1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WAYMO’S MOTION IN LIMINE NO. 4

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, 

vs. 

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC, 

Defendants. 

CASE NO. 3:17-cv-00939 

PLAINTIFF WAYMO LLC’S MOTION IN 

LIMINE NO. 4 

Case 3:17-cv-00939-WHA Document 913 Filed 07/17/17 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-1-

WAYMO’S MOTION IN LIMINE NO. 4

Pursuant to the Court’s Order of July 11, 2017 (Dkt. 874), Plaintiff Waymo LLC (“Waymo”) 

respectfully files the fourth proposed motion in limine from Waymo’s Ordered List of Potential in Limine 

Motions (Dkt. 851). 

4. To preclude any argument, testimony, or evidence about efforts taken in response to 

the Court’s Preliminary Injunction Order, including to preclude any reference to the 

questionnaires and witness interviews Defendants did during the litigation. 

The Court should exclude any argument, testimony, or evidence regarding Defendants’ efforts 

during the litigation to try to locate the “downloaded materials,” including any reference to the 

thousands of questionnaires and witness interviews Defendants and their counsel supposedly 

conducted during the litigation. 

First, permitting Defendants to raise this issue would open the door for Waymo to explain to 

the jury why Defendants conducted the investigations at issue — namely, that these investigations 

were conducted in response to the Court’s March 16 Expedited Discovery Order (Dkt. 61) and May 11 

Preliminary Injunction Order (Dkt. 426). If Defendants argue that they conducted these broad 

investigations, then Waymo must be allowed — as a matter of simple fairness — to tell the jury that 

Defendants only conducted these investigations because they were ordered to do so. To avoid a timeconsuming rehashing of the Court’s Orders and Defendants’ responses thereto, the better course 

would be to preclude reference to Defendants’ investigations and the Orders that spawned them. 

Second, given that Defendants have withheld the relevant questionnaires and other documents 

relating to their post-litigation investigations on the basis of privilege or work product, Defendants

should not be permitted to present the purported results of those investigations. Where a party asserts 

privilege over a particular subject matter, it is appropriate to preclude the litigant from later waiving 

the privilege or offering evidence on related subject matter. See, e.g., Universal Elecs., Inc. v. 

Universal Remote Control, Inc., No. 12-cv-00329-AG , 2014 WL 8096334, at *8 (C.D. Cal. Apr. 21,

2014) (where plaintiff previously asserted attorney-client privilege over certain subjects, “[c]ertainly 

Plaintiff cannot now provide answers to those questions”); Edward Lowe Indus., Inc. v. Oil–Dri Corp. 

of Am., No. 94-C-7568, 1995 WL 609231, at *5 (N.D. Ill. 1995) (“[B]y waiting until after the close of 

discovery to waive its attorney-client privilege, it was precluded from asserting an advice of counsel

defense.”). This usual rule applies all the more strongly in this case, where the Court specifically 

Case 3:17-cv-00939-WHA Document 913 Filed 07/17/17 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-2-

WAYMO’S MOTION IN LIMINE NO. 4

ordered Defendants to decide by June 1 whether to waive any privilege, “on pain of preclusion 

thereafter.” (Dkt. 438 at 1:10.) If Defendants wanted to offer the “results” of their investigations as 

evidence in this case, they had to produce the entire results of those investigations by June 1, which

they did not do. 

Third, it appears that the only individuals with personal knowledge of the relevant 

investigations are MoFo attorneys, whom Defendants say they will not call as trial witnesses. (Dkt. 

809.) For this reason as well, the Court should exclude any argument, evidence, or testimony 

regarding these investigations. Fed. R. Evid. 602.

DATED: July 17, 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 913 Filed 07/17/17 Page 3 of 3