Neel Chatterjee

+1 650 752 3256

NChatterjee@goodwinlaw.com

Goodwin Procter LLP

135 Commonwealth Drive

Menlo Park, CA 94025

goodwinlaw.com

+1 650 752 3100

1

October 30, 2017

VIA ECF REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

The Honorable Jacqueline Scott Corley

United States Magistrate Judge

United States District Court for the Northern District of California

Phillip Burton United States Courthouse

450 Golden Gate Avenue

Courtroom F - 15th Floor

San Francisco, CA 94102

Re: Waymo LLC v. Uber Technologies, LLC, et al. (Case No. 3:17-cv-00939-WHA)

Dear Magistrate Judge Corley:

This letter replies to Waymo’s and Keker, Van Nest & Peters’ (“KVP”) oppositions to Otto Trucking’s 

motion to compel. Otto Trucking’s motion should be granted. Waymo offered a “reply” expert witness

who relied upon information Waymo previously withheld as privileged. This expert was only recently

deposed in October. At the same time as this reply report was offered, Otto Trucking raised related

waiver issues to Judge Alsup with respect to a subpoena to KVP. Judge Alsup ordered Otto Trucking to 

bring these issues before Your Honor. Dkt. 1970. Based on these two events, Otto Trucking brought 

the present motion. The Court should reject Waymo’s efforts to raise privilege as a shield but at the 

same time have its expert rely on the same activities to validate Waymo’s investigation.

Respectfully submitted,

/s/ Neel Chatterjee

Neel Chatterjee

GOODWIN PROCTER LLP

Attorneys for Defendant

Otto Trucking LLC

cc: Counsel of Record (via ECF); Special Master Cooper

Case 3:17-cv-00939-WHA Document 2141 Filed 10/30/17 Page 1 of 8
Neel Chatterjee

+1 650 752 3256

NChatterjee@goodwinlaw.com

Goodwin Procter LLP

135 Commonwealth Drive

Menlo Park, CA 94025

goodwinlaw.com

+1 650 752 3100

1

Otto Trucking’s motion seeks to compel three things: 

1. Documents relating to Waymo’s investigation of Mr. Levandowski 

; 

2. Production from Keker, Van Nest & Peters (“KVP”) requested by Otto Trucking in the KVP 

subpoena; and

3. Additional depositions with respect to any new documents produced. 

KVP and Waymo raise a cornucopia of arguments in opposition. Dkts. 2126 and 2127. The primary 

argument raised by Waymo and KVP is that Otto Trucking’s motion is untimely. This argument is 

meritless because the broadening of the waiver as to time and scope is the result of Mr. French, a 

“rebuttal” expert submitted by Waymo who relied upon a so-called investigation that was longer in time, 

involved more people, and was broader in scope. Waymo cannot use privilege as a sword and shield by 

prevailing on a narrowing of the waiver while at the same time sandbagging Otto Trucking through a reply 

expert who relies on a broader scope. KVP and Waymo also make numerous other arguments which can 

easily be rejected simply by comparing their arguments to Mr. French’s testimony. 

I. OTTO TRUCKING’S MOTION IS TIMELY

Waymo and KVP argue, in various ways, that Otto Trucking’s motion is untimely. This argument is 

faulty because Waymo’s argued position and its rebuttal expert opinion are directly inconsistent with each 

other. It was not until this inherent conflict arose that Otto Trucking determined it needed to file this 

motion. 

Waymo originally argued that its waiver was limited to forensic evaluation of three employees within a 

confined time frame and that no other aspect of its investigation would be relied upon. For example:

x On August 31, 2017, Waymo told the court: “We have not waived with respect to those 

investigations [the investigations of other former employees]. We’re not relying on them in this 

case, and they’re not relevant to this case.” Dkt. 1441 (8/31/17 Hearing Tr.) at 22:16-18. 

x Also on August, 31, 2017, Waymo represented: “One issue we do have there, Your Honor, is, you 

know, we have submitted the declaration of Gary Brown, in describing the forensic investigation 

of these three individuals. That's what we are affirmatively relying on. We are not affirmatively 

relying on the investigation of anyone else, or any other investigation of even Levandowski and the 

other two. I mean, there are other investigations that the attorneys performed; and we're not 

relying on any of that affirmatively. So we don't think that, you know, that falls within the 

waiver.” Id. at 11:15-24. 

Waymo succeeded in narrowing its subject matter waivers to the forensic investigation of three 

individuals, and the Court only allowed narrow discovery into other individuals to the extent the 

documents showed they were clearly intertwined. The Court would not, however, broaden the waiver to 

all individuals, time or scope. 

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and the Court should not permit Waymo to game its privilege assertions in this manner. Theranos, Inc. v. 

Fuisz Techs., Ltd., No. C 11-5236 PSG, 2013 WL 2153276 at *1 (N.D. Cal. 2013); Verinata Health, Inc. 

v. Sequenom, Inc., No. C 12-00865 SI, 2014 WL 4076319, at *3 (N.D. Cal. Aug. 18, 2014).

Mr. French’s reliance on the broader investigation waives the privilege, as Otto Trucking should be 

allowed to test his opinions. Testifying experts must disclose “the facts or data considered by the [expert] 

witness in forming” his or her opinions. Fed. R. Civ. P. 26(a)(2)(B)(ii). Courts broadly construe what 

was “considered” by the expert, and “all things communicated to a testifying expert and considered by the 

expert in forming an opinion must be disclosed.” S. Yuba River, 257 F.R.D. at, 612 (citation omitted); see 

also City of Torrance, 163 F.R.D. at 593 (“Rule 26(b)(4) has been broadly interpreted to authorize 

disclosure of both expert opinions and ‘all the documents the expert generated or examined in the process 

of forming those opinions.’”).

This rule extends to attorney opinion. Yuba River, 257 F.R.D. at 610; see id. at 612 (“this court is not 

aware of a contrary decision by any court within the Ninth Circuit”); see also S.E.C. v. Reyes, No. C06-

04435 CRB, 2007 WL 963422, at *2 (N.D. Cal. Mar. 30, 2007) (“this Court concludes, in accord with 

every other court that has considered the issue squarely, that [the party] may assert the work-product 

privilege, but only as to materials that do not pertain to the subject matter on which his experts have 

submitted testimony.”) (emphasis added). Courts favor discovery of materials relied on, communicated 

to, and even considered but rejected by experts in forming their opinions. Torrance, 163 F.R.D. at 594. 

Discovery of all of the information provided to the expert “assures the independence of the expert’s 

thinking,” providing the adverse party “a fair opportunity to expose whatever weaknesses, unreliabilities, 

or biases might infect the opinions of testifying experts.” Id. at 593; see also Lewert v. Boiron, Inc., 212 

F.Supp.3d 917, 931 (C.D. Cal. May 12, 2016) (citing Torrance); and Holzhauer v. Golden Gate Bridge, 

Hwy. & Transp. Dist., 2015 WL 12976923 at *4 (N.D. Cal. June 11, 2015).

Waymo incorrectly argues that Otto Trucking should be denied discovery into the issues its expert has 

expressed opinions about. When a party waives privilege, it does so as to the entire subject matter. 

Informatica Corp. v. Bus. Objects Data Integration, Inc., 454 F. Supp. 2d 957, 963 (N.D. Cal. 2006) 

(quoting Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005)), aff’d, No. C 02-3378

JSW, 2006 WL 2329460 (N.D. Cal. Aug. 9, 2006). Waymo ignores that the scope of the waiver is rooted 

in fairness to the moving party. Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003); see also Fed. R. 

Evid. 502(a). The fairness principle directs the “disclosure of related, protected information, in order to 

prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.” Fed. R. 

Evid. 502(a); see also Theranos, 2013 WL 2153276, at *1. In order words, “[t]his fairness principle ‘is 

often expressed in terms of preventing a party from using the privilege as both a shield and a sword.’” 

Verinata Health, Inc., 2014 WL 4076319, at *3 (citing Bittaker, 331 F.3d at 719; Kaiser Found. Health 

Plan, Inc. v. Abbott Labs., Inc., 552 F.3d 1033, 1042 (9th Cir. 2009)).

III. KVP SHOULD PRODUCE ITS RESPONSIVE DOCUMENTS.

Waymo contends that it has produced “all documents between KVP, Brown and others on the Google 

forensics team. There is no other information in the possession, custody or control of KVP that is within 

the proper scope of the waiver and that has not already been produced.” Dkt. 2126 at 6. Waymo’s careful 

wording makes clear that it is not referring to internal KVP documents, or documents between KVP and 

others at Google who were not technically part of the forensics team or that were not within Waymo’s 

very narrow definition of the scope of the waiver.

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