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No. 3:17-cv-00939-WHA

SUPPLEMENTAL BRIEF IN SUPPORT OF WAYMO’S MOTION TO COMPEL PRODUCTION OF WITHHELD DOCUMENTS 

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,

v.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

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

SUPPLEMENTAL BRIEF IN SUPPORT 

OF PLAINTIFF WAYMO LLC’S 

MOTION TO COMPEL PRODUCTION 

OF WITHHELD DOCUMENTS

PUBLIC REDACTED VERSION OF 

DOCUMENT SOUGHT TO BE SEALED

Case 3:17-cv-00939-WHA Document 524 Filed 05/30/17 Page 1 of 10
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-1- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

Pursuant to the Court’s authorization at the May 25, 2017 hearing (5/25/2017 Hr’g Tr. at 

28:21-23), Plaintiff Waymo LLC (“Waymo”) hereby submits this supplemental brief in support of 

its Motion To Compel Withheld Documents (the “Motion”) (Dkt. 321). 

INTRODUCTION 

Defendants have now produced a fully un-redacted version of the February 22, 2016 Term 

Sheet for Uber’s acquisition of Otto, including the at Exhibit C. The 

newly provided information further establishes that the “due diligence” materials are not subject to 

any valid claim of privilege. 

The newly produced evidence confirms that the “Outside Expert” conducting the due 

diligence activities was operating as who was 

preparing a to produce to 

. (Ex. 12 at -7572, -7569 (emphasis added).)1 This 

evidence establishes that there is no possible claim of attorney-client privilege over the 

communications between . This also undermines 

Defendants’ work product claims as it indicates that the Outside Expert was merely reporting to 

, and not working at their direction in anticipation of litigation. 

Additionally, the newly produced information confirms that the Term Sheet called for 

these due diligence efforts to be undertaken and completed for a business, and not a legal purpose. 

The information demonstrates that the was required to 

 (Id. at -7566 (emphasis added).) While Exhibit C to 

the Term Sheet includes a provision that 

no similar provision prevented Uber 

from 

. (Id. at -7569.) This reinforces the conclusion that the entire due 

 

1

 References to “Ex. __” are to the accompanying Declaration of Patrick Schmidt. Exhibit 

numbering begins at Exhibit 12, to maintain continuity with Exhibits 1-8 to Waymo’s Opening 

Brief and 9-11 to its Reply Brief. Pin cites correspond to the last four digits of the Bates number 

of the cited page. 

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-2- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

diligence process was conducted in furtherance of an arms-length, commercial transaction, which 

is not entitled to the protections of the common interest doctrine. As such, the sharing of the due 

diligence materials amongst the members of the purported joint defense group waived any 

applicable claim of privilege. 

Finally, the previously redacted material confirms that the due diligence efforts were 

primarily directed towards collecting and compiling factual information pursuant to a , 

commercial transaction between parties that were at arms-length to one another. Exhibit C to the 

Term Sheet itself defines as the report produced by 

 (Id. at -7569 (emphasis added).) Under these 

circumstances, no possible claim of attorney-client or work product privilege can attach to what is 

undeniably factual material collected pursuant to a . 

At a minimum, the factual nature of the due diligence investigation defeats any possible claim that 

the materials were opinion work product, rendering them at least discoverable in light of Waymo’s 

“substantial need.” 

BACKGROUND 

Defendants are withholding from production documents relating to a “due diligence” 

investigation conducted by Stroz Friedberg (“Stroz”) in conjunction with Uber’s acquisition of 

Anthony Levandowski’s company Otto. However, it was not until May 11th that Defendants 

finally, for the first time, produced the underlying acquisition documents, albeit in heavily 

redacted form. After Waymo objected in a conference with the Special Master, Defendants agreed 

to revisit the redactions, and on May 12th produced somewhat less redacted versions, which were 

attached as Exhibits 9, 10, and 11 to Waymo’s May 16th Reply Brief. (Dkt. 445 Exs. 9, 10, and 

11.) Even at this time, however, four key provisions of Exhibit C ) to the 

February 22, 2016 Term Sheet (Dkt. 445-2 (Ex. 9 to Reply) at pp. 50-59) remained redacted: (i) a 

paragraph titled ; (ii) a portion of the 

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

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

paragraph; (iii) a paragraph titled ; and (iv) two full pages that turned out 

to be an “Attachment A,” . 

At the May 25th hearing on Waymo’s Motion, the Magistrate Judge ordered Uber to 

produce a fully un-redacted version of the Term Sheet, and provided Waymo an opportunity to 

supplement the record to respond to this previously undisclosed evidence. Below, Waymo 

addresses this newly provided evidence, its relationship to the underlying transaction, and its 

impact on Defendants’ claimed privileges. 

ARGUMENT 

A. Defendants Redacted Key Portions Of The Relevant Acquisition Documents. 

When Defendants first produced the February 22, 2016 Term Sheet relating to the UberOtto transaction, they did so in a way that obscured the relationship between the due diligence 

investigation and the transaction being discussed at the time. 

As originally produced, the February 22, 2016 Term Sheet describes a 

2

that would provide 

. (Ex. 12 at -7519.) 

Exhibit C, the to the Term Sheet, provides that 

. (Id. at -7566.) Exhibit C excludes 

 

2

 On April 11, 2016, the was executed in a document called

 (Ex. 13 at §§ 1.1, 1.2 

).) The provides that, prior to its effective date,

 (Id. at 7.) Exhibit P is described (id.

at v), but Exhibit P has not yet been produced to Waymo. 

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-4- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

 (Id.

at -7566 – -7567.) 

As Waymo argued at the May 25th hearing, this evidence strongly indicated that no 

possible common interest could have arisen with respect to the due diligence investigation, 

because while Uber had an interest in the 

interest of the Diligenced Employees was . Indeed, 

the structure of the agreement, including the —which only provides 

—is an 

acknowledgement that the relevant parties held very different legal interests with respect to the 

proposed transaction. 

Because of Defendants’ improper redactions, however, the acquisition documents as 

originally produced provided little or no insight regarding the purpose of the due diligence efforts, 

the timing of the investigation, or the procedures under which the investigation was to take place. 

This prevented Waymo from fully understanding the relationship between the due diligence 

investigation and the overall transaction. As discussed below, that information, which has only 

recently been produced, confirms that there is no valid privilege over the withheld due diligence 

materials. 

B. The Unredacted Provisions Of The Term Sheet Confirm That Stroz Was Not 

Working At The Direction Of The Parties’ Attorneys. 

 Unsurprisingly, the portions of the Term Sheet that Defendants were most reluctant to 

disclose are also the portions that most clearly demonstrate that no valid privilege exists. For 

example, the now un-redacted includes the following definition for the term 

: 

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-5- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

(Ex. 12 at -7569 (emphasis added).) This definition makes clear that the due diligence efforts of 

Stroz were 

 (Ex. 12 at -7569.) Notably absent from this definition is any indication that the Outside 

Expert was directed by or engaged by 

This eliminates any possible claim of attorney-client privilege over materials pertaining to Stroz’s 

communications with (5/25/2017 Hr’g Tr. at 41:5-11 (“And he may have been 

involved and under what circumstances he would allow his client to be interviewed. But that’s 

very different from saying that he retained, right, that Stroz Friedberg was his agent, because you 

agree with that, it would have to be his agent for it to be attorney-client privilege.” (Emphasis 

added).) 

Moreover, the included as part of 

Attachment A to the un-redacted version of Exhibit C, clarifies that Stroz was acting as 

 (Ex. 12 at -7572 (emphasis added).) This suggests that Stroz was not working 

at the direction of in anticipation of litigation, but rather that Stroz was retained to 

 

described in the Term Sheet. This severely undermines Defendants’ contention that the Stroz 

report and related materials are the “work product” of Uber’s and Otto’s attorneys. Lewis v. Wells 

Fargo & Co., 266 F.R.D. 433, 440 (N.D. Cal. 2010) (finding that work product did not attach to 

documents that “were not created in anticipation of litigation but rather, would have been created 

in substantially similar form even if no litigation was anticipated.”).

 For these reasons, the newly provided evidence strongly suggests that no privilege—

attorney-client or work product—attaches to the due diligence materials in the first place. 

C. The Unredacted Term Sheet Confirms That The Due Diligence Materials Were Not 

Prepared Pursuant To A Common Legal Interest. 

 In addition, the previously redacted material makes clear that at the work of Stroz and its 

resulting report was performed for an unprivileged business purpose, and not for formulating a 

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-6- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

joint legal strategy on a matter of common legal interest. See Elan Microelectronics Corp. v. 

Apple, Inc., 2011 WL 3443923, at *2 (N.D. Cal. Aug. 8, 2011) (holding that the common interest 

doctrine “does not extend to communications about a joint business strategy that happens to 

include a concern about litigation.”); see also In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th 

Cir. 2012) (“[A] shared desire to see the same outcome in a legal matter is insufficient to bring a 

communication between two parties within [the common interest] exception.”). 

First, the un-redacted version of Exhibit C to the Term Sheet now includes a paragraph 

titled which is reproduced below: 

(Ex. 12 at -7566 (emphasis added).) This provision makes clear that the of 

the was to be 

 In other words, 

 This confirms the argument that Waymo has been making all 

along: Uber was requiring the due diligence process not because it was preparing a joint legal 

strategy with the Diligenced Employees, but rather because it was investigating whether 

.

Further reinforcing this conclusion is the requirement that the 

in regards to 

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-7- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

the due diligence efforts.3 If, as Defendants contend, the due diligence efforts were directed 

towards formulating a common legal interest, there would be no need for Uber to include such a 

contractual provision, because it would have been 

. The fact that Uber 

—disproves 

Defendants’ claim that this was all somehow pursuant to a common legal interest.

Second, also included in the un-redacted version of Exhibit C to the Term Sheet is a 

paragraph titled “ ”:

 

(Ex. 12 at -7569 (emphasis added).) Again, this previously redacted paragraph supports Waymo’s 

argument that the due diligence efforts of Stroz were for the purposes of facilitating a contingent 

business transaction and not a joint legal strategy. Although the paragraph 

clarifies that 

 (See also id. at -7529 (providing that 

). In other words, Uber was reserving its right to 

based on the results of the Stroz due diligence efforts which, 

as described above, were to be (Id.

at -7566.) 

 

3

 The also references such 

 (Ex. 13 at 7.) The Agreement references an Exhibit P 

(which has been withheld) that is the (Id. at v.) 

Waymo requests that Exhibit P to the Put Call Agreement, as well as all executed versions of the 

be produced immediately. 

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-8- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

Third, the now un-redacted “Attachment A” to the “ ” describes in 

detail the procedures and parameters of the planned due diligence efforts. (Ex. 12 at -7571.) 

Amongst these procedures is a that calls for the 

—i.e., exactly the type of documents that one would expect to be requested as 

part of a due diligence effort in advance of consummating a proposed commercial transaction 

between parties operating at arms-length. 

For these reasons, the due diligence investigation was intended to inform the parties’ 

business decision about whether to enter into the Put Call Agreement, and the common interest 

doctrine therefore does not apply. All due diligence materials must be produced. 

D. The Unredacted Provisions Of The Term Sheet Confirm That Stroz Was 

Compiling Factual Material, To 

Which No Privilege Can Attach. 

Finally, the now unredacted definition for the term “ ” in the “

” makes clear that the purpose of the due diligence efforts was merely to 

4

 (Ex. 12 at -

7569 (emphasis added).) That is, the parties to the Term Sheet negotiated, at arms length, the

definition of and the direction to be provided to Stroz with respect to due diligence 

related . This is not a situation where an attorney retains an 

agent for the purposes of compiling facts relevant to an anticipated litigation. Rather, in this case,

parties with conflicting legal interests mutually agreed upon an to collect 

factual material pursuant to a pre-agreed protocol for the purposes of facilitating 

commercial transaction. (Ex. 12 at -7572 (emphasis added).) Under these circumstances, 

Defendants are simply trying to use the privilege to shield disclosure of underlying facts, which is 

 

4

 are defined by Exhibit C to include 

 (Ex. 12 at

-7569.)

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-9- No. 3:17-cv-00939-WHA

OPPOSITION TO ANTHONY LEVANDOWSKI’S MOTION FOR INTERVENTION AND MODIFICATION OF ORDER

improper. See O’Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 280 (C.D. Cal. 1999) (“As to 

documents subject to the attorney-client privilege or work product doctrine, the plaintiffs are 

correct in contending that not all attachments to, or enclosures with, such documents are 

necessarily protected by the privilege.”). 

 At a minimum, the revelation that the Stroz due diligence efforts were directed towards 

compiling underlying factual material 

confirms that the “ ,” including all attachments, are at most, “fact” 

and not “opinion” work product that should be produced to satisfy Waymo’s “substantial need” for 

these materials in light of the Mr. Levandowski’s assertion of the Fifth Amendment privilege. 

Fed. R. Civ. P. 26(b)(1); In re John Doe Corp., 675 F.2d 482, 492 & n.10 (2d Cir. 1982) 

(substantial need shown where “potential witnesses have invoked the privilege against selfincrimination”). Thus, particularly in light of the newly revealed evidence, Defendants should be 

compelled to produce all relevant due diligence materials. 

CONCLUSION 

 For the foregoing reasons, as well as those stated in Waymo’s Opening (Dkt. 321) and 

Reply Briefs (Dkt. 444), Waymo respectfully requests that the Motion be granted in full. 

DATED: May 30, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

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