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 

June 9, 2017 

VIA ECF 

The Honorable Jacqueline Scott Corley 

United States Magistrate Judge 

United States 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., N.D. Cal. Case No. 3:17-cv-00939-WHA 

 

Dear Judge Corley, 

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, Defendant Otto Trucking 

LLC (“Otto Trucking”) respectfully submits this Motion to Quash Plaintiff Waymo LLC’s 

(“Waymo”) subpoena served upon non-party Stroz Friedberg LLC (“Stroz”) on May 10, 2017 

for the production of documents and things (the “Subpoena”).1 

Through the Subpoena, Waymo improperly seeks privileged information from non-party 

Stroz, an investigation firm retained by Defendants in anticipation of litigation. At the outset 

that Defendants Uber Technologies, Inc. (“Uber”), Ottomotto LLC (“Ottomotto”), and Otto 

Trucking contemplating entering into a deal, they recognized the need to undertake a due 

diligence review—as Stroz had done—to jointly prepare a defense should Waymo decide to 

bring suit. Thus, and as explained below, Stroz’s factual investigation and impressions are 

protected under the attorney-client privilege and Defendant’s joint defense and common interest 

privileges. 

I. Beginning In February 2016, Defendants Understood They Could Be Forced To 

Defend The Uber–Otto Acquisition, And Therefore Engaged Stroz In Anticipation 

Of Their Legal Defense. 

In February 2016, Uber, Ottomotto, and Otto Trucking executed a Term Sheet that set 

forth the terms of Uber’s potential acquisition of Otto. Decl. of Eric A. Tate, ECF No. 370 

 

1 Following conferences with Special Master Cooper, the parties agreed to an omnibus briefing schedule 

regarding the enforcement of the Subpoena. The parties agreed that Defendants may move to quash or for 

protective order by June 9, 2017, and Waymo may file an opposition to such motion by June 15, 2017. 

The parties understand that Special Master Cooper has communicated the briefing schedule to the Court.

Case 3:17-cv-00939-WHA Document 580 Filed 06/09/17 Page 1 of 6
The Honorable Jacqueline Scott Corley 

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(“Tate Decl.”) ¶ 5. Defendants were aware at the time that because of the competition in 

developing autonomous driving technology, and because the deal involved companies formed by 

two ex-Google employees, such an acquisition had the potential to invite intense litigation from 

Waymo. Id. ¶ 3. 

For this reason, Defendants, along with Anthony Levandowski and Lior Ron 

(collectively, the “Joint Defense Group”), agreed to enter into a joint defense and common 

interest agreement. Id. ¶ 7. The parties confirmed that agreement orally shortly following 

executing the Term Sheet on February 24, 2016, and once again through email the following 

day, on February 25, 2016. Id. ¶¶ 7–8, Ex. 1 (Email correspondence from Adam Bentley to Eric 

A. Tate dated February 25, 2016). Even though the parties signed the Joint Defense, Common 

Interest, and Confidentiality Agreement (the “JDA”) on April 11, 2016, the JDA merely 

memorialized what Defendants were concerned with all along: preparing for potential litigation 

in the acquisition. Id. ¶ 11, Ex. 2 at 2 (Joint Defense, Common Interest and Confidentiality 

Agreement memorializing the parties’ “pre-existing understanding and oral agreement” 

(emphasis added)). 

Thus from the inception—months before the parties executed the JDA—the Joint 

Defense Group recognized the need to take steps to jointly evaluate their legal positions against 

Waymo and strengthen their defenses should Waymo decide to bring suit. Id. They retained and 

directed Stroz to conduct the due diligence review specified in the Term Sheet. Id. ¶ 9. Stroz 

was retained to “engage its professional services in conducting an investigation to ascertain 

facts” that “informed the potential legal exposure and claims that could be brought by Google 

related to Uber’s potential acquisition of Otto.” Id.; see also id. Ex. 2 at 2. Moreover, under 

Defendants’ engagement agreement with Stroz, the parties understood that information Stroz 

gathered—including its factual investigation and impressions—would be kept confidential. 

Decl. of Eric Friedberg, ECF No. 380 (“Friedbeg Decl.”) ¶¶ 6–7. 

II. The Record Evidence Establishes That Information Gathered And Impressions 

Made In The Course Of Stroz’s Investigation Are Protected Under The AttorneyClient Privilege. 

Given the context in which Stroz was retained, Waymo may not seek information Stroz 

gathered and developed in the course of its investigation because it is protected by the attorneyclient privilege. As explained above, Stroz was retained to “engage its professional services in 

conducting an investigation to ascertain facts” that “informed the potential legal exposure and 

claims that could be brought by Google related to Uber’s potential acquisition of Otto.” The 

conversations between Anthony Levandowski and Lior Ron, Otto Trucking’s principals, are 

precisely the type of communications that are protected by the attorney-client privilege under the 

Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383, 390–91 (1981) 

(explaining that the attorney-client “privilege exists to protect not only the giving of professional 

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The Honorable Jacqueline Scott Corley 

June 9, 2017 

Page 3 

advice to those who can act on it but also the giving of information to the lawyer to enable him to 

give sound and informed advice.”). Here, Stroz was acting as an agent, through which its 

communications are privileged. Segerstrom v. United States, No. 00-cv-0833, 2001 WL 283805, 

at *2 (N.D. Cal. Feb. 6, 2001) (“[C]onfidential communications passing through persons acting 

as the attorney or client’s agent are also covered by the privilege.”). 

In the Court’s June 5 Order on Waymo’s Motion to Compel (the “June 5 Order,” Dkt. 

No. 549), the Court concluded that the Stroz Report and exhibits were not protected by the 

attorney-client privilege because “Stroz’s interview of Levandowski was performed in 

Levandowski’s individual capacity, and not as an Otto executive.” But that conclusion relied in 

part on the incentives under the Term Sheet for Mr. Levandowski to provide information to Stroz 

to ensure that he was indemnified, and letters from Mr. Levandowski’s counsel to Stroz 

specifying conditions for his participation in the investigation. Even if, however, Mr. 

Levandowski had personal incentives to participate in the investigation, and personal interests to 

protect in so participating, that does not diminish the fact that communications Mr. Levandowski 

and others made to Stroz were needed for Defendants’ counsel to provide legal advice. That an 

individual may have his or her own individual reasons to participate in a company’s internal 

investigation cannot be the reason to vitiate the company’s attorney-client privilege. In fact, as 

explained above, the reason for Stroz to conduct its investigation at all, including of Mr. 

Levandowski, was so that the parties may form a defense against potential litigation brought by 

Waymo. 

III.Defendants Shared A Common Legal Interest In The Stroz Investigation Because 

They Recognized The Need To Undertake A Due Diligence Review To Jointly 

Prepare A Defense Should Waymo Decide To Bring Suit. 

The Joint Defense Group shared a common legal interest in defending from possible 

litigation months before the JDA was even executed. In connection with the Term Sheet in 

February 2016, the parties contemplated the need to join together in a legal defense. They made 

that agreement orally, and soon thereafter memorialized that agreement in writing in an email. 

Tate Decl. ¶¶ 8, 11, Exs. 1, 2. Defendants’ counsel, O’Melveny & Myers (“OMM”) and 

Morrison & Foerster (“MoFo”), engaged Stroz to conduct a factual investigation so that OMM 

and MoFo could advise the parties to the JDA concerning potential litigation. Id. Ex. 3 at 2. The 

JDA stated that the parties “share[d] a common interest in resolving any issues concerning the 

Transaction under all applicable laws and that a joint defense effort will promote evaluation and 

preparation of their respective defenses.” Id. Ex. 2 at 1. 

The common interest/joint defense doctrine does not make a document or communication 

privileged; rather, it is a doctrine that prevents waiver of a pre-existing privilege if the privileged 

information is shared only with those with a legal interest. “The interests of the parties involved 

in a common defense need not be identical, and, indeed may even be adverse in some respects. 

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The Honorable Jacqueline Scott Corley 

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The joint-defense exception, however, protects only those communications that are part of an ongoing and joint effort to set up a common defense strategy.” Rembrandt Patent Innovations, 

LLC v. Apple Inc., No. C 14-05093 WHA, 2016 WL 427363, at *7 (N.D. Cal. Feb. 4, 2016) 

(citation omitted). Defendants—Uber, OttoMotto, Otto Trucking, Mr. Levandowski, and Mr. 

Ron—had, from the outset, recognized the real and present risk of litigation in connection with 

the Uber-Otto acquisition. They were concerned that the transaction would invite a lawsuit from 

Waymo and, on that basis, sought legal counsel to evaluate legal risks involved in the 

transaction, to anticipate potential defenses, and to explore legal strategies in responding to such 

litigation. In other words, as Judge Alsup explained in Rembrandt, Defendants were “part of an 

on-going and joint effort to set up a common defense strategy.” The Stroz investigation was 

covered under the attorney-client privilege, and the Joint Defense Group shared common legal 

interests in the privileged nature of that information. 

In the June 5 Order, the Court’s finding of a lack of common interest among the Joint 

Defense Group to the JDA was based largely on the conclusion that the Term Sheet was not 

binding, and Uber “had no obligation to consummate the transaction.” But the law does not 

require a binding agreement for there to be a common interest among parties considering a 

transaction. It is enough that the parties were in the late stages of negotiation when they jointly 

retained Stroz. The Defendants knew that they would likely be sued by Waymo if the merger 

were consummated. And, they shared a common legal interest in preparing to defend that 

litigation. Indeed, the stated purpose of the Stroz investigation was to enable the parties “to 

understand certain factual matters potentially relevant to potential litigation and related matters.” 

Tate Decl. Ex. 2 at 2. That those factual matters might also have been relevant to 

indemnification between the JDA parties does not undermine their joint interest in defending 

against litigation. See Callwave Communications, LLC v. Wavemarket, Inc., No. 14-cv- 80112, 

2015 WL 831539, at *4 (N.D. Cal. Feb. 23, 2015). 

The June 5 Order also concluded that even if the JDA parties shared a common legal 

interest, the Stroz investigation was intended for due diligence purposes. However, this 

conclusion is directly contrary to the Stroz engagement letter itself, which describes the purpose 

of Stroz’s engagement as conducting a factual investigation in preparation for litigation. Tate 

Decl. Ex. 2 at 2. It further conflicts with extensive testimony that Stroz was retained to prepare 

for a suit from Waymo—testimony that the June 5 Order did not address. See, e.g., id. ¶ 13; 

Decl. of John Gardner, ECF No. 381 ¶ 6; Decl. of Justin Suhr, ECF No. 378 ¶¶ 9–10; Friedberg 

Decl. ¶ 3. Moreover, even if Stroz’s engagement served some due diligence purpose in addition 

to its role in pre-litigation factfinding, that does not undermine the common legal interest. In re 

Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004). For instance, in Hewlett-Packard Co. 

v. Bausch & Lomb, Inc., the court held that a common legal interest requires only that the interest 

not be “solely commercial.” 115 F.R.D. 308, 309 (N.D. Cal. Apr. 9, 1987) (emphasis added). 

Similarly, in Rayman v. American Charter Federal Savings & Loan Association, the court held 

that parties negotiating a merger had a common legal interest in addressing litigation even 

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The Honorable Jacqueline Scott Corley 

June 9, 2017 

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though the sharing of the documents also served to allow one of the entities to “be more fully 

informed of the potential liability it would take on by merging with” the other company. 148 

F.R.D. 647, 653 (D. Neb. May 12, 1993). 

*** 

For the foregoing reasons, Waymo’s subpoena served on non-party Stroz improperly seeks 

privileged information. Otto Trucking respectfully requests an Order from the Court 

GRANTING the Motion to Quash the Subpoena. 

Respectfully submitted, 

_/s/ Neel Chatterjee______________ 

Neel Chatterjee 

GOODWIN PROCTER LLP 

Attorneys for Defendant 

OTTO TRUCKING LLC 

cc: All counsel of record (via ECF) 

Case 3:17-cv-00939-WHA Document 580 Filed 06/09/17 Page 5 of 6
The Honorable Jacqueline Scott Corley 

June 9, 2017 

Page 6 

CERTIFICATE OF SERVICE 

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the 

United States District Court for the Northern District of California by using the CM/ECF system 

on June 9, 2017. I further certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by the CM/ECF system. 

I certify under penalty of perjury that the foregoing is true and correct. Executed this 9th 

day of June 2017. 

/s/ Neel Chatterjee

 Neel Chatterjee

Case 3:17-cv-00939-WHA Document 580 Filed 06/09/17 Page 6 of 6