803 Hearst Avenue, Berkeley CA 94710 · www.ramsey-ehrlich.com · Tel: (510) 548-3600 · Fax: (510) 291-3060 

August 27, 2017 

Magistrate Judge Jacqueline Scott Corley 

By ECF Filing 

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

Dear Magistrate Judge Corley: 

Non-party Anthony Levandowski submits this brief in reply to Waymo’s August 25, 2017 letter 

brief, Dkt. 1355, challenging Mr. Levandowski’s assertion of his individual attorney-client 

privilege with respect to conversations with Uber’s counsel in February and March of 2017. 

Respectfully submitted, 

/s/ Miles Ehrlich 

Miles Ehrlich 

RAMSEY & EHRLICH LLP 

Counsel for Non-Party Anthony Levandowski 

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

 

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In its decision on the scope of Uber’s subject matter waiver, this Court noted that Mr. 

Levandowski held an individual attorney-client privilege (as extended through the common 

interest doctrine) in the conversations at issue. Dkt. 1311 at 2. And because “Uber cannot waive 

Mr. Levandowski’s privilege,” the Court held that it “cannot order Uber to testify as to what was 

said in the conversations covered by Uber’s waiver.” Id. The Court, however, provided Waymo 

the opportunity to object by close of discovery on August 24, 2017. Id. Thirty-five minutes after 

the midnight deadline, Waymo filed its objection. Dkt. 1355. We now reply. 

1. Mr. Levandowski’s Litigation-Related Communications with Uber’s Counsel During the 

Course of a Common Interest Agreement Are Protected by Mr. Levandowski’s AttorneyClient Privilege, Even If His Personal Attorney Was Not Present 

Waymo contends that Mr. Levandowski cannot assert his “individual” attorney-client privilege 

as to conversations regarding the litigation “[u]nless his own personal lawyers were also 

present.” Dkt. 1355 at 1. That is not the law. Multiple circuits have held that it is not “necessary 

for the attorney representing the communicating party to be present when [a] communication is 

made to the other party’s attorney” in order for that communication to be privileged. United 

States v. Schwimmer, 892 F.2d 237, 241; 244 (2d Cir. 1989) (information provided by one 

defendant to accountant and lawyers for co-defendant was covered by privilege, even though 

defendant’s personal attorney was not present during statements)

1

; see also United States v. 

McPartlin, 595 F.2d 1321, 1336-37 (7th Cir. 1979) (statements a defendant made to his codefendant’s investigator were privileged due to the joint defense agreement, even though 

defendant did not first make the statements to his own attorney and his personal attorney was not 

present when he spoke to the investigator); see also United States v. Henke, 222 F.3d 633, 637 

(9th Cir. 2000) (“A joint-defense agreement establishes an implied attorney-client relationship 

with the co-defendant, here between [two co-defendants’] attorneys and [other co-defendant 

asserting the privilege].”). 

The Ninth Circuit recognizes that, once the common-interest relationship is established, an 

implied attorney-client relationship “protects not only the confidentiality of communications 

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

party where a joint defense effort or strategy has been decided upon and undertaken by the 

parties and their respective counsel.’” United States v. Austin, 416 F.3d 1016, 1021 (9th Cir. 

2005) (quoting Schwimmer, 892 F.2d at 243) (emphasis added); see also United States v. 

Gonzalez, 669 F.3d 977, 978 (9th Cir. 2011) (quoting same language from Schwimmer). This 

flows from “the rationale for the joint defense rule,” which is that “persons who share a common 

interest in litigation should be able to communicate with their respective attorneys and with each 

other to more effectively prosecute or defend their claims.” Id. at 978 (quoting In re Grand Jury 

Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990) (“[P]ersons who share a common interest in 

 

1 Waymo incorrectly asserts that this Court has already rejected the applicability of Schwimmer to the 

question at hand. But the Court’s prior discussion of Schwimmer related to a different question: whether 

Mr. Levandowsk’s communications with Stroz before April 11, 2016 were protected by the commoninterest privilege. Because the Court found that Stroz was not Mr. Levandowski’s joint agent and because 

a common legal interest did not yet exist, it held that Schwimmer did not apply. Dkt. 670 at 2-3. Here, in 

contrast, the Court has found that a common interest privilege existed at the time of the statements in 

question, and the Ninth Circuit has twice cited Schwimmer for the proposition at issue here—namely, that 

one client’s statements to an attorney for another member of the common interest group are protected by 

the common interest privilege, irrespective of whether that individual’s own attorney is also present. 

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litigation should be able to communicate with their respective attorneys and with each other to 

more effectively prosecute or defend their claims.”) And as the Supreme Court has emphasized, 

the privilege applies not just to the giving of legal advice, but also to “the giving of information 

to a lawyer to enable him to give sound and informed advice”; for “[t]he first step in the 

resolution of any legal problem is ascertaining the factual background and sifting through the 

facts with an eye to the legally relevant.” Upjohn v. United States, 449 U.S. 383, 390 (1981). 

This Court has already ruled that a valid common-interest agreement existed between Mr. 

Levandowski and Uber (and others) as of April 11, 2016 concerning what was then just potential 

litigation by Waymo. Dkt. 731 at 4. By Waymo’s own admission, the conversations to which it 

now seeks access were discussions about the claims that Waymo asserted in its lawsuit against 

Uber. Dkt. 1355 at 1-2. And, as Uber acknowledges, Mr. Levandowski had retained Ramsey & 

Ehrlich as his new personal counsel as of March 19, 2017. Dkt. 1355 at 2. The subject matter 

discussed in the March meetings at issue concerned facts relating to the allegations in the 

pending litigation—matters about which Mr. Levandowski and Uber had shared a common legal 

interest since the previous April. As such, Mr. Levandowski’s communications were protected 

by his individual attorney-client privilege, as extended by the common interest doctrine. 

Gonzalez, 669 F.3d at 981-982 (“the joint defense privilege is an extension of the attorney-client 

privilege . . . . [And] the case law is clear that one party to a JDA cannot unilaterally waive the 

privilege for other holders.” Mr. Levandowski’s individual assertion of privilege is thus valid, 

and it has not been waived. 

2. Mr. Levandowski’s Personal Attorney-Client Privilege Applies With Equal Force to 

Conversations in Late February and Early March Attended By His MoFo Lawyers 

Waymo next argues that Mr. Levandowski has no privilege in similar conversations that 

supposedly occurred before Mr. Levandowski retained Ramsey & Ehrlich as his personal 

counsel. But Waymo’s argument ignores that Mr. Levandowski was personally represented 

during the period in question not only by John Gardner, but also by lawyers from Morrison & 

Foerster (MoFo). Dkt. 883 ¶ 6, Declaration of MoFo Partner Eric Tate (“[S]eparate from our 

representation of Uber in this matter, MoFo previously represented Anthony Levandowski 

personally in two arbitration matters filed by Google and Waymo against Mr. Levandowski” 

through, at least, March 2017) (emphasis added). 

According to Waymo’s submission, attorneys from MoFo, including Mr. Tate, participated in the 

very meetings in which they allege Mr. Levandowski had no personal privilege. Dkt. 1355 at 2. 

And Waymo has conceded that common interest meetings involving an individual’s own 

personal attorney are protected by both parties’ separate and overlapping attorney-client 

privileges (here, Uber’s and Mr. Levandowski’s). See Dkt. 1355 at 2, n.1 (“Mr. Levandowski 

has a colorable claim of common interest protection [in the 3rd meeting], which was also attended 

by Mr. Levandowski’s personal attorneys. Because there is a pre-existing privilege over Mr. 

Levandowski’s communications with his own attorneys, the non-waiver doctrine of the common 

interest privilege could apply even though the communications were disclosed to Uber.”) 

And further, as noted above, even if his own personal attorneys had not participated in the earlier 

meetings, Mr. Levandowski would still have a privilege in those conversations because (1) there 

was a valid common-interest relationship between the attendees, (2) the matters discussed 

pertained to the ongoing litigation, and (3) one party cannot waive another’s attorney-client 

privilege. 

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