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CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO LEVANDOWSKI’S MOTION FOR MODIFICATION OF COURT’S MARCH 16 ORDER

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa J. Baily (Bar No. 237649)

 melissabaily@quinnemanuel.com

 John Neukom (Bar No. 275887)

 johnneukom@quinnemanuel.com

 Jordan Jaffe (Bar No. 254886)

 jordanjaffe@quinnemanuel.com

50 California Street, 22nd Floor

San Francisco, California 94111-4788

Telephone: (415) 875-6600

Facsimile: (415) 875-6700

Attorneys for WAYMO LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

vs.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

CASE NO. 3:17-cv-00939-WHA

PLAINTIFF WAYMO’S OPPOSITION TO 

NON-PARTY ANTHONY 

LEVANDOWSKI’S MOTION FOR 

MODIFICATION OF COURT’S ORDER 

DATED MARCH 16, 2017

Hearing:

Date: April 6, 2017

Time: 9:30 a.m.

Place: Courtroom 8, 19th Floor

Judge: The Honorable William Alsup

Case 3:17-cv-00939-WHA Document 159 Filed 04/05/17 Page 1 of 14
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-i- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO LEVANDOWSKI’S MOTION FOR MODIFICATION OF COURT’S MARCH 16 ORDER

TABLE OF CONTENTS

INTRODUCTION..............................................................................................................................1

ARGUMENT .....................................................................................................................................2

I. MR. LEVANDOWSKI’S PERSONAL PRIVILEGE AGAINST SELFINCRIMINATION IS IRRELEVANT TO UBER’S PRODUCTION OF 

DOCUMENTS OR INFORMATION ...................................................................................2

II. EVEN IF THE SELF-INCRIMINATION PRIVILEGE WERE RELEVANT AT

ALL, MR. LEVANDOWSKI HAS NOT SATISFIED THE REQUIREMENTS 

NECESSARY TO INVOKE IT HERE..................................................................................3

III. THE COMMON INTEREST DOCTRINE DOES NOT APPLY TO THE DUE 

DILIGENCE REPORT BECAUSE EITHER (I) THERE WAS NEVER ANY 

COMMON LEGAL INTEREST REGARDING THE 14,000+ WAYMO 

DOCUMENTS OR (II) COMMUNICATIONS MADE PURSUANT TO A 

COMMON LEGAL INTEREST WERE IN FURTHERANCE OF A CRIME --

PRODUCTION IS REQUIRED ............................................................................................5

IV. AN ADVERSE INFERENCE IS APPROPRIATE ...............................................................8

V. CONCLUSION ....................................................................................................................10

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TABLE OF AUTHORITIES

Page

Cases

Ajaxo Inc. v. ETrade Grp., Inc.,

135 Cal. App. 4th 21 (2005).........................................................................................................9

Braswell v. United States,

487 U.S. 99 (1988).......................................................................................................................3

Brinks, Inc. v. City of New York,

717 F.2d 700 (2d Cir. 1983).........................................................................................................9

Chrimar Systems Inc. v. Cisco Systems Inc.,

No. 13-cv-01300,_2016 WL 1595785, at *7 (N.D. Cal. Apr. 21, 2016) .....................................7

Couch v. United States,

409 U.S. 322 (1973).....................................................................................................................3

Elan Microelectronics Corp. v. Apple, Inc.,

No. 09-01531................................................................................................................................6

Fisher v. United States,

425 U.S. 391 (1976).............................................................................................................2, 4, 5

Go v. Rockefeller Univ.,

280 F.R.D. 165 (S.D.N.Y. 2012)..................................................................................................7

In re Grand Jury Proceedings,

87 F.3d 377 (9th Cir. 1996)..........................................................................................................7

Integrated Global Concepts Inc. v. j2 Global, Inc.,

No. 12-cv-03434-RMW, 2014 WL 232211 (N.D. Cal. Jan. 21, 2014)........................................6

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

No. C 09-02540 WHA, 2010 WL 143484, at *2 (N.D. Cal. Jan. 8, 2010)..................................5

United States v. Hubbell,

530 U.S. 27 (2000).......................................................................................................................4

LiButti v. United States,

107 F.3d 110 (2d Cir. 1997).........................................................................................................9

Nidec Corp. v. Victor Co.,

249 F.R.D. 575 (N.D. Cal. 2007).................................................................................................6

In re Pacific Pictures Corp.,

679 F.3d 1121 (9th Cir. 2012)......................................................................................................6

RAD Serv., Inc. v. Aetna Cas. & Sur. Co.,

808 F.2d 271 (3d Cir. 1986).........................................................................................................9

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In re Rivastigmine Patent Litig.,

No. 05 MD 1661 (HB/JCF), 2005 WL 2319005, at *4-*5 (S.D.N.Y. Sept. 22, 2005)................6

In re Syncor ERISA Litig.,

229 F.R.D. 636 (C.D. Cal. 2005) .................................................................................................4

Thought, Inc. v. Oracle Corp.,

No. 12-cv-05601, 2014 U.S. Dist. LEXIS 111642 (N.D. Cal. Aug. 11, 2014)............................6

United States v. Bright,

596 F.3d 683 (9th Cir. 2010)........................................................................................................4

United States v. Brown,

918 F.2d 82 (9th Cir. 1990)..........................................................................................................4

United States v. Edison, No. CR,

07-0074 WHA 2008 WL 170660 (N.D. Cal. Jan. 17, 2008) .......................................................7

United States v. Richey,

632 F. 3d 559 (9th Cir. 2011).......................................................................................................7

Statutes

Cal. Civ. Code 2310 ...........................................................................................................................9

Case 3:17-cv-00939-WHA Document 159 Filed 04/05/17 Page 4 of 14
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-1- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO LEVANDOWSKI’S MOTION FOR MODIFICATION OF COURT’S MARCH 16 ORDER

INTRODUCTION

Through Mr. Levandowski’s Motion For Modification Of Court’s Order Dated March 16, 

2017, the following facts have now come to light. Mr. Levandowski, Otto, Uber, their lawyers, and 

others entered into a purported Joint Defense Agreement in April 2016, before Uber acquired 

Otto. That Agreement expressly contemplated potential litigation regarding the yet-to-beconsummated acquisition -- i.e., Uber, Otto, Mr. Levandowski, and their lawyers anticipated that there 

would be a legal proceeding just like this one. Soon after the Agreement was executed, an 

unidentified third party prepared a due diligence report for Uber that references at least some of the 

confidential and trade secret material that Mr. Levandowski downloaded from Waymo prior to his 

resignation -- i.e., Uber was aware, prior to acquiring Otto, that Mr. Levandowski took documents 

from Waymo. And Mr. Levandowski is now seeking to obstruct discovery into, not only his own 

conduct, but also Uber’s, Otto’s and their counsels’ knowledge and conduct, by asserting that all 

members of the Joint Defense Agreement are prohibited from producing any evidence that Mr. 

Levandowski unilaterally determines might incriminate him.

Mr. Levandowski’s attempt to extend the Fifth Amendment privilege against selfincrimination is remarkable and -- if adopted -- would be unprecedented. Mr. Levandowski asks this 

Court to contravene established Supreme Court precedent by holding that a corporation can withhold 

information based on an individual’s Fifth Amendment right to avoid self-incrimination. He asks this 

Court to contravene established Supreme Court precedent by holding that the Fifth Amendment “act 

of production” doctrine extends to documents that the public (and thus the Government) already 

knows exist in a particular person’s possession or control. He asks this Court to absolve Otto and 

Uber of their obligations to produce relevant information because they agreed to try to use the 

privilege as a shield with respect to incriminating information. But nothing in Mr. Levandowski’s 

recounting of the existence of various disparate privileges -- the Fifth Amendment privilege, the 

attorney-client privilege, the joint defense privilege -- suggests that those privileges can be muddled 

together to provide a basis for the exceptional relief requested here.

Mr. Levandowski’s personal privilege against self-incrimination is simply not implicated by 

Uber’s production of a privilege log, by Uber’s production of the due diligence report, or by Uber’s 

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(or Otto’s) production of any other information or documents. And with respect to the attempt to use 

the common interest doctrine to extend the attorney-client privilege, Uber conceded that there is a 

conflict, not a common legal interest, between itself and Mr. Levandowski with respect to at least the 

due diligence report’s references to one or more of the 14,000+ confidential and trade secret 

documents that Mr. Levandowski took from Waymo. To the extent Uber and Mr. Levandowski are 

asserting otherwise -- i.e., that they actually did have a common legal interest with respect to the 

downloaded documents prior to the acquisition -- the crime-fraud exception to the attorney-client 

privilege applies.

No matter how one views the issue, Uber and Otto must produce all information that is 

relevant to the 14,000+ downloaded documents. No Fifth Amendment or joint defense privilege 

applies.

Furthermore, Mr. Levandowski’s formal but baseless assertion of his privilege against selfincrimination beyond what is allowed under Supreme Court precedent makes clear that an adverse 

inference will be appropriate when considering Waymo’s motion for a preliminary injunction. Mr. 

Levandowski’s assertion of his self-incrimination privilege will thwart Waymo’s ability to prosecute 

its civil claims against Uber and Otto in this forum. An adverse inference that Uber is knowingly 

using Waymo trade secrets in the development of its self-driving cars will be warranted.

ARGUMENT

I. MR. LEVANDOWSKI’S PERSONAL PRIVILEGE AGAINST SELFINCRIMINATION IS IRRELEVANT TO UBER’S PRODUCTION OF 

DOCUMENTS OR INFORMATION

Mr. Levandowski’s Motion is based on an erroneous premise -- namely, that Uber could 

somehow violate Mr. Levandowski’s Fifth Amendment privilege against self-incrimination. In 

reality, Mr. Levandowski’s right to avoid incriminating himself has nothing to do with Uber’s 

obligation to produce documents, a privilege log, or any other information that might incriminate Mr. 

Levandowski.

The Fifth Amendment right “protects a person only against being incriminated by his own

compelled testimonial communications.” Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis 

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added). As the Supreme Court has explained, “[t]he Constitution explicitly prohibits compelling an 

accused to bear witness ‘against himself’; it necessarily does not proscribe incriminating statements 

elicited from another . . . . It is extortion of information from the accused himself that offends our 

sense of justice.” Couch v. United States, 409 U.S. 322, 328 (1973) (emphasis added). Accordingly, 

the Fifth Amendment privilege is considered to be a “personal privilege”: “it adheres basically to the 

person, not to information that may incriminate him. . . .” Id.

Mr. Levandowski asks this Court to contravene this Supreme Court precedent. Mr. 

Levandowski repeatedly argues that “Uber received information protected from disclosure by the Fifth 

Amendment” and thus “cannot disclose it.” (E.g., Dkt. 147 at 5.) But information on its own is not

protected by the Fifth Amendment. Mr. Levandowski can assert his Fifth Amendment privilege to 

avoid providing information that tends to incriminate himself; Mr. Levandowski cannot assert his 

Fifth Amendment privilege to preclude others from providing evidence against him. 

Because Mr. Levandowski’s personal self-incrimination privilege does not, by definition, 

extend to Uber and because Uber, as a corporation, does not have its own Fifth Amendment privilege 

to assert, Braswell v. United States, 487 U.S. 99, 105 (1988) (“a corporation has no Fifth Amendment 

privilege”), the Fifth Amendment simply has no relevance to whether or not Uber should produce any 

particular documents or information in this case. Uber must produce the due diligence report, as well 

as any other relevant documents improperly being withheld pursuant to Mr. Levandowski’s assertion 

of the Fifth Amendment, or -- if there were a viable claim of attorney-client privilege (but see infra

Parts III, IV) -- Uber must log the report or other documents pursuant to this Court’s Supplemental 

Order To Setting Initial Case Management Conference In Civil Cases 16.1

II. EVEN IF THE SELF-INCRIMINATION PRIVILEGE WERE RELEVANT AT

ALL, MR. LEVANDOWSKI HAS NOT SATISFIED THE REQUIREMENTS 

NECESSARY TO INVOKE IT HERE

Even assuming, arguendo, that Mr. Levandowski’s personal self-incrimination privilege could 

somehow be relevant to the production of documents or information by Uber, Mr. Levandowski has 

not met his burden to show that his self-incrimination privilege is properly invoked with respect to 

 

1

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Uber’s due diligence report. See United States v. Brown, 918 F.2d 82, 84 (9th Cir. 1990). To be clear, 

Mr. Levandowski’s theft of 14,000+ confidential and trade secret documents from Waymo may well 

subject him to criminal liability. But Mr. Levandowski has not shown that the compelled production 

of the due diligence report specifically (or a privilege log describing the due diligence report) 

increases the risk of criminal liability.

To be sure, the compelled production of documents or a privilege log may be tantamount to 

incriminating testimony (such that the Fifth Amendment may properly be invoked) if the documents 

or log reveal “that the documents exist, are in [the witness’] possession or control, and are 

authentic.” (See Dkt. 147 at 3 (citing In re Syncor ERISA Litig., 229 F.R.D. 636, 649 (C.D. Cal. 

2005); id. at 7 (citing United States v. Hubbell, 530 U.S. 27, 32-36 (2000)).) But Mr. Levandowski 

and Uber have openly acknowledged each of these facts already. They have conceded the existence 

and authenticity of the due diligence report by, for example, acknowledging that “prior to the 

acquisition of Otto Trucking LLC and Ottomoto LLC, Uber Technologies, Inc. obtained a due 

diligence report prepared by a third party.” (Dkt. 147 at 12; see also id. at 3.) And Uber has conceded 

that a copy of that due diligence report is in its possession or control, stating that it intends to include 

the due diligence report on a privilege log. (Id. at 2 (noting the question of “precisely how detailed 

Uber’s counsel must be in listing on its privilege log the due diligence report prepared by a third 

party”).)

Where, as here, the potentially protectable facts of existence, possession or control, and 

authenticity are already known, the Fifth Amendment (assuming it applied) would not be implicated 

by compelled production, as it is a “foregone conclusion” that the Government could identify and 

subpoena the documents at issue. Fisher, 425 U.S. at 410 (where “[t]he existence and location of the 

papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the 

Government's information by conceding that he in fact has the papers [,] . . . enforcement of the 

summons” does not touch upon constitutional rights); United States v. Bright, 596 F.3d 683, 692 (9th 

Cir. 2010) (“For this foregone conclusion exception to apply, the government must establish its 

independent knowledge of three elements: the documents’ existence, the documents’ authenticity and 

respondent’s possession or control of the documents.”). The fact that the due diligence report itself 

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likely contains incriminating information -- i.e., that it references one or more of the 14,000+ 

downloaded documents -- is irrelevant to the analysis here: the Fifth Amendment does not protect the 

contents of pre-existing, voluntarily prepared documents, even if incriminating. Fisher, 425 U.S. at 

409-10 (“[T]he preparation of all of the papers sought in these cases was wholly voluntary, and they 

cannot be said to contain compelled testimonial evidence.”). 

In sum, even if Mr. Levandowski’s Fifth Amendment right was implicated by the production 

of evidence by Uber (which it is not), that right does not prevent the production of a due diligence 

report that the public already knows exists, that the public already knows Uber sought, and that the 

public already knows is in Uber’s possession or control. Uber must produce the report. If Uber 

believes there is a viable claim of an applicable privilege (but see infra Parts III, IV), it must describe 

the report in a privilege log pursuant to this Court’s Supplemental Order To Setting Initial Case 

Management Conference In Civil Cases 16.

III. THE COMMON INTEREST DOCTRINE DOES NOT APPLY TO THE DUE 

DILIGENCE REPORT BECAUSE EITHER (I) THERE WAS NEVER ANY 

COMMON LEGAL INTEREST REGARDING THE 14,000+ WAYMO

DOCUMENTS OR (II) COMMUNICATIONS MADE PURSUANT TO A 

COMMON LEGAL INTEREST WERE IN FURTHERANCE OF A CRIME --

PRODUCTION IS REQUIRED

Because Mr. Levandowski’s Fifth Amendment right has no bearing on whether Uber should 

produce the due diligence report (or any other documents or information), the real issue here is Mr. 

Levandowski’s claim that Uber should withhold the due diligence report based on Mr. Levandowski’s 

assertion of the common interest doctrine. Of course, Uber has not yet provided all of the information 

-- including the identity of the third-party author of the due diligence report -- that is necessary to fully 

evaluate a claim of privilege. Even so, with just the information that Uber has provided to date, it is 

already abundantly clear that either (i) the due diligence report is not subject to the common interest 

doctrine, or (ii) the crime-fraud exception would defeat the underlying privilege claim. In either 

instance, Uber should be required to produce the due diligence report.

The party claiming a joint defense privilege has the burden of proving the privilege 

exists. Holmes v. Collection Bureau of Am., Ltd., No. C 09-02540 WHA, 2010 WL 143484, at *2 

(N.D. Cal. Jan. 8, 2010) (“The burden of establishing that the attorney-client privilege–and by 

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extension the joint defense [or common interest] exception–applies is on the party asserting the 

privilege.”). In order for the joint defense privilege to attach, “the parties must make the 

communication in pursuit of a joint strategy in accordance with some form of agreement.” In re 

Pacific Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012); see also In re Rivastigmine Patent Litig., 

No. 05 MD 1661 (HB/JCF), 2005 WL 2319005, at *4-*5 (S.D.N.Y. Sept. 22, 2005) (finding “any 

privilege that might otherwise attach has been waived” in part because the party asserting privilege 

“failed to satisfy the second prong of the test for application of the common interest doctrine: it has 

not demonstrated that, as a practical matter, it ever pursued a common legal strategy”). A shared 

commercial interest is insufficient to support the doctrine, Thought, Inc. v. Oracle Corp., No. 12-cv05601, 2014 U.S. Dist. LEXIS 111642, at *11 (N.D. Cal. Aug. 11, 2014), and the application of the 

doctrine in the pre-acquisition due diligence context is nowhere near automatic, id.; Nidec Corp. v. 

Victor Co., 249 F.R.D. 575, 579-80 (N.D. Cal. 2007). Yet Mr. Levandowski has not even attempted 

to meet his burden to show that he and Uber actually pursued any common legal strategy or that the 

due diligence report (or any other information being withheld on similar grounds) advanced a 

common legal strategy.

Uber, however, has made clear that there is not a common legal interest with respect to Mr. 

Levandowski’s taking of 14,000+ documents from Waymo. Uber has stated that it “is differently 

situated than Mr. Levandowski” and that Morrison & Foerster “obviously ha[s] a conflict” 

representing both Uber and Mr. Levandowski with respect to issues related to those 

documents. (3/29/17 Hr’g Tr. at 17:15-20, 35:15-22.) Given that, it is difficult to see what common 

legal interest it shared with Mr. Levandowski with respect to the 14,000+ Waymo documents in the 

context of its 2016 due diligence (which was presumably conducted to determine whether and on what 

terms it should proceed with a possible acquisition of Otto). If there was no common legal strategy 

with respect to the taking of the 14,000+ Waymo documents at the time of the due diligence report, 

then the common interest doctrine does not apply to that subject matter, and Uber should produce the 

report. See, e.g., Thought, No. 12-cv-05601, 2014 U.S. Dist. LEXIS at *10-11; Nidec, 249 F.R.D. at 

579-80; Integrated Global Concepts Inc. v. j2 Global, Inc., No. 12–cv–03434–RMW, 2014 WL 

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232211, at *2 (N.D. Cal. Jan. 21, 2014); Elan Microelectronics Corp. v. Apple, Inc., No. 09–01531 

RS, 2011 WL 3443923, at *2 (N.D. Cal. Aug. 8, 2011).

If, however, Uber and Mr. Levandowski did have a common legal strategy with respect to the 

taking of 14,000+ documents from Waymo, then the privilege created by the Joint Defense Agreement 

among Uber, Mr. Levandowski, Otto, and others should be defeated by the crime-fraud 

exception.2 The crime-fraud exception applies where (1) “the communications were in furtherance of 

an intended or present illegality” and (2) “there is some relationship between the communications and 

the illegality.” United States v. Edison, No. CR 07-0074 WHA, 2008 WL 170660, at *3 (N.D. Cal. 

Jan. 17, 2008) (quoting In re Grand Jury Proceedings, 87 F.3d 377, 380 (9th Cir. 1996)). The crimefraud exception “applies with equal force” to attorney-client communications and work product. Id. at 

*3, *5. 

Uber concedes that the due diligence report is relevant to Mr. Levandowski’s taking of 

14,000+ confidential and trade secret Waymo documents, as Uber has said that it plans to list the 

report on a privilege log in response to this Court’s Order to produce any documents that refer to 

any part of the material downloaded by Mr. Levandowski. (Dkt. 61 ¶ 4; 3/29/17 Hr’g Tr. at 

12:22-13:1.) And the attempt by Mr. Levandowski to extend his self-incrimination privilege to 

preclude the production of even the most basic information about the due diligence report 

confirms the criminal nature of Mr. Levandowski’s conduct.3 Thus, if Uber asserts that there was 

 

2

 Any such privilege would also be waived in light of the fact that a third party authored the due 

diligence report. (Dkt. 147 at 3.) Disclosure of otherwise privileged communications to third parties 

waives the privilege. United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). Neither Uber nor 

Mr. Levandowski should be permitted to avoid waiver by refusing to disclose the identity of the thirdparty author of the due diligence agreement; if the third party is not identified, the burden of showing 

that a privilege exists has simply not been met. E.g., Chrimar Systems Inc. v. Cisco Systems Inc., No. 

13-cv-01300, 2016 WL 1595785, at *7 (N.D. Cal. Apr. 21, 2016) (finding that plaintiffs did not meet 

burden of showing privileged status of communications where emails included unknown senders and 

recipients); Go v. Rockefeller Univ., 280 F.R.D. 165, 175 (S.D.N.Y. 2012) (finding privilege log 

insufficient to the extent it failed to identity the identities, titles and roles of the authors, recipients and 

those copied, because “[w]ithout this information, the assertions of privilege are difficult to assess in 

many instances”). 

3

 Mr. Levandowski explicitly conceded that “in the civil context,” the self-incrimination privilege 

cannot be invoked unless he “reasonably believes that his disclosures could be used in a criminal 

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a common legal interest between it and Mr. Levandowski regarding the 14,000+ Waymo 

documents at the time the due diligence report was prepared, such common legal interest was most 

likely created specifically to avoid disclosure of a crime in the context of legal proceedings like 

this one.4

In sum, either there was no common legal interest between Uber and Mr. Levandowski 

regarding the 14,000+ Waymo files in the time period leading up to Uber’s acquisition of Otto or 

the crime-fraud exception most likely applies to any joint defense privilege being asserted with 

respect to those files. In either scenario, the due diligence report and all other documents in 

Uber’s or Otto’s possession or control that relate to the 14,000+ Waymo files should be 

produced.5

IV. AN ADVERSE INFERENCE IS APPROPRIATE

Mr. Levandowski has now formally invoked his self-incrimination privilege in the most 

expansive way possible6-- by attempting (improperly) to prevent Uber from producing incriminating 

evidence against him. Mr. Levandowski -- with no objection from Uber -- is essentially asking that 

Waymo be precluded from learning anything about, not only Mr. Levandowski’s theft of Waymo’s 

confidential and trade secret information, but also Uber’s knowledge and conduct in light of that 

 

prosecution or could lead to other evidence that could be used in that manner.” (Dkt. 147 at 6 

(internal quotations and citations omitted).) 

4

 If Mr. Levandowski has some other position, he has waived it for failure to make any showing 

regarding the applicability of the common interest doctrine in his Motion. If Uber has some other 

position, it must say so and provide all the details necessary to test that position in discovery.

5

 Morrison & Foerster also has a separate ethical obligation to turn over to the Court the due 

diligence report, any Waymo confidential documents and trade secrets, and any other physical 

evidence of a crime. Formal Opinion No. 1986-89, State Bar of Cal., Comm. on Prof. Resp. & 

Conduct, available at http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=

8uqfb5Jq3K8%3D&tabid=841 (“Attorney’s legal and ethical obligations will require the delivery to 

the court or to law enforcement physical evidence of a crime which comes into Attorney's possession 

and could require the Attorney to testify about the circumstances by which Attorney obtained such 

physical evidence.”) Morrison & Foerster has likely had access to the due diligence report and any 

Waymo documents cited therein since at least the time that its attorney signed the joint defense 

agreement on behalf of Uber. 

6

 Mr. Levandowski’s stated intent to brief privilege issues serially (Dkt. 147 at 5 n. 1) should not 

be permitted to derail the schedule already set for preliminary injunction proceedings or the expedited 

discovery to follow in connection with the October trial date.

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theft. Under such circumstances, the record is now even more clear that an adverse inference is 

appropriate.

Waymo has already demonstrated that Mr. Levandowski downloaded 14,000+ of its 

confidential and trade secret documents upon his resignation. (Dkt. 25-3 at 7-9, 11-12; see also Dkt. 

25-31 (Declaration of Gary Brown) ¶¶ 12-23.) And Waymo has already shown that trade secrets 

found in the downloaded documents are now being used in Uber’s custom LiDAR system. (Dkt. 25-3 

at 10-16.)

Despite this, Mr. Levandowski remains an Uber executive in charge of Uber’s self-driving car 

program. And while Uber’s counsel has repeatedly refused to return the 14,000+ documents taken 

from Waymo by Mr. Levandowski, Uber’s counsel continues to proffer information obtained from 

Mr. Levandowski when that information might advance Uber’s and Mr. Levandowski’s collective 

interests. Mr. Levandowski’s assertion of his Fifth Amendment right and his “joint defense” privilege 

with Uber, along with Uber’s failure to meet its own discovery obligations in reliance on Mr. 

Levandowski’s positions, only makes it increasingly clear that Uber was aware of Mr. Levandowski’s 

illegal conduct even before Uber acquired Otto and potentially that Uber worked in concert with Otto 

and Mr. Levandowski to hide that conduct. In any event, there is no question that Uber has now 

ratified Mr. Levandowski’s behavior and is liable for it. Cal. Civ. Code 2310; Ajaxo Inc. v. E*Trade 

Grp., Inc., 135 Cal. App. 4th 21, 67-68 (2005) (conduct of an employee who misappropriated trade 

secrets was ratified where company’s “top management had the opportunity to know of and either 

ignore or actually approve of” the theft).

“Nothing forbids imputing to a corporation the silence of its personnel.” RAD Serv., Inc. v. 

Aetna Cas. & Sur. Co., 808 F.2d 271, 275 (3d Cir. 1986); see also Brinks, Inc. v. City of New York, 

717 F.2d 700, 709–10 (2d Cir. 1983) (drawing adverse inferences against a corporation based on 

assertion of Fifth Amendment privilege by non-party employees and former employees). The 

imputation is especially appropriate here, where Mr. Levandowski remains a high-level executive at 

Uber, Mr. Levandowski continues to cooperate with Uber when it suits their collective interests, Uber 

and Mr. Levandowski are both interested in the defense of this litigation, and Mr. Levandowski’s 

conduct is relevant to several of Waymo’s claims against Defendants. See generally LiButti v. United 

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States, 107 F.3d 110, 123–24 (2d Cir. 1997) (listing non-exclusive factors often considered in 

determining whether a non-party witness’ invocation of his Fifth Amendment right is admissible as an 

adverse inference against a party in a civil case).

V. CONCLUSION

Mr. Levandowski cannot assert his personal Fifth Amendment privilege against selfincrimination with respect to any discovery compelled from Uber. Mr. Levandowski cannot rely on a 

joint defense privilege with Uber if no common legal interest exists between Mr. Levandowski and 

Uber with respect to the 14,000+ documents taken from Waymo. And Mr. Levandowski cannot rely 

on a joint defense agreement with Uber entered into for the purpose of shielding incriminating 

evidence from discovery. Accordingly, there is no privilege on which Mr. Levandowski or Uber can 

rely to avoid production of the due diligence report -- or any other information in Uber’s possession, 

custody, or control that relates to the 14,000+ downloaded Waymo documents. 

With respect to Mr. Levandowski’s formal, broad invocation of his Fifth Amendment 

privilege, the record only continues to become more clear that an adverse inference will be appropriate 

in the context of Waymo’s preliminary injunction motion and at trial.

DATED: April 5, 2017 QUINN EMANUEL URQUHART & SULLIVAN,

LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

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