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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

WAYMO LLC,

Plaintiff,

v.

UBER TECHNOLOGIES, INC., et al.,

Defendants.

Case No.17-cv-00939-WHA (JSC)

ORDER RE: SCOPE OF UBER’S 

SUBJECT MATTER WAIVER

The Court previously found that Uber waived its attorney-client privilege when it disclosed 

the contents of a March 29, 2017 conversation between its litigation counsel, its CEO Travis 

Kalanick, and its executive Anthony Levandowski. (Dkt. No. 1172.) The Court then asked the 

parties to file supplemental submissions regarding the scope of Uber’s waiver and invited Mr. 

Levandowski to file a submission as well given that he is likely to assert a privilege in 

conversations that he had that would otherwise be covered by Uber’s waiver. The district court 

subsequently affirmed the Court’s finding of Uber’s waiver and held that because the waiver came 

too late in the litigation Uber is barred from offering evidence of the contents of that conversation 

at trial. (Dkt. No. 1267 at 3.) The district court further held that “Waymo remains entitled to 

look into the subject matter over which Uber has waived privilege” and thus the scope of Uber’s 

waiver must still be decided. “If, at trial, Waymo ultimately introduces evidence on the waived 

subject matter, then Uber may in fairness be allowed to respond with its own evidence on the 
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United States District Court

Northern District of California

same.” (Id.). Accordingly, the Court addresses the scope of Uber’s waiver below and finds that 

because Uber cannot waive Mr. Levandowski’s privilege in conversations covered by the subject 

matter of Uber’s waiver, Uber should not be allowed to offer evidence of the March 29 

conversation at trial for this additional reason.

DISCUSSION

The parties agree that the scope of Uber’s waiver is all privileged conversations in which 

Mr. Levandowski discussed his downloading of Waymo’s files and his decision to invoke the 

Fifth Amendment, along with Uber’s response. The difficulty is that Mr. Levandowski has 

asserted his own attorney-client privilege in those conversations, including the March 29 

conversation that Uber disclosed, pursuant to his and Uber’s Joint Defense Agreement. (Dkt. No. 

1246.) All parties also agree that Uber cannot waive Mr. Levandowski’s privilege and thus that 

the Court cannot order Uber to testify as to what was said in the conversations covered by Uber’s 

waiver. See, e.g., United States v. Gonzalez, 669 F.3d 974, 982 (9th Cir. 2012). Finally, Uber and 

Waymo also agree that Uber should therefore be precluded from offering into evidence the 

contents of the March 29, 2017 conversation. (Dkt. No. 1249 at 2; Dkt. No. 1248 at 4.) The Court 

agrees that result makes sense. Thus, Uber’s inability to waive the privilege as to all 

conversations which in fairness it should disclose is an additional reason to preclude it from 

offering the March 29, 2017 conversation into evidence.

The district court left Waymo the option of nonetheless offering the March 29 conversation 

into evidence. Discovery closes on August 24, 2017. If Waymo wishes to challenge Mr. 

Levandowski’s assertion of an individual attorney-client privilege in the March 29 and related 

conversations it must do so before discovery closes. Should Waymo decide not to do so, this Court 

will not revisit the scope of Uber’s waiver.

Finally, the Court declines Mr. Levandowski’s invitation to this Court to make a factual 

finding that he has and did not waive an attorney-client privilege in the March 29 conversation 

disclosed by Uber. That is a matter for future proceedings if and when a party attempts to use 

those communications against Mr. Levandowski.
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United States District Court

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This Order disposes of Docket No. 1246.

IT IS SO ORDERED.

Dated: August 23, 2017

JACQUELINE SCOTT CORLEY

United States Magistrate Judge