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

WAYMO MOTION TO QUASH KEKER SUBPOENA

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa 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

WAYMO LLC’S NOTICE OF MOTION 

AND MOTION TO QUASH SUBPOENA; 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT THEREOF

Date: August 28, 2017

Time: 1:30 pm

Dept.: Courtroom F, 15th Floor

Judge: Hon. Jacqueline Scott Corley

Date Filed: February 23, 2017

Trial Date: October 2, 2017

Case 3:17-cv-00939-WHA Document 1347 Filed 08/24/17 Page 1 of 5
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Case No. 3:17-cv-00939-WHA

WAYMO MOTION TO QUASH KEKER SUBPOENA

NOTICE OF MOTION

PLEASE TAKE NOTICE that Waymo LLC will and hereby does move the Court for an order 

quashing the subpoena issued by Defendant Otto Trucking LLC (“OT”) to Keker Van Nest & Peters 

(“KVP”) (the “Keker Subpoena,” attached as Ex. B to KVP’s contemporaneously filed motion to quash) to 

the extent it calls for the production of documents and communications protected by Waymo’s attorneyclient privilege and/or work product.1

 This motion is made under Rules 45 of the Federal Rules of Civil 

Procedure on the grounds that the subpoena would invade the protections of the attorney-client 

privilege and/or work product, and that it goes far beyond this Court’s order regarding Waymo’s 

waiver of privilege.

Waymo participated in a conference call with counsel for OT and with John Cooper, the 

assigned Special Master in the above-captioned matter, regarding this subpoena. The Special Master 

approved the filing of this motion and set a briefing schedule with this brief due August 24, 2017. 

OT’s opposition is due at noon on August 27, 2017. 

This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of 

Points and Authorities, and all papers and records on file with the Clerk or which may be submitted 

prior to or at the time of the hearing on the Motion, and any further evidence which may be offered at 

the hearing. Waymo hereby requests that a hearing on this Motion be scheduled at the Court’s 

convenience, and on an expedited basis to accommodate the discovery deadlines in the litigation.

Respectfully submitted,

DATED: August 24, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

 

1 OT also issued a subpoena to Tom Gorman, an individual attorney at KVP (the “Gorman 

Subpoena”), but never served it. Like KVP, Waymo reserves its rights to file a motion to quash 

Mr. Gorman’s subpoena if OT ever tries to seek his individual deposition. 

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

WAYMO MOTION TO QUASH KEKER SUBPOENA

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

On August 11, 2017, OT moved to compel discovery from Waymo regarding its forensic 

investigation of Messrs. Levandowski, Raduta, and Kshirsagar. Dkt. 1163. On August 15, Your 

Honor held: “While the waiver of work product does not necessarily waive attorney-client privileged 

communications, here the waiver of work product over the investigation did waive the attorney-client 

privilege as to counsel communications with Mr. Brown and anyone else involved in the 

investigations at issue as in fairness such communications should be disclosed.” Dkt. 1272 at 2.

On August 20, OT provided notice of the Keker Subpoena. The Keker Subpoena makes four 

document requests:

1. All documents relating to any investigation of former Waymo employees, 

including, but not limited to Anthony Levandowski, Radu Raduta, and Sameer 

Kshirsagar.

2. All communications between KEKER, including but not limited to Tom Gorman 

and Rachel Meny, and ALPHABET regarding the SVN logs pertaining to any 

computers used by Anthony Levandowski, Radu Raduta, and Sameer Kshirsagar.

3. All communication between KEKER, including but not limited to Tom Gorman 

and Rachel Meny, and ALPHABET regarding any computer or log data related to 

computers used by Anthony Levandowski, Radu Raduta, and Sameer Kshirsagar.

4. All documents referring or relating to any conclusion by KEKER that Anthony 

Levandowski downloaded 14,000 files.

Ex. 1 at 7. It makes almost identical requests for testimony on these topics. Id. at 6.

II. ARGUMENT

OT’s subpoena improperly attempts to expand Your Honor’s order regarding the waiver of 

attorney-client privilege to cover privileged documents and communications and core work product of 

KVN that have not been and should not be deemed waived. The order recognized that a waiver of 

work-product privilege does not necessarily waive attorney-client privilege, (Dkt. 1272 at 2), but held 

that in this instance, as a matter of fairness, Waymo’s waiver of work-product privilege required 

disclosure of certain documents and communications that would otherwise be protected by attorneyclient privilege. The order did not require any broader waiver of work product than that which

Waymo has already acknowledged.

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

WAYMO MOTION TO QUASH KEKER SUBPOENA

The subpoenas go far beyond this limited ruling. The first document and testimony request 

seeks information about any investigation of any former Waymo employees and the fourth document 

and testimony request seeks all documents “referencing or relating to” any conclusion that Anthony 

Levandowski downloaded 14,000 files, regardless of the other topics that may be covered in such 

communications. Ex. 1 at 6-7. However, this Court’s order was limited to specific communications 

about one specific investigation of three former Waymo employees—Levandowski, Raduta, and 

Kshirsagar—because Waymo’s waiver of work-product privilege concerned only that investigation. 

Dkt. 1272 at 2 (“Otto Trucking has not made any showing as to why communications regarding 

investigations of other employees have been waived and thus the motion is denied to the extent it 

seeks such relief.”). Indeed, OT’s motion to compel also was limited solely to this specific 

investigation. Dkt. 1163 at 2. There is no basis in law or fairness to expand a limited waiver of workproduct and attorney-client privilege for one investigation into a waiver of work product and attorneyclient privilege for any investigation.

Furthermore, the second and third document and testimony requests seek “[a]ll 

communications between KEKER, including but not limited to Tom Gorman and Rachel Meny, and 

ALPHABET” on “any computer or log data,” and SVN logs, of Levandowski, Raduta, and 

Kshirsagar. Ex. 1 at 6-7. Thus, by its terms, these requests would cover communications between 

Keker lawyers and counsel at Google or Google’s outside counsel. However, Your Honor’s order 

required disclosure only for “counsel communications with [Waymo engineer Gary] Brown and 

anyone else involved in the investigations at issue.” Dkt. 1272 at 2; see also id. at 1 (“Counsel’s 

communications to Mr. Brown regarding Mr. Brown’s investigation fall within the subject matter of 

the disclosed investigation.”). Communications between Keker and others (including in-house 

counsel) therefore are not covered by the order, and there is no basis in law or fairness to extend the 

order to cover such communications, which go far beyond Waymo’s limited waiver concerning Mr. 

Brown’s investigation. And absent a finding of waiver under this Court’s order, communications 

between Keker attorneys and counsel at Google or Google’s outside counsel on the subjects at issue 

would clearly be protected by attorney-client privilege.

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

WAYMO MOTION TO QUASH KEKER SUBPOENA

III. CONCLUSION

For the foregoing reasons, Waymo requests that the Court quash the Keker Subpoena to the 

extent it covers documents and communications protected by Waymo’s attorney-client privilege 

and/or work product.

Respectfully submitted,

DATED: August 24, 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 1347 Filed 08/24/17 Page 5 of 5