REDACTED VERSION OF 

DOCUMENT SOUGHT TO BE 

SEALED 

August 31, 2017 

Honorable Jacqueline Scott Corley 

U.S. District Court, Northern District of California 

450 Golden Gate Avenue 

San Francisco, CA 94102 

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

Dear Judge Corley: 

Defendants Uber Technologies Inc. and Ottomotto LLC (collectively, “Uber”) move to compel 

Waymo to answer and supplement its responses to Uber’s Request for Admission No. 40 and 

Uber’s Interrogatory Nos. 20, 24, and 29, and to produce a document for which Waymo has 

wrongfully designated a portion as privileged. The Special Master authorized this motion. 

Request for Admission No. 40: Evidence of Levandowski Downloading Waymo Material 

After Joining Uber. The central allegation in this case has always been that Levandowski 

downloaded files with Waymo trade secrets, and that Uber used those trade secrets in its 

autonomous vehicle program. To interrogate the basis of this allegation, Uber propounded 

Request for Admission (“RFA”) No. 40 asking Waymo to admit “that after Anthony 

Levandowski signed his employment agreement with Uber in August 2016 (UBER00017083), 

he did not download any files from Waymo or Google.” (Pritt Decl. Ex. 4 at 4.) Waymo denied 

the RFA on the basis that it “lacks sufficient knowledge to either admit or deny” if Levandowski 

downloaded files from Waymo or Google in or after August 2016. (Id.) This response is not 

sufficient under Federal Rule of Civil Procedure 36 and is not credible in light of the 

investigation Waymo conducted—and relies on—in this case. 

Rule 36 permits a party to state that it lacks sufficient knowledge “if the party states that it has 

made reasonable inquiry and that the information it knows or can readily obtain is insufficient to 

enable it to admit or deny.” “In order to use lack of knowledge as a reason for neither admitting 

or denying a request, a party must both assert that it has made a reasonable inquiry and that the 

information known or readily obtainable by the party is insufficient to fashion a response.” 

Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 15 (D.D.C. 2007); see, e.g.,

Lauter v. Anoufrieva, No. CV 07-6811 JVS(JC), 2009 WL 10672595, at *2 (C.D. Cal. Mar. 30, 

2009) (same). Waymo’s response does not state that it made a reasonable inquiry into this RFA 

or that the information known or obtainable by Waymo is insufficient to admit or deny the RFA. 

Counsel for Waymo stated that “Waymo is not aware of whether Levandowski downloaded files 

from Waymo or Google after signing his Uber employment agreement,” and argued the 

information at issue in RFA 40 is uniquely in Levandowski’s possession. (Pritt Decl. Ex. 6 at 3 

& ¶ 8.) This position is not tenable in light of Waymo’s forensic investigation into Levandowski 

(and others), and Waymo’s claims that it imposes robust security and confidentiality measures to 

protect its files. “A party may not refuse to admit or deny a request for admission based upon a 

lack of personal knowledge if the information relevant to the request is reasonably available to 

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Uber’s Motion to Compel RFA & ROG Responses 

Case No. C 17-00939 WHA 

him.” K.C.R. v. Cnty. of Los Angeles, No. CV 13-3806 PSG SSX, 2014 WL 3433925, at *5 

(C.D. Cal. July 14, 2014) (quoting Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th 

Cir. 1981)). The relevant information to respond to RFA 40 is reasonably available to Waymo. 

Waymo’s claimed inability to discover if Levandowski downloaded Waymo or Google files after 

joining Uber is astonishing. Waymo claims to have both conducted a valid forensic investigation 

and to have robust security measures in place, which one would reasonably expect to prevent a 

former employee from accessing trade secrets from company networks. The fact is that Waymo 

lacks any evidence or even grounds for suspicion that Levandowski downloaded any Waymo 

files after he joined Uber, but Waymo does not want to admit it. Waymo seeks to avoid 

admitting this fact by claiming it lacks sufficient knowledge. Rule 36 does not permit such 

willful blindness. 

When a party’s RFA response fails to satisfy Rule 36, the Court may “order either that the matter 

is admitted or that an amended answer be served.” Uber respectfully requests that the Court order 

RFA 40 admitted, or in the alternative that Waymo admits it lacks the ability to prevent former 

employees from accessing confidential Waymo information from Waymo’s computer networks. 

Interrogatory Nos. 20 and 24: Trade Secret Information of a Competitor at Waymo, 

Google, and Alphabet. The Court ordered Waymo to respond to Uber’s Interrogatory Nos. 20 

and 24, which ask Waymo to describe efforts it has taken to prevent other companies’ 

confidential, proprietary or trade secret information from entering Waymo, including any 

investigations or forensic analysis Waymo performed at any time, including in connection with 

M&A transactions and employee hires, and any instances in which such information entered 

Waymo. (Dkt. 1276 at 2.) The Court held that Interrogatory No. 24 “is directly related to 

Waymo’s theory of liability,” and No. 20 “seeks relevant information.” (Id.; see also Dkt. 1410 

at 2 (“how Waymo conducts its own acquisitions is relevant to the claims and defenses in this 

action”).) The Court limited Waymo’s response to Interrogatory No. 20 to Google’s driverless 

car program, but ordered Waymo to “disclose if Alphabet/Google in any division ever performed 

forensic due diligence.” (Dkt. 1276 at 2.) 

Waymo responded on August 24 with examples of when Waymo investigated employees to 

determine if they possessed a former employer’s confidential information. Waymo claimed 

privilege over the investigations and made no mention of any investigations in connection with 

M&A transactions or employee hires, or of whether Google or Alphabet has ever performed 

forensic due diligence. (Pritt Decl. Ex. 2 at 6, 9.) Waymo supplemented its response on August 

30 to say the “examples” were the only such investigations Waymo performed. (Id. at 7, 10.) 

These responses are inadequate. 

First, Uber’s interrogatories concern Waymo’s and Alphabet/Google’s efforts to prevent other 

companies’ confidential, proprietary or trade secret information from coming into Waymo’s or 

Alphabet/Google’s possession at any time, including in connection with M&A transactions and 

employee hires. Yet Waymo’s responses concern just after-the-fact investigations of current 

employees. It is unclear whether Waymo limited its responses to exclude efforts during M&A 

transactions or hiring employees. It appears, however, that Waymo and Alphabet/Google do not

take any efforts to prevent other companies’ confidential, proprietary or trade secret information 

from entering Waymo or Alphabet/Google. Indeed, during the meet and confer process Waymo 

represented that 

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Uber’s Motion to Compel RFA & ROG Responses 

Case No. C 17-00939 WHA 

 (Pritt Decl. Ex. 3 at 3.) These responses are remarkable in light of Waymo’s litigation 

theme that Uber failed to take any measures to ensure that Waymo’s former employees did not 

bring confidential or trade secret information to Uber. (See Dkt. 1372 at 3.) At a minimum, 

Waymo should be ordered to amend its responses to state that neither it nor Alphabet/Google 

takes any measures during M&A transactions or when hiring employees to prevent the entrance 

of another companies’ confidential, proprietary or trade secret information. 

Second, Waymo’s response to Interrogatory No. 20 does not “disclose if Alphabet/Google in any 

division ever performed forensic due diligence,” as the Court ordered. Waymo’s counsel has 

represented that its response “is consistent with that direction” and that the Court’s order was 

limited to due diligence in the context of investigations. (Pritt Decl. Ex. 6 at 2.) But the 

interrogatory response does not mention one way or the other whether Alphabet/Google has ever 

performed forensic due diligence, let alone whether it has done so in the context of 

investigations. If Alphabet/Google has not performed forensic due diligence, in any context, it 

should say so in its response. Further, the interrogatory is not limited to “investigations,” but any 

“efforts” taken. And even if the Court’s order that Waymo disclose whether Alphabet/Google 

has ever performed forensic due diligence were limited to a particular context, Waymo should be 

required to disclose whether Alphabet/Google has ever performed forensic due diligence in the 

context of M&A transactions, as that information is directly responsive to Interrogatory No. 18. 

Third, Waymo states that it has a process for 

but then hides any details about that process under the cloak 

of privilege beyond stating that Waymo 

(Pritt Decl. Ex. 2 at 7.) Waymo claims that it considers the 

 to be privileged, but that the information was 

 from Waymo’s premises and control. (Id. at 8, 9.) This selective disclosure is 

improper, as is Waymo’s attempt to shroud simple facts—such as the 

—in privilege. Waymo should be required to set forth all of the steps it took in these 

investigations, whether the information it discovered was proprietary or trade secret, and what 

Waymo did with that information (i.e., whether it was retained, destroyed, or returned). (Pritt 

Decl. Ex. 6 at 2.) Waymo is not permitted to use as a sword select aspects of its investigations—

like firing employees and information—while withholding the rest. 

Fourth, Waymo responds to Interrogatory No. 24 that the investigations described

(Pritt Decl. Ex. 2 at 10.) But this interrogatory is not limited to 

Waymo, and includes whether Alphabet/Google has ever discovered that another company’s 

confidential, proprietary or trade secret information came into Alphabet/Google’s possession. 

Waymo should be required to disclose whether Alphabet/Google is aware that any such 

information entered any of their divisions or came into their possession, and, if so, to describe 

those instances. 

Waymo’s refusal to adequately respond to Interrogatory Nos. 20 and 24 prejudices Uber’s ability 

to defend itself because the requested but omitted information is crucial to evaluate and respond 

to Waymo’s arguments that Uber’s measures regarding trade secret information were inadequate. 

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Uber’s Motion to Compel RFA & ROG Responses 

Case No. C 17-00939 WHA 

Interrogatory No. 29: The Basis for Waymo’s Denial in Response to Certain RFAs. Uber’s 

Interrogatory No. 29 asks Waymo to “explain with specificity the basis” for its denial of any of 

Uber’s RFAs. (Prit Decl. Ex. 1 at 23.) Waymo responded to this interrogatory by explaining its 

denial of just one of the five RFAs it denied (RFA No. 9), and refused to respond regarding the 

other four denials (RFA Nos. 20, 40, 43, and 44) on the basis that the interrogatory was 

compound. (Id at 23‒24.) 

Waymo’s position is unreasonable in light of the irregular and brisk pace of discovery in this 

case. (See Dkt. 1173 (holding that “[g]iven the complexity of the case, and the short discovery 

period, allowing Uber to ask more than 25 interrogatories would have been warranted”).) Fact 

discovery in this case closed almost exactly six months after the complaint was filed. Waymo’s 

interpretation of the rules—which would require seriatim RFAs and interrogatories—would not 

have been practical. Under Waymo’s formulation, Uber would have had to serve all of its RFAs 

sufficiently in advance of the close of fact discovery so that Uber could serve interrogatories 

directed at any denials after Waymo responded to those RFAs before discovery closed. Although 

some district court decisions support such practice in the normal course, that procedure was, and 

is, unworkable in this case. Indeed, both Uber and Waymo served their final set of RFAs and 

interrogatories simultaneously on July 25, 2017—the last date on which the parties could serve 

discovery in order to receive responses before the close of fact discovery. (See Pritt Decl. ¶ 2.) 

Uber offered to drop its objection to Waymo’s refusal to offer additional information as to three 

of the four outstanding RFAs if Waymo would agree to provide a response to Interrogatory 

No. 29 explaining the basis for its denial of RFA 43 (requesting Waymo to admit “that during its 

on-site inspections at Uber, Waymo found no evidence that Uber has misappropriated Google or 

Waymo trade secrets”), but Waymo refused. The information sought in Interrogatory No. 29 and 

RFA 43 is exclusively in Waymo’s control because it concerns Waymo’s interpretation of its onsite inspections of Uber’s facilities. Waymo is seeking astronomical damages; given the 

significance of RFA 43 to Waymo’s theory of liability as to Uber, Uber’s request is proportional 

to the needs of the case. Uber requests that the Court order Waymo to respond to Interrogatory 

No. 29 by explaining the basis for its denial of RFA 43. 

Improper Privilege Claim: Waymo claims privilege over the contents of an email—produced 

on August 23, 2017, the day before fact discovery closed—that was sent to, among others, the 

distribution list @google.com, which has more than 23,000 members and can be 

accessed by all full-time employees of Waymo and Google/Alphabet. (Pritt Decl. Ex. 7 at 1, 

Ex. 8 at 3.) A party seeking to claim privilege over a communication sent to an email distribution 

list must provide “the court with adequate information to conclude that all recipients were in 

positions to have been deemed within the attorney-client relationship.” In re Universal Serv. 

Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 678 (D. Kan. 2005); see also Muro v. Target 

Corp., 250 F.R.D. 350, 364 (N.D. Ill. 2007), aff’d, 580 F.3d 485 (7th Cir. 2009) (rejecting 

assertion of privilege over document sent to distribution list because distribution list had not 

adequately been shown to be privileged: “without the identities and job descriptions of the 

persons on the distribution lists, there is no way for an opposing party to assess whether they are 

within the sphere of corporate privilege, as is required by Federal Rule of Civil Procedure 

26(b)(5)(A)”). Because Waymo has not disclosed the identities and job descriptions of the 

persons on the distribution list, it has not shown that it is entitled to invoke privilege over this 

widely disseminated communication. 

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Uber’s Motion to Compel RFA & ROG Responses 

Case No. C 17-00939 WHA 

Respectfully submitted, 

Karen L. Dunn 

Karen L. Dunn 

Counsel for Uber Technologies, Inc. and Ottomotto 

LLC 

cc: All Counsel of Record 

Special Master John Cooper 

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