1























































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

WAYMO’S RESP. TO UBER’S REDACTED PRIVILEGE LOG

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 RESPONSE TO 

UBER’S REDACTED PRIVILEGE LOG

Case 3:17-cv-00939-WHA Document 170 Filed 04/06/17 Page 1 of 5
1























































-1- CASE NO. 3:17-cv-00939-WHA

WAYMO’S RESP. TO UBER’S REDACTED PRIVILEGE LOG

I. NO FIFTH AMENDMENT RIGHT IS IMPLICATED HERE

Mr. Levandowski cannot obstruct the production by others of information that may incriminate 

him. Couch v. United States, 409 U.S. 322, 328 (1973). Rather, Mr. Levandowski’s privilege against 

self-incrimination is a personal privilege; he is free to assert it when histestimony or the production of 

his documents is requested. Waymo is not aware of any case holding that an individual claiming the 

personal privilege against self-incrimination can redact someone else’s privilege log or otherwise 

interfere with someone else’s document production. Mr. Levandowski has not cited any such case. 

Mr. Levandowski’s privilege against self-incrimination provides no justification for redacting Uber’s

log of documents in Uber’s possession, thus concealing information regarding the assertion of other 

privileges.

Although this should end the inquiry, it is also notable that the un-redacted portions of the 

privilege log provided to Waymo confirm both the existence of the due diligence report/exhibits and 

the source of those documents as “Uber In-House Counsel.” So, contrary to Mr. Levandowski’s 

arguments, production of the un-redacted log would not provide any additional “links in the chain” 

leading to incriminating evidence. (Hrg. Tr. 24:13-24.) The supposed “links in the chain” are known 

already. The documents on the log are held by Uber, its counsel, and (unless they were destroyed) by 

every one of the recipients listed on the log. The government can subpoena those documents from any 

of these sources at any time. And once it does, it will also have the very information that Mr. 

Levandowski seeks to redact – the identity of the author of the report, the subject matter of the report, 

and the content of the report’s exhibits – and will be able to subpoena the unidentified third-party for 

additional evidence. In sum, as has been clear from the very first time the “due diligence report” was 

first mentioned at the March 29 hearing, production of the un-redacted privilege log does not affect 

the likelihood that Mr. Levandowski will be criminally prosecuted or point to any otherwise 

unknowable incriminating evidence. See Moore v. Gilead Sciences, Inc., No. C 07–03850 SI, 2011 

WL 5572975, at *7-*8 (N.D. Cal. Nov. 16, 2011) (right to refuse production of documents under the 

Fifth Amendment only exists with respect to unknown documents); see also Fifth Third Bank v. 

Racine Motorsports, Ltd., No. 09–CV–05198, 2010 WL 2178781, at *3 (N.D. Ill. May 28, 2010). 

This confirms that the conclusion above—that Mr. Levandowski’s personal privilege against selfCase 3:17-cv-00939-WHA Document 170 Filed 04/06/17 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-2- CASE NO. 3:17-cv-00939-WHA

WAYMO’S RESP. TO UBER’S REDACTED PRIVILEGE LOG

incrimination cannot be asserted here—is appropriate.

II. UBER HAS FAILED TO MEET ITS BURDEN TO DEMONSTRATE THAT ANY 

COMMON INTEREST PRIVILEGE APPLIES

Not only is it clear that there is no relevant Fifth Amendment privilege here, but the redacted 

log also shows that there is no basis for the common interest privilege asserted with respect to every 

single entry in the log. The only supposed basis for that privilege is indicated in footnote 1, which

cites to the joint defense agreement referenced at this morning’s hearing. But the mere citation to a 

JDA is insufficient to establish a common interest privilege. (If it was, than the mere entry into such 

an agreement could protect nearly anything.) Instead, the proponent of the privilege must also show

that the parties actually pursued a common legal strategy and that the logged communications were 

made in furtherance of that strategy. E.g., Holmes v. Collection Bureau of America, Ltd., No. C 09-

02540 WHA, 2010 WL 143484, at *2 (N.D. Cal. Jan. 8, 2010); In re Rivastigmine Patent Litig., No. 

05 MD 1661 (HB/JCF), 2005 WL 2319005, at *4-*5 (S.D.N.Y. Sept. 22, 2005). Mr. Levandowski 

and Uber were each given an opportunity to identify the common legal strategy that existed 

purportedly pursued before the acquisition – that is, while Uber was supposedly conducting due 

diligence on Otto. (Hrg. Tr. 7:21-8:3, 27:5-6.) No explanation was provided, and the log is silent as 

on the subject. Accordingly, any common interest privilege that might have existed should be deemed 

waived. (Suppl. Order to Order Setting CMC ¶ 16.) 

Despite the silence on the issue, however, even in redacted form, the log plainly suggests that 

Uber, Otto, and Mr. Levandowski entered into their purported JDA for the improper purpose of 

attempting to shield unlawful conduct by one or more them. This inference flows easily from Mr. 

Levandowski’s attempt to broadly assert the Fifth Amendment to preclude Uber’s disclosure of any

description of 36 documents on the log. Thus, if the Court does not find that any common interest 

privilege was waived (or never existed), it should find that the crime-fraud exception applies. 

III. DEFENDANTS’ CONTINUED PATTERN OF OBFUSCATION SHOULD RESULT 

IN THE WAIVER OF ANY OTHERWISE APPLICABLE PRIVILEGE

The redacted log also further shows the continued obfuscation of facts by Uber. Uber asserts 

the work product privilege for 28 documents, each described as “attachment to Investigation 

Case 3:17-cv-00939-WHA Document 170 Filed 04/06/17 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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

WAYMO’S RESP. TO UBER’S REDACTED PRIVILEGE LOG

Report.” Uber has – without explanation or justification – refused to identify even the author of those 

attachments, incredibly claiming that even the identification of the author is somehow “work product.” 

(note**.) Nor has Uber logged the date of any of those attachments, contending that the date is 

irrelevant because the basis for the work product privilege is the fact of attachment to the report rather 

than the content of the document itself. But Uber cannot cloak non-privileged documents in a 

privilege merely by attaching them to something else. O’Connor v. Boeing N. Am., Inc., 185 F.R.D. 

272, 280 (C.D. Cal. 1999). That is, attaching Waymo’s confidential documents to a due diligence 

report, for example, would not convert Waymo’s documents into Uber’s work product. Similarly, 

forensic data does not become privileged merely because a choice is made to analyze that data in a 

due diligence report (Nos. 7-10), yet no forensic data was produced by Uber in response to ¶ 4 of the 

Court’s March 16 Order. Uber also skimps on logging the recipients of documents, identifying entire 

law firms rather than specific persons receiving each purported privileged or protected 

communication. And Uber fails to provide any assurance that the third-party author of the due 

diligence report has not waived any otherwise applicable privilege. 

All told, the log raises more questions about the privileges asserted than it answers. Uber has 

had a full and fair opportunity – both in its log and at this morning’s hearing – to establish that 

documents have been properly withheld. It has failed to provide the information required to make 

such a showing, and the Court should order the production of the due diligence report and its exhibits.

Finally, the Court may order production of work product if there is a substantial need for the 

information and an inability to obtain the substantial equivalent without undue hardship. Fed. R. Civ. 

P. 26(b)(3)(A). Mr. Levandowski’s broad assertion of his Fifth Amendment privilege creates a 

substantial and compelling need for production, as the documents withheld by Uber may be the only 

source of certain evidence.1 The logged documents should be produced on this basis as well.

 

1

 In re John Doe Corp., 675 F.2d 482, 492 & n.10 (2d Cir. 1982) (substantial need where “potential 

witnesses have invoked the privilege against self-incrimination”); In re Vitamins Antitrust Litig., No. 

99-197, 2003 WL 1868908, at *1 (DDC Jan. 24, 2003) (substantial need where “witnesses whose 

testimony was recorded in the materials have now asserted their Fifth Amendment rights”); In re 

Crazy Eddie Sec. Litig., No. 87-cv-33, 1991 WL 17287 (EDNY Jan. 28, 1991).

Case 3:17-cv-00939-WHA Document 170 Filed 04/06/17 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-4- CASE NO. 3:17-cv-00939-WHA

WAYMO’S RESP. TO UBER’S REDACTED PRIVILEGE LOG

DATED: April 6, 2017 QUINN EMANUEL URQUHART & SULLIVAN,

LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

Case 3:17-cv-00939-WHA Document 170 Filed 04/06/17 Page 5 of 5