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-1- No. 3:17-cv-00939-WHA

WAYMO’S RESPONSE TO FIFTH AMENDMENT SUBMISSION

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,

v.

UBER TECHNOLOGIES, INC.;

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

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

PLAINTIFF WAYMO LLC’S RESPONSE 

TO INTERVENOR ANTHONY 

LEVANDOWSKI’S COURT-ORDERED 

FIFTH AMENDMENT SUBMISSION

Plaintiff Waymo LLC (“Waymo”) submits this brief in response to the Fifth Amendment 

Submission of Intervenor Anthony Levandowski (Dkt. 244), filed on April 19, 2017. On April 12, 

this Court instructed Mr. Levandowski to “submit the privilege log to me in camera without giving it 

to anyone else, and then I can evaluate whether or not I think which aspects, if any, would be 

incriminating under the Hubbell theory.” Dkt. 230 (4/12/2017 Tr.) at 78:21-25. The Court also 

ordered Mr. Levandowski to “give the other side enough of the argument so that they can respond to 

it.” Id. at 79:13-14. Mr. Levandowski has utterly failed to do so. Instead, he puts forward generic 

Case 3:17-cv-00939-WHA Document 250 Filed 04/21/17 Page 1 of 6
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-2- No. 3:17-cv-00939-WHA

WAYMO’S RESPONSE TO FIFTH AMENDMENT SUBMISSION

Fifth Amendment principles without any explanation for why the documents sought from him fall 

within the privilege. 

This lack of explanation is especially egregious in light of Mr. Levandowski’s conduct in 

discovery. Prior to his deposition on April 14, Mr. Levandowski produced no documents at all, 

notwithstanding that this Court ordered that non-privileged documents be produced on the morning of 

the deposition. Dkt. 230 at 75:25-76:5. At the deposition, Mr. Levandowski asserted the Fifth 

Amendment privilege in response to every single question posed at his deposition (Dkt. 246-5) other 

than six foundational questions eliciting, for example, his name and education (id. 8:8-13, 9:16-19,

10:11-16). He even asserted attorney-client privilege in response to a question about what common 

interest with Uber was the basis for the privilege. Id. 32-33. Mr. Levandowski did not produce any 

documents until April 19 (after the deposition and therefore in defiance of this Court’s order), when 

his counsel said she mailed documents that Waymo has yet to receive and which still do not purport to 

be complete. Dkt. 248-15 (Apr. 19, 2017 Letter from Amy Craig to Jordan Jaffe).

Because Mr. Levandowski has not provided enough of an argument—or really, any argument 

aside from ipse dixit—Waymo cannot adequately respond to Mr. Levandowski’s assertion of Fifth 

Amendment privilege. Waymo does not know what documents might exist, what they might contain, 

or how Mr. Levandowski’s producing them would constitute self-incriminating testimony. 

Nonetheless, Waymo provides this response to explain the key omissions from Mr. Levandowski’s 

discussion of Fifth Amendment law and to explain why it is very doubtful that many (let alone all) of 

the withheld documents fall within the Fifth Amendment privilege. At a minimum, Mr. 

Levandowski’s incredibly broad assertion of privilege and his failure to provide any basis for the 

assertion support adverse inferences against Uber, as discussed in Waymo’s reply in support of its 

motion for a preliminary injunction.

I. MR. LEVANDOWSKI MAKES NO SHOWING THAT PRODUCTION OF A 

PRIVILEGE LOG OR DOCUMENTS WOULD VIOLATE HIS FIFTH 

AMENDMENT RIGHTS

Rather than provide some argument about why he should be allowed not to produce documents 

or even a privilege log (other than ex parte and in camera), Mr. Levandowski simply lists some Fifth 

Amendment principles and asserts baldly that this case falls within those principles. As stated above, 

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

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there is no real means for Waymo to respond to this kind of unexplained assertion of Fifth 

Amendment privilege. But there are several basic points that cast doubt on his assertion and that this 

Court should consider when reviewing the privilege log.

First, Mr. Levandowski’s discussion of Fifth Amendment principles (Dkt. 244 at 2-6) omits 

several key points. To the extent Mr. Levandowski suggests that any possibility of incrimination 

suffices for application of the Fifth Amendment, such a suggestion is incorrect. “The central standard 

for the privilege’s application has been whether the claimant is confronted by substantial and real, and 

not merely trifling or imaginary, hazards of incrimination.” United States v. Apfelbaum, 445 U.S. 115, 

128 (1980) (quotation marks omitted). Thus, for each document withheld on Fifth Amendment 

grounds, Mr. Levandowski would need to identify a substantial—not merely any—risk of 

incrimination.

Furthermore, the only incrimination that matters for Fifth Amendment purposes is from the 

testimonial aspect of producing a document, not from the document itself. The Fifth Amendment 

privilege “adheres basically to the person, not to information that may incriminate him.” Couch v. 

United States, 409 U.S. 322, 328 (1973). The Supreme Court has therefore explained that “the Fifth 

Amendment does not independently proscribe the compelled production of every sort of incriminating 

evidence but applies only when the accused is compelled to make a testimonial communication that is 

incriminating.” Fisher v. United States, 425 U.S. 391, 408 (1976). Simply put, a claim of Fifth 

Amendment privilege must be based on the “communicative aspects” of producing the evidence 

“wholly aside from the contents of the papers produced.” Id. at 410. Thus, for each document 

withheld on Fifth Amendment grounds, Mr. Levandowski must identify not merely why the document 

is incriminating, but why mere production of the document constitutes incriminating testimony. Mr. 

Levandowski pays lip service to this idea in his discussion of the general legal principles (Dkt. 244 at 

4-5), but makes no effort to apply it to the facts at hand.

Second, applying the Fifth Amendment principles here, to the extent Waymo can do so in the 

absence of any information about the documents withheld, it is highly doubtful that there is a plausible 

basis for Mr. Levandowski’s broad refusal to comply with the subpoena. Even assuming Mr. 

Levandowski’s production of the stolen files would be testimonial because his possession of those 

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

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documents could be inculpatory, this concerns only the first part of Waymo’s first request for 

production. See Dkt. 212-1 at 7. The other requests for production that this Court has allowed (Dkt. 

230 at 70-71) concern: “documents reflecting any meetings or discussions regarding the substance of 

the Misappropriated Materials outside of Waymo” (RFP No. 1) and “communications between [Mr. 

Levandowski] and Uber between January 2015 and August 2016” (RFP No. 3). Dkt. 212-1 at 7. It is 

difficult to see how all or even most of these documents would potentially incriminate Mr. 

Levandowski. 

But even if the content of those documents incriminate Mr. Levandowski, those documents

still would not fall within the Fifth Amendment privilege. While the substance of some of these 

communications could be incriminating for Mr. Levandowski, his mere production of those 

communications has no testimonial aspect. Thus, he “cannot avoid compliance with the subpoena 

merely by asserting that the item of evidence which he is required to produce contains incriminating 

writing, whether his own or that of someone else.” Fisher, 425 U.S. at 411; see also id. at 410 n.11. 

For instance, Mr. Levandowski would not be incriminated because he possessed an email that 

discussed his theft, but rather because he discussed his theft in the email. Thus, the production of such 

emails (or other such communications) would not fall within the Fifth Amendment privilege. As in 

Fisher, where the existence of a communication is itself unexceptional and its content is what really 

matters, there is no Fifth Amendment privilege to conceal it. See id. at 411 (“It is doubtful that 

implicitly admitting the existence and possession of the papers rises to the level of testimony within 

the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, 

and are the kind usually prepared by an accountant working on the tax returns of his client. ... The 

question is not of testimony but of surrender.” (quotation marks omitted)); id. at 412 (“Moreover, 

assuming that these aspects of producing the accountant’s papers have some minimal testimonial 

significance, surely it is not illegal to seek accounting help in connection with one’s tax returns or for 

the accountant to prepare workpapers and deliver them to the taxpayer. At this juncture, we are quite 

unprepared to hold that either the fact of existence of the papers or of their possession by the taxpayer 

poses any realistic threat of incrimination to the taxpayer.”). 

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

WAYMO’S RESPONSE TO FIFTH AMENDMENT SUBMISSION

In addition, to the extent that the documents are corporate records of Otto or Uber, such 

documents are categorically excluded from the Fifth Amendment privilege. “[C]orporate records are 

not private and therefore are not protected by the Fifth Amendment.” United States v. Blackman, 72 

F.3d 1418, 1427 (9th Cir. 1995) (quoting Braswell v. United States, 487 U.S. 99, 109 (1988)). “A 

corporate custodian cannot claim a Fifth Amendment privilege with regard to corporate records, even 

if the records or the act of producing them might incriminate him personally.” Id. (emphasis in 

original). Thus, if Mr. Levandowski is attempting to shield any records that rightfully belong to a 

corporation, such an attempt is legally baseless.

Third, even assuming Mr. Levandowski could show that producing each withheld document 

would constitute incriminating testimony and that the “foregone conclusion” doctrine did not apply, 

he would still have to show that production of the privilege log to Waymo would violate his Fifth 

Amendment rights. As this Court has recognized, there is the potential for great mischief in allowing 

individuals to assert that a privilege log is itself privileged. Dkt. 202 at 5. Indeed, this case is a perfect 

example, as Waymo is left with no idea of what Mr. Levandowski is refusing to produce or the factual 

basis for the assertion of privilege. Mr. Levandowski fails to address this issue at all.

II. MR. LEVANDOWSKI’S ASSERTION OF PRIVILEGE WITHOUT SUFFICIENT 

BASIS NECESSITATES ADVERSE INFERENCES AGAINST UBER

For the reasons stated in Waymo’s reply in support of its motion for a preliminary injunction, 

adverse inferences should be drawn against Uber based on Mr. Levandowski’s assertion of Fifth 

Amendment privilege. We add here only that the argument for adverse inferences is strengthened by 

the lack of any real argument or factual basis for the assertion of privilege, thereby denying Waymo a 

legitimate opportunity to refute the existence of privilege for the production of any particular 

document. The argument for adverse inferences is further strengthened by the fact that Mr. 

Levandowski is relying on the Fifth Amendment to shield production of correspondence with Uber 

itself.1 As discussed above, there is no legal basis for such an assertion of privilege. And while the 

 

1

 The adverse inferences to be drawn from assertion of the Fifth Amendment over such 

correspondence should include that such correspondence was in furtherance of a crime and that the 

crime-fraud exception to the privilege should therefore apply. 

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legitimate assertion of the privilege suffices for an adverse inference, the illegitimate assertion of the 

privilege (as here) provides yet more reason for an adverse inference.

DATED: April 21, 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 250 Filed 04/21/17 Page 6 of 6