the client sought the advice of counsel. See United States v. Zolin, 491 U.S. 554, 562–63 (1989) 

(“The attorney-client privilege ‘ceas[es] to operate at a certain point, namely, where the desired 

advice refers not to prior wrongdoing, but to future wrongdoing.’” (citing 8 J. Wigmore, § 2298 

(McNaughton Rev. 1961) (emphasis in original); Clark v. United States, 289 U.S. 1, 15 (1933)); see 

also In re Grand Jury Proceedings, 87 F.3d 377, 381 (9th Cir. 1996) (affirming district court’s 

finding of no crime-fraud exception, and explaining that “the [crime-fraud] exception does not sweep 

so broadly that it discourages clients from ‘mak[ing] full disclosure to their attorneys of past

wrongdoings, in order that the client may obtain the aid of persons having knowledge of the law and 

skilled in its practice’”) (citing Zolin, 491 U.S. at 562). 

Waymo’s factual argument reflects that no ongoing crime or fraud existed when Mr. 

Levandowski sought the advice of counsel. Waymo alleges that Mr. Levandowski’s crime was in the 

commission of trade secret theft. Mot. at 13. That occurred, Waymo alleges, prior to Mr. 

Levandowski’s departure from Google. The documents at issue here were created at least two 

months after Mr. Levandowski left Google. 

Waymo next contends that the ongoing criminal activity is in the ongoing concealment of 

trade secret misappropriation by way of Defendants’ refusal to produce the documents. Mot. at 14 

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(“There is also substantial evidence that the withheld Stroz Friedberg report is related to and in 

furtherance of at least concealing that trade secret theft.”). The mere act of withholding information 

from the subpoenaing party cannot form the basis of waiving attorney-client privilege via the crimefraud exception because the very purpose of the attorney-client privilege is to maintain the 

confidences of communications between clients and their attorneys. Zolin, 491 U.S. at 562 

(expressly recognizing that “the [attorney-client] privilege has the effect of withholding relevant 

information from the factfinder”) (emphasis added) (quoting Fisher v. United States, 425 U.S. 391, 

403 (1976)). 

Finally, Waymo requests the Court to nevertheless pierce the privilege on the basis that the 

Court “may draw [] an inference” of wrongdoing. Mot. at 13–14 (“The Court may infer from these 

invocations of the Fifth Amendment that Mr. Levandowski and Defendants had a common interest in 

planning, engaging in, or concealing the misappropriation of Waymo’s trade secrets.”). But again, 

such an interpretation misapplies the crime-fraud exception. The inference is the first step, not the 

last, in determining whether the exception applies. To otherwise follow Waymo’s argument to its 

logical conclusion: invoking a privilege in one manner, i.e., through the Fifth Amendment, would by 

itself revoke privilege in another, i.e., the attorney-client privilege. Of course, this makes no sense, 

nor is it supported in law. See Griffin v. California, 380 U.S. 609, 614 (1965) (recognizing that 

allowing an opponent to comment on a claim of privilege would seriously undermine the value of the 

privilege, and therefore forbidding prosecutors to comment on an accused’s assertion of the Fifth 

Amendment privilege against self-incrimination). 

IV. CONCLUSION 

For the foregoing reasons, Mr. Levandowski respectfully requests that the Court DENY 

Plaintiff Waymo’s Motion to Compel. 

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Dated: May 8, 2017 Respectfully submitted, 

By: /s/ 

Miles Ehrlich 

Ismail Ramsey 

Amy Craig 

Ramsey & Ehrlich LLP 

803 Hearst Avenue 

Berkeley, CA 94710 

Tel: (510) 548-3600 

Fax: (510) 291-3060 

miles@ramsey-ehrlich.com 

izzy@ramsey-ehrlich.com 

amy@ramsey-ehrlich.com 

Attorneys for Non-Party 

ANTHONY LEVANDOWSKI 

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