01980-00104/9310194.6

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May 24, 2017

VIA ECF

Magistrate Judge Jacqueline Scott Corley

USDC, 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 Magistrate Judge Corley:

In its May 11, 2017 Order Granting in Part and Denying in Part Plaintiff’s Motion for Provisional 

Relief (“PI Order”), the Court granted Waymo “further expedited discovery in aid of possible 

further provisional relief” and stated: “[a]fter Waymo has exhausted its expedited discovery, it 

may continue with normal discovery.” (Dkt. 433, at 26.) On May 15, 2017, this Court further 

clarified that: “Waymo must first proceed with the expedited discovery ordered in the district 

court’s preliminary injunction order. Once Waymo exhausts the expedited discovery, it may 

continue discovery with the standard deadlines. . . . Further, Waymo does not need to propound 

new discovery requests if it wishes the expedited schedule to apply to previously-requested 

discovery.” (Dkt. 441, at 1.) As to third party discovery, the Court said that Waymo’s May 11, 

2017 subpoena to Gorilla Circuits (“Gorilla Subpoena”) may proceed, but the May 15 Order was 

silent as to Waymo’s May 10, 2017 subpoena to Stroz Freidberg (“Stroz Subpoena”). Id. The 

Court also stated: “[t]his discovery phasing may be revisited depending on the progress of the 

expedited discovery.” Id. Defendants now contend that, with the exception of the Gorilla

Subpoena, Waymo is precluded from taking any third party discovery during expedited discovery. 

Waymo respectfully requests that the Court confirm that Waymo is entitled to use some of its

expedited document requests and depositions to pursue documents and testimony from third 

parties during the expedited discovery phase. 

This dispute arose with respect to the Stroz Subpoena. The Court has made clear that the 14,000 

stolen documents should be returned to Waymo. (See Dkt. 61, at 2 (ordering production for 

inspection of all files and documents downloaded by Levandowski, Kshirsagar, or Raduta); Dkt. 

433, at 23, #2 (ordering return of downloaded materials).) The evidence suggests Stroz has copies 

of some or all of the 14,000 misappropriated materials. (See Dkt. 466-2 (Uber letter to 

Levandowski, saying “You should understand ‘downloaded materials’ to include all copies, 

excerpts, and summaries thereof, whether in . . . the possession of (a) Stroz Friedberg LLC . . .”); 

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Dkt. 494 (Defendants opposing May 31 deadline to return stolen documents as it pertains to 

Stroz).) As Your Honor is aware, Defendants and Levandowski not returned any stolen 

documents. With respect to the exhibits to the Stroz report, Defendants claim they are “opinion” 

work product because their selection reflects attorney input. The Stroz document requests would 

obviate that (meritless) argument, as Stroz likely has the larger set of stolen documents, unaffected 

by the alleged attorney input. Following the May 15 Order, Waymo told Defendants it wants to 

use two of its 28 expedited document requests to obtain documents from Stroz.

1

 These documents 

are important to determining whether Stroz has or had possession of the stolen documents. The 

evidence suggests that Defendants and/or Levandowski housed the misappropriated materials with 

Stroz, but Defendants contend Waymo cannot take expedited discovery to verify that fact. 

This issue also impacts Waymo’s ability to obtain expedited deposition testimony from third 

parties. Waymo may want to depose at least one former Uber employee during expedited 

discovery. Because the former employee is a third party, Waymo will need to subpoena this 

individual. Under Defendants’ theory that, with the exception of the Gorilla Subpoena, all Waymo 

third party discovery is stayed, Waymo would not be permitted to do so. 

The Court previously allowed the parties to use expedited discovery to obtain third party discovery. 

At the March 16, 2017 Case Management Conference, Judge Alsup granted the parties additional 

depositions and stated that they could use those depositions to depose third parties. (3/16/17 

Hearing Tr., 11:11-12:4) (“So both sides have the right to use one of these three depositions to 

subpoena somebody.”) Similarly here, Waymo should be allowed to use two of its 28 expedited 

discovery requests to obtain documents from Stroz. And Waymo should be allowed to use some 

of its 7 expedited depositions to depose third parties. Indeed, the Court ruled that Waymo is 

entitled to “further expedited discovery,” suggesting that the same rules for third parties that 

applied before continue to apply. Precluding Waymo from taking this discovery prejudices 

Waymo’s ability to obtain the discovery needed “in aid of possible further provisional relief.” 

Defendants’ only support for their position is this Court’s May 15 Order. Defendants contend that, 

by only referencing the Gorilla Subpoena, this Court held that Waymo cannot pursue the Stroz 

Subpoena or any other third party discovery. Defendants are overreaching. In their May 15, 2017 

letter brief, Defendants did not contend that the Stroz Subpoena should be stayed pending 

expedited discovery. (Dkt. 439.) Nor did Defendants contend that all third party discovery should 

be stayed. Rather, Defendants stated they did not object to continued pursuit of the Gorilla 

Subpoena, but the Stroz Subpoena “should be stayed pending the resolution of [Waymo’s] motion 

to compel,” now scheduled to be heard on May 25. Thus, there is no support for Defendants’ 

conclusion that this Court held that all third party discovery is stayed until normal discovery. 

Even if that was the Court’s intent, Waymo requests that the Court revisit this phased discovery 

for third parties, as it said it was willing to do (Dkt. 441), and confirm that Waymo may use some 

of its expedited discovery to pursue documents and testimony from third parties. 

 

1

 These requests seek: “All agreements between YOU and any PERSON REGARDING 

LEVANDOWSKI, Lior Ron, the DUE DILIGENCE REPORT (or the subject matter discussed 

therein), OTTO TRUCKING, OTTOMOTTO, or the MISAPPROPRIATED MATERIALS”, 

and “Any “original materials provided by Client or Uber or Ottomotto, to Stroz Friedberg” 

(referenced in Exhibit 3 to the May 8, 2017 Declaration of Eric A. Tate in Support of 

Defendants’ Opposition to Waymo’s Motion to Compel, attached hereto as Exhibit D).”

Case 3:17-cv-00939-WHA Document 498 Filed 05/24/17 Page 2 of 3
01980-00104/9310194.6 2

Respectfully,

/s/ Charles K. Verhoeven

Charles K. Verhoeven

cc: All counsel of record; Special Master John Cooper

01980-00104/9310194.6

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