803 Hearst Avenue, Berkeley CA 94710 ∙ www.ramsey-ehrlich.com ∙ Tel: (510) 548-3600 ∙ Fax: (510) 291-3060

June 16, 2017

Magistrate Judge Jacqueline Scott Corley

U.S. District Court for the Northern District of California

San Francisco Courthouse, Courtroom F - 15th Floor

450 Golden Gate Avenue, San Francisco, CA 94102

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

Dear Magistrate Judge Corley:

For the reasons set forth below, the Court should deny Waymo’s motion to compel production of 

materials Mr. Levandowski is withholding based on his Fifth Amendment privilege. 

I. Introduction

It is a bedrock principle of constitutional law that, whenever an individual has “reasonable cause 

to apprehend danger” of criminal liability, he is privileged under the Fifth Amendment not to be 

compelled to make testimonial communications—whether through words from his mouth or 

through the production of records in response to subpoena—that could “furnish a link in the 

chain of evidence needed to prosecute [him].” Hoffman v. United States, 341 U.S. 479, 486 

(1951); see also United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995) (stating that the 

Fifth Amendment “protects against any disclosures which the witness reasonably believes could 

be used in a criminal prosecution or could lead to other evidence that might be so used”).

The law does not require an individual in such a situation to first divulge the information in order 

to protect it from being divulged. As the Ninth Circuit has explained: “It is not necessary, of 

course, that the person to whom the question has been put establish the precise manner in which 

he will incriminate himself by responding. This would make the privilege useless.” Davis v. 

Fendler, 650 F.2d 1154, 1159 (9th Cir. 1981) (emphasis added). Waymo complains that Mr. 

Levandowski made a “secret” and “unexplained” submission to the Court, Dkt. 596 at 3. But the 

courts are in broad agreement that, if any inquiry into the validity of an asserted privilege is 

needed, it should be done in camera. See United States v. Drollinger, 80 F.3d 389, 393 (9th Cir. 

1996) (“the required inquiry is best made in an in camera proceeding”); Bodwell, 66 F.3d at

1002 (reversing and remanding for in camera proceeding); United States v. Argomaniz, 925 F.2d 

1349, 1355 (11th Cir. 1991) (remanding for in camera proceeding); United States v. Rendahl, 

746 F.2d 553, 555-56 (9th Cir. 1984) (affirming finding, based on in camera submissions, that 

the Fifth Amendment privilege applied); Takiguchi v. MRI Int’l, Inc., No. 2:13cv-1183-HDMVCF, 2016 U.S. Dist. LEXIS 18340 at *12 n.6 (D. Nev. Feb. 12, 2016) (“The submission of a 

privilege log for in camera inspection is an appropriate procedure, when the Fifth Amendment 

privilege is asserted . . . .”). That, no doubt, is why Judge Alsup concluded that in camera

review is the appropriate mechanism in this case. See Dkt. 230 (4/12/2017 Tx) at 77-84.

None of Waymo’s arguments override Mr. Levandowski’s valid Fifth Amendment assertion.

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II. Argument

A. Mr. Levandowski Has Not Waived His Fifth Amendment Rights

Mr. Levandowski has consistently asserted his Fifth Amendment privilege against selfincrimination whenever it has been implicated in this case. Recently, on June 2, 2017, he 

supplemented his in camera submission to support the validity of his Fifth Amendment 

invocation regarding the materials at issue here. These detailed in camera submissions amply

justify Mr. Levandowski’s Fifth Amendment claims.

As Waymo concedes, the test for the assertion of the Fifth Amendment is whether “there are 

‘substantial hazards of self-incrimination that are real and appreciable, not merely imaginary and 

unsubstantial. . . .’” United States v. Bright, 596 F.3d 683, 690 (9th Cir. 2010). Plainly, a real 

risk of jeopardy arises in this matter. Yet, since Waymo was not given a log detailing each of the 

items (if any) Mr. Levandowski has withheld, Waymo now contends that Mr. Levandowski has 

thereby waived his Fifth Amendment privilege. This is not the law.

Waymo ignores that this Court ordered Mr. Levandowski to submit his privilege log in 

camera—a process that is “secret” by definition, and the proper method by which courts 

routinely evaluate Fifth Amendment claims. The Supreme Court has long embraced the 

principle that an inquiry into the invocation of a Fifth Amendment assertion must not require the 

witness “to surrender the very protection which the privilege is designed to guarantee.” 

Hoffman, 341 U.S. at 486. And, as explained in a case Waymo itself cites, an in camera

proceeding allows a person “the chance to provide targeted support for his Fifth Amendment 

claims without the loss of privilege and without the concern of incrimination.” United States v. 

Belcik, No. 8:15-mc-2-T-23MAP, 2016 U.S. Dist. LEXIS 90138 at *11 n.9 (M.D. Fla. Jul. 20, 

2016) (citing United States v. Zolin, 491 U.S. 554, 569 (1989)); see also Drollinger, 80 F.3d at

393; Bodwell, 66 F.3d at 1002; Argomaniz, 925 F.2d at 1355; Rendahl, 746 F.2d at 555-56; 

Takiguchi, 2016 U.S. Dist. LEXIS 18340 at *12 n.6; United States v. Christensen, No. MC 12-

08002-PHX-FJM, 2012 U.S. Dist. LEXIS 107372 at *5 (D. Ariz. Jul. 30, 2012).

Under Hubbell, the questions for the Court are whether Mr. Levandowski’s production in 

response to the particular requests would tacitly admit the existence, possession, location, or

authenticity of records, and whether these tacit admissions could potentially incriminate him. 

United States v. Hubbell, 530 U.S. 27, 32-36 (2000). Requiring Mr. Levandowski to produce a 

conventional privilege log, which would by itself admit the implicit testimonial facts that 

Hubbell protects, would eviscerate his Fifth Amendment rights. For that reason, courts do not

require litigants who raise Fifth Amendment act of production claims to produce a detailed 

privilege log to opposing parties. See SEC v. Chin, No. 12-cv-01336-PAB-BNB, 2012 U.S. Dist. 

LEXIS 182252 at *26 (D. Colo. Nov. 29, 2012) (holding that “requiring [respondents] to provide 

a detailed privilege log of the documents claimed to be subject to the protections of the Fifth 

Amendment . . . is testimonial, could be incriminating, and falls within the protection against

self-incrimination”); In re Syncor ERISA Litig., 229 F.R.D. 636, 649 (C.D. Cal. 2005) (rejecting 

a motion to compel a privilege log because “requiring defendant [ ] to produce a privilege log 

listing responsive documents may incriminate defendant [ ] by forcing him to ‘admit that the 

documents exist, are in his possession or control, and are authentic’”). Waymo has no answer to 

these cases.

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The only precedent Waymo cites to suggest it must be provided a privilege log is a case that does 

not even support the proposition they advance. In United States v. Real Property & 

Improvements Located at 2366 San Pablo Avenue, Berkeley, California, No. 13-cv-02027-JST 

(MEJ), 2014 U.S. Dist. LEXIS 148441 (N.D. Cal. Oct. 17, 2014), the court ordered a business 

entity that has no Fifth Amendment rights—not an individual—to produce a privilege log in 

response to a particular RFP without any discussion of the Fifth Amendment. Id. at *5. In fact, 

as to the particular holdings cited by Waymo, the business entity had not even relied on the Fifth 

Amendment in briefing to the court, see 2366 San Pablo Avenue, No. 13-cv-02027-JST, Dkt. No. 

155 at 4-5 (Oct. 10, 2014), which explains why the court did not address the Fifth Amendment in 

ordering the production of a log. 2014 U.S. Dist. LEXIS 148441, at *4-6. Later in the order,

however, when the Court did address a Fifth Amendment objection, the Court refused to compel 

the production of certain documents because there was a possibility that production would 

implicate an individual’s Fifth Amendment protections. Id. at *9. 

Further, in claiming Mr. Levandowski has waived his Fifth Amendment by not furnishing a 

privilege log, Waymo cites to cases that could not be more different from the present case. For 

instance, after the respondent in Belcik refused to attend a court-ordered in camera proceeding 

“to substantiate his privilege claims,” the court issued a warrant and had Belcik arrested. Belcik, 

2016 U.S. Dist. LEXIS 90138 at *6. Even after the respondent was brought to court and had 

secured counsel, Belcik still refused to take the oath or affirm that he would testify truthfully or 

present any evidence at the in camera proceeding. Id. at *8. Thus, the court was left to evaluate 

the respondent’s Fifth Amendment claims only upon “the paucity of information in the public 

file and the reasonable implications that are to be drawn from that consideration.” Id. at 

*11. That case has no similarity to the case at bench.

Likewise, in Davis, 650 F.2d 1154, the Ninth Circuit found waiver because Fendler had plainly 

acted in bad faith. Id. at 1160-61. He had waited 15 months after receiving interrogatories to 

assert his Fifth Amendment rights, and did so only after receiving a motion to compel. He then 

refused to submit information to support his claim beyond a “blanket claim of privilege,”

including to questions about “his address, his social security number, and about the address, 

place of employment, and nearest living relative of [his wife].” Id. at 1160. Given the absence 

of any evidence or explanation in the record to explain or support his Fifth Amendment

invocation, the Court found it was not justified. 

Again, these cases bear no resemblance to the present case. Here, Mr. Levandowski timely 

submitted a detailed in camera submission in good faith, as ordered by the Court. There has 

been no waiver, and the Court should evaluate the submission on its merits.

B. Records Withheld from Request No. 1 Are Protected by the Fifth Amendment

Waymo does not deny that it would be incriminating if Mr. Levandowski now possesses the 

“Misappropriated Materials” Waymo seeks in Request No. 1. Nor does Waymo deny that 

Request No. 1 would compel Mr. Levandowski “to make extensive use of ‘the contents of his 

own mind’ in identifying” and assembling responsive records, something that was roundly

condemned by the Supreme Court in Hubbell. 530 U.S. at 43. Instead, Waymo argues that the

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request does not implicate Mr. Levandowski’s Fifth Amendment rights at all because (1) Mr. 

Levandowski does not have an ownership interest in any Google files he may have retained, and 

(2) it is, they claim, a “foregone conclusion” that Mr. Levandowski currently possesses the 

materials that Waymo seeks. Dkt. 596 at 4-6. Both arguments fail.

1. Ownership is Irrelevant to the Fifth Amendment Inquiry

First, the question of ownership is a red herring. For purposes of the Fifth Amendment analysis, 

it is irrelevant whether the individual has an ownership right or other possessory rights to the 

particular item in his possession. Whether an item is alleged to be stolen or not, the sole question 

is whether compelling the individual to produce it would involve potentially incriminating 

testimonial communications. See, e.g., United States v. Doe (In re Three Grand Jury Subpoenas 

Duces Tecum Dated January 29, 1999), 191 F.3d 173, 176, 183 (2d Cir. 1999) (affirming lower 

court decision which found that the “question of testimonial incrimination is at its height when 

[the document] is produced by a person who is no longer employed by the corporation, because 

there is an inference that [he] may have stolen [it].” (emphasis added); McIntyre’s Mini 

Computer Sales Group, Inc. v. Creative Synergy Corp., 117 F.R.D. 492, 494 (D. Mass. 1987) 

(refusing to enforce a subpoena requiring the production of allegedly stolen customer lists, 

noting that production “would compel [the respondent] to admit by the very act of production 

that such documents exist, are in his possession, and are authentic . . . [and] in light of the 

allegation that [he] stole customer lists, the Court concludes that the compelled disclosure of 

such documents could seriously implicate fifth amendment concerns”).

Likewise, courts recognize that forcing an individual to produce even contraband or illegal drugs 

(things that no person can lawfully possess) would violate the Fifth Amendment by compelling

the self-incriminating admission that the individual knowingly possessed the prohibited goods. 

See, e.g., State v. Alexander, 281 N.W.2d 349, 352 (Minn. 1979) (upholding Fifth Amendment 

objection to producing an allegedly obscene film). This same rule applies to instrumentalities of 

crime, which the prosecution may certainly seize with a warrant, but may not compel to be 

produced in the face of a Fifth Amendment invocation. See, e.g., Commonwealth v. Hughes, 404 

N.E.2d 1239, 1244 (Mass. Sup. Ct. 1980) (quashing under Fisher a prosecution’s subpoena of a 

handgun because the defendant “would be making implicitly a statement about its existence, 

location, and control to which the [prosecution] would allude at trial to show he had possession 

and control . . . .”). Here again, the sole inquiry under the Fifth Amendment is whether 

production would entail implicit testimony—about the item’s existence, possession, location, or 

authenticity—that would tend to incriminate. 

In short, Request No. 1—for all “Misappropriated Materials”—is nothing short of a demand that 

Mr. Levandowski sift through, identify, hand over, and authenticate everything that Waymo 

claims he stole. For a request such as this, the incriminating nature of any responsive production 

is self-evident on its face. And in a context of “real and appreciable” jeopardy, as exists here for 

Mr. Levandowski, the Fifth Amendment requires that such a patently incriminating request be 

quashed outright. See Hoffman, 341 U.S. at 486-87 (“To sustain the privilege, it need only be 

evident from the implications of the question, in the setting in which it is asked, that a responsive 

answer to the question or an explanation of why it cannot be answered might be dangerous 

because injurious disclosure could result.” (emphasis added)). 

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2. Whether Mr. Levandowski Took Misappropriated Information When He 

Left Google’s Employ is Far From a “Foregone Conclusion”

Waymo’s final attempt to salvage Request No. 1 is the claim that it is a “foregone conclusion”

that Mr. Levandowski “absconded” with Waymo files, and thus, making him produce what he 

likely now possesses would add nothing to what Waymo and the government already know. Dkt. 

596 at 4. But this is simply not the case. To meet the foregone conclusion burden, Waymo must 

show that there already exists such conclusive certainty in the evidence that production of the 

materials sought would entail no incriminating testimony—but would instead be akin to mere 

surrender. Fisher v. United States, 425 U.S. 391, 411 (1976) (observing that “no constitutional 

rights are touched” when “the question is not of testimony but of surrender.”) (quoting In re 

Harris, 221 U.S. 274, 279 (1911)). Waymo has not made, and cannot make this showing here. 

The only affirmative evidence Waymo has adduced suggests that (a) Mr. Levandowski 

downloaded and possessed files associated with his job at Google while he was still employed at 

Google, and (b) after leaving Google, Mr. Levandowski reportedly “identified five discs in his 

possession containing Google information” that he then destroyed. 

First, the alleged fact that Mr. Levandowski downloaded certain files before leaving Google’s 

employ does not prove, of course, that Mr. Levandowski took this information with him when he 

left Google—a separate element that would have to be proved in a criminal prosecution. 

Compelling production of the requested records, if they exist, could certainly help the 

government establish that crucial, missing fact by forcing Mr. Levandowski to implicitly 

“admi[t] that the documents [still] exist [and] are in his possession or control . . . .” Doe v. 

United States (In re Grand Jury Subpoena), 383 F.3d 905, 909 (9th Cir. 2004).

Similarly, in a criminal prosecution, the government would need to prove facts that go far 

beyond the evidence suggesting that Mr. Levandowski identified and destroyed “five discs in his 

possession containing Google information.” Just as one example, the government would need to 

show the nature of any alleged Google information involved–i.e., that it constituted an actual

trade secret. And this is yet another gap that Waymo (or the government) may not force Mr. 

Levandowski to fill through his compelled act of production. Where the hazard of prosecution is 

real and not imaginary, the Fifth Amendment does not permit an individual to be conscripted into

assisting the government in meeting its evidentiary burden through the act of production, and the 

implicit compelled testimony it entails. Id. 

Further, Waymo cites to Judge Alsup’s observation that there has been a “strong showing” that 

Mr. Levandowski “absconded” with Waymo’s trade secrets that “likely remain in Levandowski’s 

possession.” Dkt. 596 at 5. But a “strong showing” that something is “likely,” in a civil context 

no less, is a long way from the level of certainty required to establish “foregone conclusion.” 

Indeed, it is the distance between suspecting and knowing. Compelled production is only

allowed when it is clear that it adds “little or nothing to the sum total of the Government’s 

information”—not, as here, when it would fill critical evidentiary gaps in a possible prosecution.

Fisher, 425 U.S. at 411.

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Finally, Waymo’s analysis fails because it wrongly focuses on what Waymo knows, when the 

relevant inquiry for purposes of the foregone conclusion analysis is what the government knows. 

See, e.g., In re Grand Jury Subpoena, 383 F.3d at 911 (“It is the quantum of information 

possessed by the government before it issues the relevant subpoena that is central to the foregone 

conclusion inquiry.” (emphasis added)); Dkt. 539 at 12-14.

C. Records Withheld from Request No. 3 Are Protected by the Fifth Amendment

Waymo’s arguments about the withheld communications (e.g., emails and text messages)

between Mr. Levandowski and Uber under Request No. 3 also miss the mark. This request

requires Mr. Levandowski to use the contents of his own mind—specifically, he must sift 

through his written communications and identify which ones involved individuals who were 

connected to Uber and then, through production, implicitly testify to the existence, possession, 

and authenticity of the communications. Such tacit testimony is potentially incriminating 

because it could well “furnish a link in the chain of evidence needed to prosecute the claimant 

for a federal crime.’” Hubbell, 530 U.S. at 36; In re Grand Jury Proceedings, 41 F.3d 377, 378, 

381 (8th Cir. 1994) (quashing subpoena that sought “correspondence,” among other items, 

because, “[a]lthough the contents of the documents are not protected,” the production of the 

requested records would “involve compelled testimonial self-incrimination”).

“Compelled testimony that communicates information that may ‘lead to incriminating evidence’

is privileged even if the information itself is not inculpatory.” Hubbell, 530 U.S. at 38 (quoting 

Doe v. United States, 487 U.S. 210, 208 n.6 (1988)). Certainly, not every document responsive

to Request No. 3 raises a concern about furnishing a “link in the chain” of incrimination. Thus, 

Mr. Levandowski has produced responsive documents. But, with respect to any that have been 

withheld, production here would disclose whether certain communications (i.e., communications 

that predate Mr. Levandowski’s resignation from Google) occurred and thereby provide the 

starting point for identifying individuals—i.e., sources of information—who might in Waymo’s 

view supply inculpatory information about Mr. Levandowski’s move to Uber. These implicit 

statements are thus potentially incriminating and the Fifth Amendment privilege therefore 

applies. See In re Grand Jury Subpoena, 383 F.3d at 913.

Waymo’s reliance on Moore v. Gillead Scis., Inc., No. C 07-03850 SI, 2011 U.S. Dist. LEXIS 

132408 (N.D. Cal. Nov. 16, 2011), is misplaced. The district court in Moore apparently 

construed Hubbell to hold that possession of requested documents must itself be a crime in order 

to implicate the Fifth Amendment privilege. Id. at *19-21. But that is not the law. The proper 

question is whether the tacit testimony involved in producing documents could provide a link in 

the chain to other inculpatory information. Hubbell, 530 U.S. at 38. Here, Waymo seeks the

documents in order to attempt to prove what it believes was Levandowski’s theft of trade 

secrets. If Waymo is correct, then Mr. Levandowski’s implicit testimony as to the documents’

existence and location would provide a leg up to a prosecutor attempting to develop a case 

against him.

Waymo has also failed to meet its burden to establish the “foregone conclusion” exception, 

which requires establishing that the government has independent knowledge of the information 

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that production would implicitly provide. See Bright, 596 F.3d at 692; In re Grand Jury 

Subpoena, 383 F.3d at 910-12. Waymo has submitted no evidence to demonstrate that the 

location and identification of the emails it seeks are foregone conclusions to the government. 

Moreover, Waymo fails to demonstrate that it is a foregone conclusion that the government can 

“establish that it can independently verify that the compelled documents are in fact what they 

purport to be.” In re Grand Jury Subpoena, 383 F.3d at 912 (quotation marks omitted). Waymo 

has made no suggestion that it can meet such a burden—and it cannot. To the extent remaining

communications that are responsive to Request No. 3 exist, the Constitution forbids the Court 

from requiring Mr. Levandowski to ease the government’s burden of proving the authenticity of 

the communications by making him produce the records.

D. Under Fisher, Any Documents Mr. Levandowski Provided to Stroz are 

Protected by the Fifth Amendment and the Attorney-Client Privilege

In Fisher, the Supreme Court recognized an essential corollary to the “act of production”

doctrine: If the government cannot constitutionally compel a defendant to produce an item, then 

the attorney-client privilege prohibits the government from compelling it from the defendant’s 

attorney—so long as the defendant had transferred the material to his attorney for the purpose of 

obtaining legal advice. Fisher, 425 U.S. at 404 (“[W]hen the client himself would be privileged 

from production of the document . . . the attorney having possession of the document is not 

bound to produce.” (internal quotation marks omitted)). The Ninth Circuit has explained 

Fisher’s rationale: “The attorney-client privilege and the interests it protects would be ill-served 

by holding that [the client] walked into his attorney’s office unquestionably shielded with 

the [F]ifth [A]mendment’s protection, and walked out with something less.” In re Grand Jury 

Proceedings on Feb. 4, 1982, 759 F.2d 1418, 1420 (9th Cir. 1985) (quotation marks omitted).

Here, there is no question that the Fifth Amendment protects against compulsion of the aboverequested materials directly from Mr. Levandowski. And the record establishes that he provided 

materials to Stroz Friedberg for the purpose of obtaining legal advice as part of the joint defense 

effort.

1 See, e.g., Dkt. 574; Dkt. 583. As of at least March 11, 2016, Mr. Levandowski was a 

member of a valid joint-defense agreement. Id.; Dkt. 381 ¶8. Stroz was retained by members of 

that joint-defense agreement for the express purpose of assisting the joint-defense parties in 

preparing for potential litigation. A joint-defense or common interest agreement “establishes an 

implied attorney-client relationship” between each of the attorneys and parties involved. United 

States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000). Any materials Mr. Levandowski provided to 

Stroz were provided subject to those agreements. Dkt. 574; Dkt. 583. Thus, because both 

prongs of Fisher are met, any materials Mr. Levandowski provided to Stroz are protected from 

disclosure both by his Fifth Amendment privilege and his attorney-client privilege. See United 

States v. Sideman & Bancroft, LLP, 704 F.3d 1197, 1201-02 (9th Cir. 2013) (the Fifth 

Amendment protection “extends to prevent an individual’s attorney from being compelled to 

produce documents if that production would violate the individual’s Fifth Amendment rights”).

 

1 Mr. Levandowski incorporates by reference his separate pleadings establishing the factual and legal 

bases for the privileged nature of communications he had with Stroz Friedberg. Mr. Levandowski 

acknowledges that Magistrate Judge Corley has ruled otherwise. Dkt. 566 at 11-13. He summarizes his 

position here as he and the Defendants have lodged objections to the Court’s order with Judge Alsup, Dkt.

574, 572, 577, and those objections are currently pending.

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Respectfully submitted,

/s/ Ismail J. Ramsey

Ismail Ramsey

RAMSEY & EHRLICH LLP

Counsel for Non-Party Anthony Levandowski

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

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