June 9, 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 moving to quash Waymo LLC’s (“Waymo”) Subpoena to Stroz 

Friedberg LLC (“Stroz”). 

Sincerely, 

 /s/ Karen L. Dunn

 Karen L. Dunn 

Counsel for Uber Technologies, Inc. and 

Ottomotto LLC 

cc: counsel of record; Special Master John Cooper; counsel for Stroz Friedberg, LLC 

 

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Defendants Uber Technologies Inc. and Ottomotto LLC’s Motion to Quash the Stroz Subpoena 

Case No. C 17-00939 WHA 

Defendants Uber Technologies Inc. and Ottomotto LLC (collectively, “Uber”) hereby move to 

quash the subpoena (the “Stroz Subpoena,” attached hereto as Ex. 1) issued by Plaintiff Waymo 

LLC (“Waymo”) to Stroz Friedberg, LLC (“Stroz”) to the extent it calls for the production of 

documents and communications protected by Uber’s attorney-client privilege and work product 

protections. 

I. RFPs Subject to this Letter Motion1

Uber moves to quash the following Requests for Production (“RFPs”) in the Stroz Subpoena: 

 RFPs 1, 2, 3, 4, and 5: these RFPs call for (1) the letter whereby Morrison & Foerster, 

LLP (“MoFo”) and O’Melveny & Myers LLP (“OMM”) engaged Stroz to perform the 

diligence investigation, as well as (2) the letter agreements between Stroz and counsel for 

Anthony Levandowski (“Levandowski”), John Gardner.2

 

 RFPs 6, 7, 8: these RFPs call for production of the Due Diligence Report, as well as any 

other reports or analyses created by Stroz pursuant to its retention with MoFo and OMM. 

 RFPs 13, 14, 15, 18, 19, 28, 29: these RFPs call for all documents and communications 

regarding the diligence investigation among Stroz, OMM, MoFo, Uber, Ottomotto, and 

Otto Trucking. Similarly, RFP 28 calls for communications between Stroz and a related 

entity of Uber, Apparate International.3

 RFP 11: this RFP calls for documents and communications regarding the joint defense 

agreement among Uber, Ottomotto, Levandowski, and Ron. 

 RFPs 16, 17, 20, 21: these RFPs call for all communications between Stroz, on the one 

hand, and Levandowski, Ron, or their respective attorneys, on the other hand. 

II. Legal Standard 

A party has standing to move to quash a non-party subpoena “when the party has a personal right 

or privilege in the information sought to be disclosed.” Knoll, Inc. v. Moderno, Inc., 2012 WL 

4466543, at *2 (N.D. Cal. Sept. 26, 2012) (citing 9A Charles A. Wright & Arthur R. Miller, Fed. 

Prac. & P. § 2459 (3d ed. 2008)). The attorney-client privilege, work product doctrine, and 

																																																								

1 While Uber is not moving to quash RFPs 9, 12, 30, and 31, which call for documents, data, and 

any other materials provided by Levandowski, Ron, and other diligenced employees to Stroz, 

these RFPs would call for production of documents that are protected by the diligenced 

employees’ personal attorney-client, marital, privacy, or other privileges and protections and 

would require production of personal documents that have no relevance to this suit. See Chevron 

Corp. v. Donziger, 2013 WL 4536808, at *11 (N.D. Cal. Aug. 22, 2013) (“[T]he Court has an 

independent obligation ‘to avoid imposing undue burden or expense on a person subject to the 

subpoena,’” and the party issuing the subpoena “must demonstrate the discovery is sought is 

relevant.”). 

2

 Uber moves to quash these RFPs to the extent they call for production of the letter agreements 

between Gardner and Stroz. Uber’s Opp. to Mot. to Compel re same (Dkt. 577) (incorporated 

herein by reference). 

3

 Uber is not moving to quash with respect to the remainder of RFP 28, which seeks 

communications between Stroz on the one hand and Dogwood Leasing or Pouch Holdings, on 

the other hand. 

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Defendants Uber Technologies Inc. and Ottomotto LLC’s Motion to Quash the Stroz Subpoena 

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common interest doctrine all constitute a “personal right or privilege” giving a party standing to 

object to a non-party subpoena. See In re Toyota Motor Corp. Unintended Acceleration Mktg., 

Sales Practices, & Prod. Liab. Litig., 2012 WL 9245988, at *2 (C.D. Cal. Jan. 25, 2012) 

(“[P]arties have standing to move to quash or modify third-party subpoenas where the materials 

sought implicate those parties’ right to privacy or their attorney-client or work-product 

privileges.”); Knoll, 2012 WL 4466543, at *2 (the “joint defense privilege” provided standing for 

the defendant to object to a subpoena issued to non-party Google Inc. to the extent the subpoena 

called for production of communications between the defendants and Google regarding a 

litigation); Fed. R. Civ. P. 45(d)(3)(iii) (“On timely motion, the court . . . must quash or modify a 

subpoena that . . . requires disclosure of privileged or other protected matter, if no exception or 

waiver applies.”). 

III. Argument 

A. The Due Diligence Report, Its Exhibits, and Documents and Communications 

Pertaining Thereto Shared Among the Joint Defense Parties Are Uber’s Protected 

Attorney-Work Product. 

1. The Joint Defense Parties Shared A Valid Common Legal Interest. 

Uber moves to quash the Stroz Subpoena because the RFPs challenged above call for production 

of Uber’s protected attorney work product. As explained in the Objections,4

 Uber shared a 

common legal interest with Ottomotto, Levandowski, and Ron as of February 24, 2016—after 

the parties executed the February 22, 2016, Term Sheet—even though that Term Sheet was not 

binding. Parties can share a common legal interest in preparing for anticipated litigation based 

on their expectation to do a transaction, even if they are not yet legally bound to do the 

transaction. In Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D. Cal. 

1987), the court held the parties shared a common legal interest at the time that “there was a real 

possibility” that one would purchase the other even though the deal did not subsequently 

transpire. Likewise, as of February 22, 2016, there was a “real possibility” Uber would acquire 

Ottomotto. See also Morvil Tech., LLC v. Ablation Frontiers, Inc., 2012 WL 760603, at *3 (S.D. 

Cal. Mar. 8, 2012) (common legal interest attaches as soon as two companies were 

“contemplating” the wholesale acquisition of one by the other; documents turned over during 

“negotiations” were protected); FTC v. Abbvie, Inc., 2015 WL 8623076, at *11 (E.D. Pa. Dec. 14, 

2015) (“The common interest doctrine applies even if there is no final agreement or if the parties 

do not ultimately unite in a common enterprise.”); Opp. to MTC (Dkt. 369) at 13-17 (citing 

cases). And the uncontroverted facts show that Uber, Ottomotto, Levandowski, and Ron knew 

they faced litigation risk from Waymo well prior to the signing of the Put Call Agreement on 

April 11, 2016; indeed, they faced that risk irrespective of whether the deal closed. Suhr Decl. 

(Dkt. 378) ¶ 6. 

Next, accepting that the joint defense parties conducted the diligence for the purposes of 

determining whether to close the transaction and the metes and bounds of indemnity for 

Levandowski and Ron (an indemnity agreed to precisely because the parties contemplated 

																																																								

4 Uber incorporates by reference all arguments made and cases cited in its Objections.

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Defendants Uber Technologies Inc. and Ottomotto LLC’s Motion to Quash the Stroz Subpoena 

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litigation by Waymo), Uber, Ottomotto, Levandowski, and Ron also simultaneously shared a 

common legal interest in defending possible litigation brought by Google. The documents called 

for in the Stroz Subpoena are thus dual purpose documents. The Ninth Circuit has stated that a 

dual purpose document is protected work product if “it can fairly be said that the document was 

created because of anticipated litigation, and would not have been created in substantially similar 

form but for the prospect of that litigation.” In re Grand Jury Subpoena (Mark Torf/Torf Envtl. 

Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004). It would be erroneous to consider only “one motive 

that contributed to a document’s preparation.” Id. Here, the real risk of litigation, irrespective of 

whether the deal closed, was a “because of” reason for the Stroz investigation and was why the 

Report and Exhibits were created. See Suhr Decl. ¶ 10 (“Uber took the additional, unique step of 

authorizing the Stroz investigation, and would not have done so absent the litigation risk.”). 

Even if there was no common legal interest when the Term Sheet was signed, there was 

undoubtedly one by April 11, 2016 when the parties executed the Put Call Agreement, as the 

MTC Order acknowledges. MTC Order at 17 n.2 (after signing Put Call Agreement, “Uber and 

Otto, and perhaps even Levandowski and Ron, arguably shared a common legal interest.”). And 

although the Stroz investigation began before April 11, 2016, it continued well beyond it. 

Because many responsive documents were not disclosed among the joint defense parties until 

after Uber was obligated to move forward with the acquisition, documents responsive to the 

Stroz Subpoena dated on or after April 11, 2016, which includes the Due Diligence Report and 

Exhibits, are protected attorney work product. 

2. Even If There Was No Common Legal Interest, There Was No Disclosure To 

Adversaries. 

Even if the Court finds that the common legal interest shared by Uber, Ottomotto, Levandowski, 

and Ron does not protect against disclosure of documents responsive to the Stroz Subpoena, they 

remain protected attorney work product because such documents were not disclosed to an 

adversary. Waiver of work product occurs only “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.” Ellis v. J.P. Morgan Chase & Co., 2014 WL 1510884, at *5 (N.D. Cal. Apr. 1, 

2014) (emphasis added) (citing Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. 

Cal. 2007)). Because “[t]he policy underlying work-product protection is to promote the 

adversary system by safeguarding the fruits” of an attorney’s preparations for litigation, waiver 

of attorney work product requires “an act inconsistent with the adversary system.” United States 

v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980) (emphasis added). 

Uber, Ottomotto, Levandowski, and Ron were not “adversaries” within the meaning of this rule 

at the time that they began the diligence process, and certainly were not adversaries within the 

meaning of this rule as of April 11, 2016, when Uber was obligated to move forward with the 

acquisition. That is because disclosure of confidential information to another party in a business 

transaction is not “an act inconsistent with the adversary system,” and case law makes clear that 

an “adversary” for purposes of the work product waiver analysis is an adversary in litigation or 

potential litigation, not parties on either side of an acquisition. See Nidec Corp., 249 F.R.D. at 

578 (noting that having different interests with respect to the purchase and sale of the majority 

interest in the company did not make the company and the prospective buyers adversaries for 

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purposes of work product analysis); United States v. Anthem, Inc., 2016 WL 8461264, at *8 

(D.D.C. Oct. 10, 2016) (holding that two parties to a potential merger cannot have been 

adversaries when they exchanged documents prepared in anticipation of litigation to enjoin the 

merger); United States v. Deloitte LLP, 610 F.3d 129, 140 (D.C. Cir. 2010) (rejecting argument 

that independent auditor was a potential adversary to the defendant because it was not “the sort 

of litigation adversary contemplated by the waiver standard”); Merrill Lynch & Co., Inc. v. 

Allegheny Energy, Inc., 229 F.R.D. 441, 447–49 (S.D.N.Y. 2004) (holding that “an auditor’s 

need to scrutinize and investigate a corporation’s records and book-keeping practices simply is 

not the equivalent of an adversarial relationship contemplated by the work product doctrine”). 

 

United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003), does not dictate a different result. 

In Bergonzi, the court held that a company that had disclosed to the government the results of its 

internal investigation into security fraud had waived work-product privilege because the 

government, which was investigating the company and recommended that charges be filed 

against the company, was the company’s adversary. Uber and Ottomotto were not potential 

litigation adversaries as a result of the Stroz investigation; indeed, the opposite was true. 

B. The Due Diligence Report and Documents and Communications Pertaining Thereto 

Shared Among the Joint Defense Parties Are Uber’s Protected Attorney-Client 

Privilege. 

The Due Diligence Report and documents responsive to RFPs 6-8 are protected by Uber’s 

attorney-client privilege. OMM and MoFo jointly engaged Stroz to facilitate the provision of 

legal advice to their clients regarding potential litigation by Google to their respective clients. 

The Due Diligence Report reflects information provided in confidence to an agent of OMM and 

MoFo, at the direction of OMM and MoFo, for the purpose of obtaining legal advice from OMM 

and MoFo. Tate Decl. ¶ 9; Friedberg Decl. ¶ 3; Bentley Decl. ¶ 11; Engagement Ltr. (Dkt. 370-

3). That is sufficient to establish the attorney-client privilege. See, e.g., U.S. v. Christensen, 828 

F.3d 763, 802 (9th Cir. 2016). Nor was the attorney-client privilege waived when the Report 

was shared with Levandowski, Ottomotto, and Ron because, at the time the Report was disclosed 

in August 2016, those parties had a common legal interest. Supra at III.A. 

 

Documents responsive to RFP 29 (invoices) are also protected attorney-client privilege because 

they “reveal the motive of [Uber] in seeking representation, litigation strategy, or the specific 

nature of the services provided.” Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th 

Cir. 1992). Uber was the sole recipient of invoices. Engagement Ltr. (Dkt. 370-3) at 2 (“The 

charges will be billed 100% to Uber. Stroz Friedberg will send invoices directly to Uber with a 

copy to [MoFo].”). 

Documents responsive to RFPs 13, 14, 15, 18, and 19 (communications between Stroz, on the 

one hand, and, on the other hand, MoFo, OMM, Uber, or Ottomotto) are, irrespective of whether 

there was a common legal interest among Uber, Ottomotto, Levandowski and Ron, 

independently protected by the attorney-client privilege. Miller v. City of Los Angeles, 2015 WL 

12781181, at *3 (C.D. Cal. May 15, 2015) (“Reddock–Wright was the City’s agent, and 

therefore her communications with City attorneys concerning her internal investigation are 

privileged.”); McCaugherty v. Siffermann, 132 F.R.D. 234, 239 (N.D. Cal. 1990) 

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(communications between a company’s outside investigators and its counsel were privileged 

because both the investigators were acting as the company’s agents). 

C. The Subpoena Must Be Quashed To The Extent It Calls For Documents Not 

Disclosed Among Purported Adversaries And Any Documents Disclosed After April 

11, 2016. 

Additionally, Uber moves to quash for reasons based on the scope of the MTC Order. By its 

terms, the MTC Order extends only to: (1) the Report and its Exhibits; and (2) documents and 

communications pertaining to the Stroz investigation that were both (a) disclosed to Uber’s 

“adversaries,” i.e., Ottomotto, Levandowski, and Ron, and (b) disclosed prior to April 11, 2016. 

The MTC Order is premised upon the finding that Stroz was the agent of Uber and Ottomotto. 

MTC Order at 11; see also id. at 4, 7-8, 11, 13. Nevertheless, the MTC Order holds that Uber 

waived work-product protection over the Report and Exhibits because Uber lacked a common 

legal interest with Ottomotto, Levandowski, and Ron, MTC Order at 15-21, and that, as parties 

on either side of an acquisition, they were adversaries, id. at 21-22. 

Therefore, communications or documents pertaining to the Stroz investigation not disclosed to 

any adversary do not fall within the scope of the Order. These communications are: (1) 

communications between or among MoFo and its agent, Stroz; (2) communications between or 

among OMM and its agent, Stroz; (3) communications between or among OMM, as the attorney 

for Ottomotto, and Levandowski and/or Ron and/or their attorneys5; and (4) communications and 

documents solely internal to Stroz. 

Documents falling into categories 1 and 2 in the paragraph above are independently protected by 

the attorney-client privilege. See supra III.B. Similarly, documents that fall within categories 1, 

2, and 4 are independently protected by the work product doctrine. Robinson v. Cty. of San 

Joaquin, 2014 WL 5473049, at *2 (E.D. Cal. Oct. 28, 2014) (“Any internal investigation done by 

counsel or other agents of the corporation in anticipation of litigation will generally be covered 

by work product.”); Solis v. Seafood Peddler of San Rafael, Inc., 2012 WL 12547592, at *6 

(N.D. Cal. Oct. 16, 2012) (“As the Wage Hour investigators conducted their investigation on 

behalf of the Department of Labor in anticipation of litigation, their internal communications and 

case diaries are privileged work product.”). 

Second, under the Order’s reasoning, it is clear that Uber, Ottomotto, Levandowski, and Ron 

shared a common legal interest at least as of April 11, 2016, and therefore any responsive 

documents or communications shared after that date remain protected. Because, after April 11, 

“an acquisition obligation existed,” MTC Order at 15, otherwise privileged or work-product 

protected communications and documents shared among these once-adversaries remain protected 

by the common interest doctrine. 

																																																								

5

 The MTC Order suggests that Levandowski and Ottomotto shared a common legal interest. 

MTC Order at 4. Thus, communications among Ottomotto’s attorney’s agent, Stroz, and 

Levandowski and/or his attorney, John Gardner, and Ron and/or his attorney, Alisa Baker, 

remain protected under the common interest doctrine and the MTC Order’s reasoning. 

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Defendants Uber Technologies Inc. and Ottomotto LLC’s Motion to Quash the Stroz Subpoena 

Case No. C 17-00939 WHA 

IV. Conclusion 

For the foregoing reason, Uber requests that the Court quash RFPs 1-8, 11, 13-26, and 29 in the 

Stroz Subpoena. 

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