United States Court of Appeals 

for the Federal Circuit ______________________ 

WAYMO LLC,

Plaintiff-Appellee

v.

UBER TECHNOLOGIES, INC., OTTOMOTTO LLC, 

OTTO TRUCKING LLC,

Defendants

ANTHONY LEVANDOWSKI,

Intervenor-Appellant

STROZ FRIEDBERG, LLC, LYFT, INC., LIOR RON,

Movants

______________________ 

2017-2235, 2017-2253

______________________ 

Appeals from the United States District Court for the 

Northern District of California in No. 3:17-cv-00939-

WHA, Judge William H. Alsup.

______________________ 

Decided: September 13, 2017

______________________ 

 CHARLES KRAMER VERHOEVEN, Quinn Emanuel Urquhart & Sullivan, LLP, San Francisco, CA, argued for 

plaintiff-appellee. Also represented by DAVID ANDREW 

PERLSON; DAVID MICHAEL COOPER, New York, NY.
2 WAYMO LLC v. UBER TECHS., INC. 

 MILES EHRLICH, Ramsey & Ehrlich LLP, Berkeley, 

CA, argued for intervenor-appellant. Also represented by 

ISMAIL RAMSEY, AMY CRAIG. 

______________________ 

Before NEWMAN, WALLACH, and STOLL, Circuit Judges. 

WALLACH, Circuit Judge.

Appellant Anthony Levandowski, an intervenor, seeks 

to prevent discovery sought by Appellee Waymo LLC 

(“Waymo”).1 Waymo sued Uber Technologies, Inc. (“Uber”), Ottomotto LLC, and Otto Trucking LLC (together, 

“Ottomotto”) in the U.S. District Court for the Northern 

District of California (“District Court”) alleging, inter alia, 

claims of patent infringement and violations of federal 

and state trade secret laws. Specifically, Waymo alleges 

that its former employee, Mr. Levandowski, improperly 

downloaded thousands of documents related to Waymo’s

driverless vehicle technology and then left Waymo to 

found Ottomotto, which Uber subsequently acquired. 

Before the acquisition closed, counsel for Ottomotto and 

Uber (but not counsel for Mr. Levandowski) jointly retained Stroz Friedberg, LLC (“Stroz”) to investigate 

Ottomotto employees previously employed by Waymo, 

including Mr. Levandowski. The resulting report (“the 

Stroz Report”) is the subject of the discovery dispute at 

issue on this appeal.

During discovery, Waymo sought to obtain the Stroz 

Report using two separate mechanisms. First, Waymo 

filed a motion to compel Uber and Ottomotto to produce 

the Stroz Report. Appellant’s App. 62. Magistrate Judge

Jacqueline Scott Corley granted Waymo’s Motion to 

 

1 Waymo spun off from Google Inc.’s (“Google”) selfdriving car project in 2016. For ease of reference, we use 

“Waymo” when referring to either Google or Waymo. 
WAYMO LLC v. UBER TECHS., INC. 3

Compel. See Waymo LLC v. Uber Techs., Inc. (Waymo I), 

No. 17-cv-00939-WHA (JSC), 2017 WL 2485382, at *1 

(N.D. Cal. June 8, 2017). Second, Waymo subpoenaed 

Stroz to obtain the Stroz Report along with the communications, documents, and devices provided to Stroz. Appellant’s App. 141–42. When Mr. Levandowski, Ottomotto, 

and Uber moved to quash the subpoena by arguing that 

the Stroz Report is subject to attorney-client privilege or 

attorney work-product protection, the Magistrate Judge 

denied the motion to quash. See Waymo LLC v. Uber 

Techs., Inc. (Waymo II), No. 17-cv-00939-WHA (JSC), 

2017 WL 2676424, at *1, *7 (N.D. Cal. June 21, 2017). 

Mr. Levandowski, Ottomotto, and Uber then filed motions

for relief from the Magistrate Judge’s orders in Waymo I

and Waymo II, which the District Court denied. See 

Waymo LLC v. Uber Techs., Inc. (Waymo III), No. C 17-

00939 WHA, 2017 WL 2694191, at *1 (N.D. Cal. June 21, 

2017) (denying relief from the Magistrate Judge’s order in 

Waymo I); Waymo LLC v. Uber Techs., Inc. (Waymo IV), 

No. C 17-00939 WHA (N.D. Cal. June 27, 2017) (Appellant’s App. 15–20) (denying relief from the Magistrate 

Judge’s order in Waymo II).2

 

2 The Magistrate Judge’s and District Court’s factual findings and analyses in Waymo II and Waymo IV do 

not differ substantively from their factual findings and 

analyses in Waymo I and Waymo III. See Appellant’s 

App. 16 (stating that, “insofar as the instant motions 

merely repeat arguments” from Waymo III, “those arguments fail for the same reasons previously stated”); Waymo II, 2017 WL 2676424, at *1 (“Much of the parties’ 

arguments are addressed in [Waymo I].”). For ease of 

reference, we thus refer to Waymo I and Waymo III, 

unless otherwise noted.
4 WAYMO LLC v. UBER TECHS., INC. 

Mr. Levandowski appeals the District Court’s denial 

of relief from the Magistrate Judge’s orders. Because Mr. 

Levandowski has failed to satisfy his burden to demonstrate entitlement to a writ of mandamus, we dismiss.

JURISDICTION

Before addressing the merits of the appeal, we must 

satisfy ourselves of our jurisdiction to receive and decide 

this petition for mandamus. See Ruhrgas AG v. Marathon 

Oil Co., 526 U.S. 574, 583 (1999). We have jurisdiction 

over “appeal[s] from . . . final decision[s] of . . . district 

court[s] of the United States . . . in any civil action arising 

under . . . any Act of Congress relating to patents.” 28 

U.S.C. § 1295(a)(1) (2012). In accordance with the finaljudgment rule, “a party may not take an appeal [pursuant 

to § 1295(a)(1)] until there has been a decision by the 

district court that ends the litigation on the merits and 

leaves nothing for the court to do but execute the judgment.” Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 

1305, 1308 (Fed. Cir. 2013) (en banc) (internal quotation 

marks and citation omitted).3 We also have jurisdiction 

 

3 The collateral order doctrine provides a narrow 

exception to the final-judgment rule and grants appellate 

courts jurisdiction over certain orders of district courts. 

See Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1707, 1708 

n.3 (2017). “To come within the ‘small class’ of decisions 

excepted from the final-judgment rule by [the collateral 

order doctrine], the order must conclusively determine the 

disputed question, resolve an important issue completely 

separate from the merits of the action, and be effectively 

unreviewable on appeal from a final judgment.” Coopers 

& Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote 

and citations omitted); see Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 546 (1949) (discussing the 

“small class” of decisions “which finally determine claims 
WAYMO LLC v. UBER TECHS., INC. 5

over three categories of interlocutory orders from district 

courts: (1) those involving injunctions, receiverships, or 

admiralty, 28 U.S.C. § 1292(a), (c)(1); (2) those certified 

for immediate appeal by the district court, id. § 1292(b), 

(c)(1); and (3) those involving patent infringement judgments that are final except for an accounting,4 id.

§ 1292(c)(2). 

Mr. Levandowski acknowledges that the District 

Court’s orders in Waymo III and Waymo IV are not appealable final judgments pursuant to § 1295(a)(1). Oral 

Arg. at 9:05–10, http://oralarguments.cafc.uscourts.gov/

default.aspx?fl=2017-2235.mp3 (“Under the doctrine as I 

understand it, I don’t think [the orders] are final.”). He 

also acknowledges that those orders do not qualify as

 

of right separable from, and collateral to, rights asserted 

in the action, too important to be denied review and too 

independent of the cause itself to require that appellate 

consideration be deferred until the whole case is adjudicated”). Mr. Levandowski does not contend that the 

collateral order doctrine applies here, see generally Appellant’s Br.; however, even if he had, our analysis would 

apply with equal force, see infra Section I.A–B (holding 

that Mr. Levandowski has failed to establish that he lacks 

alternative means to attain relief from the discovery 

orders and that Mr. Levandowski is not entitled to attorney-client privilege or work-product protection); see also 

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 114

(2009) (“[W]e conclude that the collateral order doctrine 

does not extend to disclosure orders adverse to the attorney-client privilege.”).

4 “An ‘accounting’ in the context of § 1292(c)(2) includes . . . . both the calculation of an infringer’s profits 

and a patentee’s damages.” Robert Bosch, 719 F.3d at 

1313.
6 WAYMO LLC v. UBER TECHS., INC. 

routinely appealable interlocutory orders. Id. at 9:22–55

(acknowledging that the District Court did not certify the 

orders pursuant to § 1292(b) and that the orders do not 

fall within the categories enumerated in § 1292(a)(1)–(3), 

(c)(2)). Instead, Mr. Levandowski presents two theories of 

jurisdiction. First, Mr. Levandowski requests that we 

treat his appeals from the District Court’s orders in 

Waymo III and Waymo IV as petitions for writ of mandamus pursuant to 28 U.S.C. § 1651(a), asserting that the 

discovery orders from which he appeals will violate his 

Fifth Amendment right against self-incrimination, and 

that the constitutional aspect, relating to an issue already 

under criminal investigation, warrants immediate review. 

See Appellant’s Br. 3. Second, Mr. Levandowski argues 

that he has an immediate right to appeal the District 

Court’s order in Waymo IV because the “Perlman doctrine,” as set forth in Perlman v. United States, 247 U.S. 7 

(1918), purportedly provides that “a third-party privilege 

holder may immediately appeal an order compelling a 

disinterested third party to produce privileged materials.” 

Appellant’s Br. 2. We address these arguments in turn.

I. Mr. Levandowski Has Not Established His Entitlement 

to a Writ of Mandamus, Although a Continuing Confidentiality Order May Be Supported

The common law writ of mandamus is codified at 28 

U.S.C. § 1651(a), which provides that “all courts established by [an] Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions 

and agreeable to the usages and principles of law.” “[T]he 

writ of mandamus is an extraordinary remedy[] to be 

reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 

(1988). “The traditional use of the writ in aid of appellate 

jurisdiction both at common law and in the federal courts 

has been to confine the court against which mandamus is 

sought to a lawful exercise of its prescribed jurisdiction.” 

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380
WAYMO LLC v. UBER TECHS., INC. 7

(2004) (internal quotation marks, brackets, and citation 

omitted).

The petitioner bears the burden of showing entitlement to a writ of mandamus. Gulfstream, 485 U.S. at 

289. To meet its burden, a petitioner must satisfy each of 

the following “prerequisites”: 

First, the party seeking issuance of the writ must 

have no other adequate means to attain the relief 

he desires—a condition designed to ensure that 

the writ will not be used as a substitute for the 

regular appeals process. Second, the petitioner 

must satisfy the burden of showing that his right 

to issuance of the writ is clear and indisputable. 

Third, even if the first two prerequisites have 

been met, the issuing court, in the exercise of its 

discretion, must be satisfied that the writ is appropriate under the circumstances.

Cheney, 542 U.S. at 380–81 (internal quotation marks, 

brackets, and citations omitted). Failure to establish any 

of these three prerequisites may suffice to deny a petition. 

See Amgen Inc. v. Hospira, Inc., No. 2016-2179, 2017 WL 

3427716, at *6 (Fed. Cir. Aug. 10, 2017) (denying a petition for writ of mandamus for failure to satisfy the second 

Cheney prerequisite without addressing the first and 

third prerequisites). We address the Cheney prerequisites 

in turn.

A. Mr. Levandowski Fails to Satisfy Cheney’s First 

Prerequisite

Under Cheney’s first prerequisite, “the party seeking 

issuance of the writ must have no other adequate means 

to attain the relief he desires.” 542 U.S. at 380 (internal 

quotation marks, brackets, and citation omitted). Mr. 

Levandowski contends that he lacks such alternative 

means of relief because “an appeal after disclosure of the 

privileged communication is an inadequate remedy.” 
8 WAYMO LLC v. UBER TECHS., INC. 

Appellant’s Br. 56 (internal quotation marks and citation 

omitted). We disagree.

Appellate courts “generally den[y] review of pretrial 

discovery orders,” Firestone Tire & Rubber Co. v. Risjord, 

449 U.S. 368, 377 (1981), because “postjudgment appeals 

generally suffice to protect the rights of litigants and 

ensure the vitality of the attorney-client privilege . . . by 

vacating an adverse judgment and remanding for a new 

trial in which the protected material and its fruits are 

excluded from evidence,” Mohawk, 558 U.S. at 109. 

Although Mr. Levandowski is an intervenor, he is not 

precluded from appealing a final judgment even if the 

parties decline to do so. See Stringfellow v. Concerned 

Neighbors in Action, 480 U.S. 370, 375–76 (1987) (“An 

intervenor, whether by right or by permission, normally 

has the right to appeal an adverse final judgment by a 

trial court.”). While Mr. Levandowski contends that 

“disclosure of privileged information would irreparably 

taint the adversary process” because “[c]ourts cannot force 

litigants to unlearn information,” Appellant’s Br. 56, he 

has not specified why that general argument applies with 

greater force here than in any other case, see id. at 55–58. 

Therefore, we conclude that a post-judgment appeal by 

either Uber or Mr. Levandowski would “suffice to protect 

the rights of [Mr. Levandowski] and ensure the vitality of 

attorney-client privilege,” Mohawk, 558 U.S. at 109; see 

Stringfellow, 480 U.S. at 375–76, as to this civil action. 

Mr. Levandowski contends that disclosure of the Stroz 

Report would be “particularly injurious or novel.” Appellant’s Br. 56 (quoting Mohawk, 558 U.S. at 110); see 

Mohawk, 558 U.S. at 110 (discussing the “appellate 

options,” including petitioning for writ of mandamus, 

available to “litigants confronted with a particularly 

injurious or novel privilege ruling”). His arguments are 

unpersuasive, for it is apparent that Mr. Levandowski 

cannot invoke attorney-client privilege or work-product 

protection. 
WAYMO LLC v. UBER TECHS., INC. 9

Regarding injury, Mr. Levandowski fails to articulate 

any persuasive reasons why disclosure of the Stroz Report 

should be barred in this civil litigation, for the possibility 

of admissions against his interest is a valid function of 

civil discovery. See Appellant’s Br. 55–58. While Mr. 

Levandowski claims that the District Court would be 

unable to “cleanse the trial of all taint from the improper 

disclosure,” id. at 57, such an unsupported assertion is 

insufficient, see, e.g., Birdsong v. Apple Inc., 590 F.3d 955, 

959 (9th Cir. 2009) (“We review only issues which are 

argued specifically and distinctly in a party’s opening 

brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim . . . .” 

(internal quotation marks, alteration, and citation omitted)). Moreover, we take note that the District Court, 

reviewing the Stroz Report in camera, declined to exclude 

it, Waymo I, 2017 WL 2485382, at *1, and as explained 

above, the Supreme Court has indicated that appellate 

courts can remedy an improper disclosure of privileged 

information by vacating an adverse judgment and remanding for a new trial, Mohawk, 558 U.S. at 109. 

Regarding novelty, Mr. Levandowski mischaracterizes

the District Court’s orders in Waymo III and Waymo IV as 

categorical and novel holdings that “parties in ongoing 

transactional negotiations cannot invoke the commoninterest doctrine even when they are preparing for joint, 

post-transaction litigation.” Appellant’s Br. 57. To the 

contrary, the District Court clearly limited its holdings to 

the facts at issue, see, e.g., Waymo III, 2017 WL 2694191, 

at *6 (rejecting Uber’s arguments “[u]nder the facts of our 

case” and referring to the Magistrate Judge’s “extensive 

factual findings in reaching her conclusion that, under the 

circumstances of our case, [Uber and Mr.] Levandowski . . . had adverse rather than common interests” in

obtaining the Stroz Report). 

Moreover, even if a privilege ruling is particularly injurious or novel, a petition for writ of mandamus is one of
10 WAYMO LLC v. UBER TECHS., INC. 

“several potential avenues of review,” including “ask[ing] 

the district court to certify, and the court of appeals to 

accept, an interlocutory appeal.” Mohawk, 558 U.S. at 

110. Along with an appeal from a final judgment, these 

avenues of immediate review may have been available to 

Mr. Levandowski. See 15B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3914.18

(updated Apr. 2017) (“[An] intervenor, once allowed to 

become a party, is treated in the same way as any other 

party.”); id. § 3902.1 (stating that “[p]ersons granted 

intervention in the trial court become parties, and ordinarily have standing to appeal according to the rules that 

govern any over party” and that “[t]he only limit should 

be that standing is denied if the intervenor lacks standing 

under the rules that govern appeal by any party”); cf. 

Stringfellow, 480 U.S. at 375–76. 

Therefore, we deny Mr. Levandowski’s petition for 

writ of mandamus, see Amgen, 2017 WL 3427716, at *6,

taking note that he may be entitled to confidentiality of 

the Stroz Report with respect to disclosure beyond the 

District Court’s proceedings. We address the remaining 

two Cheney prerequisites for completeness.

B. Mr. Levandowski Fails to Satisfy Cheney’s Second 

Prerequisite

Under the second Cheney prerequisite, “the petitioner 

must satisfy the burden of showing that his right to 

issuance of the writ is clear and indisputable.” 542 U.S. 

at 381 (internal quotation marks, brackets, and citation 

omitted). Mr. Levandowski cannot establish a “clear and 

indisputable” right to mandamus relief solely by identifying ordinary error at the District Court. Id. (internal 

quotation marks and citation omitted); see In re United 

States, 791 F.3d 945, 955 (9th Cir. 2015) (requiring “clear 

error” such that “the reviewing court is left with a definite 

and firm conviction that a mistake has been committed”

(internal quotation marks and citation omitted)). Instead, 
WAYMO LLC v. UBER TECHS., INC. 11

something more is required to grant a petition for writ of 

mandamus because “only exceptional circumstances 

amounting to a judicial usurpation of power, or a clear 

abuse of discretion, will justify the invocation of this 

extraordinary remedy.” Cheney, 542 U.S. at 380 (internal 

quotation marks and citations omitted); see Hernandez v. 

Tanninen, 604 F.3d 1095, 1101 (9th Cir. 2010) (finding 

that mandamus was warranted because “the district court 

clearly erred in finding a blanket waiver of the attorneyclient and work product privileges as to the entire case”). 

We apply Ninth Circuit law to determine whether the 

District Court erred in its privilege determination. 

Promega Corp. v. Life Techs. Corp., 674 F.3d 1352, 1355–

56 (Fed. Cir. 2012).

Mr. Levandowski avers that he satisfies this prerequisite because “the [D]istrict [C]ourt’s rulings constitute a 

clear abuse of discretion.” Appellant’s Br. 55 (internal 

quotation marks and citation omitted). Specifically, Mr. 

Levandowski argues that the District Court erred by: 

(1) determining that the common interest doctrine did not 

apply, see id. at 23–47; (2) finding that Mr. Levandowski 

waived work-product protection, see id. at 47–49; and 

(3) rejecting Mr. Levandowski’s claim of Fifth Amendment 

privilege, see id. at 49–55. None of Mr. Levandowski’s 

arguments are persuasive.

1. The District Court Properly Determined That the 

Common Interest Doctrine Did Not Apply

“Rather than a separate privilege, the common interest or joint defense rule is an exception to ordinary waiver 

rules designed to allow attorneys for different clients 

pursuing a common legal strategy to communicate with 

each other.” In re Pac. Pictures Corp., 679 F.3d 1121, 

1129 (9th Cir. 2012) (internal quotation marks omitted). 

It is insufficient “to justify a claim of privilege simply by 

demonstrating that a confidential communication took 

place between parties who purportedly share a common 
12 WAYMO LLC v. UBER TECHS., INC. 

interest.” OXY Res. Cal. LLC v. Superior Court, 9 Cal. 

Rptr. 3d 621, 635 (Cal. Ct. App. 2004). Instead, “the party 

seeking to invoke the doctrine must first establish that 

the communicated information would otherwise be protected from disclosure by a claim of privilege.” Id. Therefore, to invoke the common interest doctrine, a party first 

must demonstrate the elements of privilege and then 

must demonstrate that the communication was made in 

pursuit of common legal claims including common defenses. Cf. Pac. Pictures, 679 F.3d at 1129; OXY, 9 Cal. Rptr. 

3d at 635. 

The Magistrate Judge determined that Mr. Levandowski failed to satisfy his burden as to both requirements of the common interest doctrine. See Waymo I, 

2017 WL 2485382, at *4–8 (finding that Mr. Levandowski’s communications with Stroz were not protected 

by attorney-client privilege and that the common interest 

doctrine did not create attorney-client privilege on his 

behalf), *9–13 (finding that Uber and Mr. Levandowski 

did not share a common interest because they were adversaries in the situation studied by Stroz). The District 

Court agreed, holding that the common interest doctrine 

was inapplicable because “[Mr.] Levandowski’s interview 

with and disclosures to Stroz . . . did not qualify for attorney-client privilege in the first place,” and “his interview 

and disclosures did not become privileged merely by 

virtue of his participation in a purported ‘common interest’ or ‘joint defense’ arrangement.” Waymo III, 2017 WL 

2694191, at *5. We agree with the District Court.

As to the first requirement of the common interest 

doctrine, Mr. Levandowski does not take the position that

his communications with Stroz were “privilege[d] in the 

first place.” Id. See generally Appellant’s Br. Instead, he 

asserts that the doctrine creates a separate, standalone 

form of privilege that does not require such a showing. 

Oral Arg. at 11:38–47, http://oralarguments.cafc.

uscourts.gov/default.aspx?fl=2017-2235.mp3 (“There is no 
WAYMO LLC v. UBER TECHS., INC. 13

requirement that there first be a document or a communication that is privileged and then only later shared with 

the common interest group.”); see Appellant’s Br. 23–47. 

Ninth Circuit precedent is contrary to Mr. Levandowski’s

assertion. See Pac. Pictures, 679 F.3d at 1129. Because 

both the Magistrate Judge and the District Court made 

extensive, record-supported factual findings as to privilege, see Waymo III, 2017 WL 2694191, at *2–5; Waymo I, 

2017 WL 2485382, at *4–6, and Mr. Levandowski fails to 

negate or challenge these findings on appeal, see Appellant’s Br. 23–47, we need not reconsider the District 

Court’s determination that Mr. Levandowski’s communications with Stroz were not privileged, see Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1347 (Fed. Cir. 

2016) (holding that failure to present arguments under 

the operative legal framework “typically warrants a 

finding of waiver”).5

 

5 We note that neither Stroz, nor Uber’s counsel, 

nor Ottomotto’s counsel represent Mr. Levandowski. 

Appellant’s App. 64–65, 114, 135. “What is vital to the 

privilege is that the communication be made in confidence

for the purpose of obtaining legal advice from the lawyer.” 

United States v. Gurtner, 474 F.2d 297, 298 (9th Cir. 

1973) (internal quotation marks and citations omitted). 

Mr. Levandowski could not show that he was seeking and 

obtained “legal advice from the lawyer” when communicating with Stroz. Id. Therefore, we share the District 

Court’s concern that Mr. Levandowski advances “the 

remarkable proposition that information communicated in 

confidence by anyone to Stroz . . . for the purpose of enabling Uber and Ottomotto to obtain legal advice from 

[their respective counsels] should be covered by the attorney-client privilege” invoked by the provider of infor-
14 WAYMO LLC v. UBER TECHS., INC. 

As to the second requirement of the common interest 

doctrine, the record contradicts Mr. Levandowski’s assertions that the District Court committed both legal and 

factual error. Mr. Levandowski argues that the District 

Court committed legal error by “adopt[ing] a blanket rule 

that parties with ‘separate counsel on opposite sides of a 

proposed transaction’ do not share a common legal interest sufficient to protect against waiver of the attorneyclient privilege.” Appellant’s Br. 26 (quoting Waymo I, 

2017 WL 2485382, at *6); see id. at 26–32, 36–39. However, Mr. Levandowski supports his argument by selectively 

quoting a small portion of one sentence in the midst of 

thorough findings that properly were limited to the facts 

of the case at hand. See Waymo I, 2017 WL 2485382, at 

*4–13; see also Waymo III, 2017 WL 2694191, at *6 (limiting its holdings to “the facts of our case” and “the circumstances of our case”). “We will not find legal error based 

upon an isolated statement stripped from its context.” 

VirnetX Inc. v. Apple Inc., 665 F. App’x 880, 886 (Fed. Cir. 

2016).

Mr. Levandowski next argues that the District Court 

committed factual error because “the record evidence—

including numerous sworn, uncontradicted declarations—

established the existence of a common interest agreement 

prior to Stroz’s engagement and established that [Mr.] 

Levandowski’s communications with Stroz were made in 

furtherance of the . . . joint legal effort” of Mr. Levandowski and Uber to prepare for litigation with Waymo. 

Appellant’s Br. 47; see id. at 39–47 (discussing purportedly supportive evidence). While Mr. Levandowski asserts 

that “[t]here is not a single piece of contrary testimony in 

the record,” id. at 41, the Magistrate Judge expressly 

 

mation to Stroz, which “has no basis in the law.” Waymo 

III, 2017 WL 2694191, at *3.
WAYMO LLC v. UBER TECHS., INC. 15

considered this proffered evidence and found it unpersuasive as to Mr. Levandowski’s claim of privilege, see Waymo I, 2017 WL 2485382, at *11–12. Instead, the 

Magistrate Judge found persuasive the term sheet between Uber and Ottomotto and the Stroz Report, see id. at 

*9–10, and determined that these documents demonstrated that Uber’s interests “were not aligned” with those of 

Mr. Levandowski, id. at *10; see id. at *13. We do not 

discern reversible error in the District Court’s ruling.

The Magistrate Judge’s and the District Court’s factual findings are well-supported by the record. For example, the following facts are undisputed: (1) Ottomotto and 

Uber signed a term sheet regarding Uber’s potential 

acquisition of Ottomotto, but that term sheet did not bind 

the parties to the proposed acquisition, see Appellant’s 

App. 126; Appellant’s Br. 4; (2) Uber and Ottomotto, but 

not Mr. Levandowski, hired Stroz to investigate various 

issues, including whether Mr. Levandowski improperly 

retained confidential information from Waymo, see Appellant’s App. 135; Appellant’s Br. 4; (3) Mr. Levandowski 

did not hire or enter into any other formal arrangement 

with Stroz, Oral Arg. at 10:13–24, 

http://oralarguments.cafc.uscourts.gov/default.aspx?fl

=2017-2235.mp3 (Q: “Was [Stroz] hired by Levandowski 

or his attorney?” A: “[Stroz] was not engaged specifically 

by Mr. Levandowksi’s attorney.”); see Appellant’s App. 

135; (4) “[t]he purpose of the [Stroz] investigation was to 

aid [Uber’s counsel] and [Ottomotto’s counsel] in providing legal advice to their respective clients about litigation 

risks and potential claims that could be brought by 

[Waymo] in connection with Uber’s acquisition of Otto[motto],” Appellant’s App. 65; see id. at 135; and (5) Mr. 

Levandowski could have lost a large sum of money if Uber 

did not acquire Ottomotto and could have been required 

to reimburse Uber’s indemnification expenses if he was 

not truthful with Stroz, Oral Arg. at 5:46–7:01, 

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
16 WAYMO LLC v. UBER TECHS., INC. 

17-2235.mp3 (discussing indemnification and the risk 

that the deal might not go forward absent full disclosure); 

see Appellant’s App. 129–33. These facts support the 

District Court’s conclusion that Uber’s interests were 

adverse to Mr. Levandowski’s because he was the subject 

of an investigation ordered by two parties on opposite 

sides of a proposed transaction. These undisputed facts

are sufficient to uphold the District Court’s conclusion

that Mr. Levandowski did not share a common interest 

with Uber. We thus decline to find error in the District 

Court’s factual findings or legal conclusions. 

2. The District Court Properly Determined That WorkProduct Protection Did Not Apply

The work-product doctrine protects from discovery

documents, tangible things, or compilations of materials 

that were prepared in anticipation of litigation by a party 

or its representative. See United States v. Richey, 632 

F.3d 559, 567 (9th Cir. 2011). Documents that “w[ere] not 

prepared exclusively for litigation,” known as “[d]ual 

purpose documents,” may be entitled to work-product 

protection if they were prepared “because of” litigation, 

meaning “the document[s] can be fairly said to have been 

prepared or obtained because of the prospect of litigation.” 

Id. at 568 (internal quotation marks and citation omitted). Even if a party has demonstrated that documents 

are entitled to work-product protection, that protection 

may be waived through disclosure to a third person. See 

Hernandez, 604 F.3d at 1100. The common interest 

doctrine, however, may serve as “an exception” to a waiver of privilege, including work-product protection, that 

“allow[s] attorneys for different clients pursuing a common legal strategy to communicate with each other.” Pac. 

Pictures, 679 F.3d at 1129; see Pecover v. Elec. Arts Inc., 

No. C08-2820 CW (BZ), 2011 WL 6020412, at *2 (N.D. 

Cal. Dec. 2, 2011) (stating that the common interest 

doctrine “is a narrow exception to the rule of waiver” of 

work-product protection). 
WAYMO LLC v. UBER TECHS., INC. 17

The Magistrate Judge explained that, “[o]nce a party 

has disclosed work product to one adversary, it waives 

work-product protection as to all other adversaries. As 

Uber disclosed its Stroz [Report] work product to its 

adversaries Otto[motto and Mr.] Levandowski . . . , it 

must disclose the same work product to Waymo.” Waymo 

I, 2017 WL 2485382, at *13 (citation omitted). The District Court agreed. Waymo III, 2017 WL 2694191, at *6 

(“[U]nder the circumstances of our case, [Uber and Mr.] 

Levandowski . . . had adverse rather than common interests . . . and . . . Uber therefore waived any work-product 

[protection] it may have had over the [Stroz R]eport by 

disclosing the contents of that report to adversaries.”). 

Mr. Levandowski argues that the District Court erred 

because “waiver of work-product protection requires that 

the information be disclosed . . . to an adversary,” and 

“[s]haring work product among the members of a common 

interest group is the antithesis of sharing it with an 

adversary.” Appellant’s Br. 48, 49 (citation omitted). 

This argument fails for three reasons. 

First, Mr. Levandowski has not established that he is 

entitled to assert work-product protection over the Stroz 

Report. Both the Magistrate Judge and the District Court 

“assum[ed] the Stroz [Report] qualifies as Uber’s attorney 

work[ ]product” and did not discuss the protection as 

applied to Mr. Levandowski. Waymo I, 2017 WL 2485382, 

at *8 (emphasis added); see Waymo III, 2017 WL 2694191, 

at *6 (stating that “Uber therefore waived any workproduct [protection] it may have had” (emphases added)). 

However, whether Uber can assert work-product protection over the Stroz Report does not benefit Mr. Levandowski. Work-product protection covers documents 

prepared by a party or its representative, Richey, 632 

F.3d at 567, and Mr. Levandowski concedes that he did 

not hire Stroz as his representative, Oral Arg. at 10:13–

24, http://oralarguments.cafc.uscourts.gov/default.aspx?fl

=2017-2235.mp3. Instead, Stroz was hired by Uber’s 
18 WAYMO LLC v. UBER TECHS., INC. 

counsel and Ottomotto’s counsel, neither of whom represents Mr. Levandowski. Appellant’s App. 64, 135. Therefore, even if the Stroz Report was prepared “because of” 

litigation, Richey, 632 F.3d at 567, it was prepared by 

Uber’s and Ottomotto’s representative rather than Mr. 

Levandowski’s representative. 

Second, even if Mr. Levandowski were entitled to assert work-product protection, he waived that protection by 

disclosing the information for the benefit of adverse third 

parties. While the common interest doctrine potentially 

could provide “an exception to ordinary waiver rules” and 

allow representatives of Uber and Mr. Levandowski to 

communicate in “pursui[t of] a common legal strategy,”

Pac. Pictures, 679 F.3d at 1129, we agree with the District 

Court’s finding that Uber and Mr. Levandowski had 

adverse rather than common interests in connection with 

the Stroz Report. The common interest doctrine does not 

apply and, therefore, cannot save Mr. Levandowski’s

waiver of the work-product protection. 

Third, both the Magistrate Judge and District Court 

applied the very standard that Mr. Levandowski argues 

for on appeal. Although Mr. Levandowski argues that 

“waiver of work[-]product [protection] requires that the 

information be disclosed . . . to an adversary,” Appellant’s 

Br. 48 (citation omitted), this is exactly what both the 

Magistrate Judge and the District Court determined had 

occurred, see Waymo III, 2017 WL 2694191, at *6; Waymo 

I, 2017 WL 2485382, at *13. Therefore, Mr. Levandowski’s argument regarding the appropriate legal standard is unavailing.

3. The District Court Properly Determined That the Fifth 

Amendment Was Not Implicated

The Fifth Amendment provides, in relevant part, that 

“[n]o person . . . shall be compelled in any criminal case to 

be a witness against himself.” U.S. Const. amend. V. 

“[T]he Fifth Amendment privilege is a personal privilege: 
WAYMO LLC v. UBER TECHS., INC. 19

it adheres basically to the person, not to information that 

may incriminate him.” Couch v. United States, 409 U.S. 

322, 328 (1973). The District Court determined that 

compelling Uber or Stroz to produce the Stroz Report 

would not violate Mr. Levandowski’s Fifth Amendment 

privilege, because he had not met his burden of showing 

that he retained any privilege over the Stroz Report. See 

Waymo II, 2017 WL 2676424, at *3; see also Appellant’s 

App. 19. We agree that Mr. Levandowski is not entitled 

to Fifth Amendment privilege with respect to disclosure in 

this civil case.6

Mr. Levandowski argues that he is entitled to assert 

Fifth Amendment privilege because Waymo’s complaint 

“plainly conjures the threat of criminal sanction” and the 

District Court “formally referred this case to the [U.S.] 

Attorney’s Office for investigation of possible theft of 

trade secrets.” Appellant’s Br. 50 (internal quotation 

marks, footnote, and citation omitted); see Appellant’s 

App. 171. Mr. Levandowski states that the disclosure of 

information contained in the Stroz Report would violate 

 

6 Mr. Levandowski was accepted as an intervenor 

under Federal Rule of Civil Procedure 24(b) “for the 

limited purpose of opposing Waymo’s motion to compel 

the Stroz Report,” Waymo I, 2017 WL 2485382, at *7, and 

“for the limited purpose of objecting to the Stroz subpoena,” Waymo II, 2017 WL 2676424, at *2. Therefore, Mr. 

Levandowski can challenge the District Court’s holdings 

as to Fifth Amendment privilege on appeal. See Wright & 

Miller § 3914.18 (“Orders granting intervention, or granting intervention but limiting the intervenor’s role in the 

action, are treated in the same way as other orders with 

respect to party joinder.”); id. (“[T]he intervenor, once 

allowed to become a party, is treated in the same way as 

any other party.”).
20 WAYMO LLC v. UBER TECHS., INC. 

his Fifth Amendment rights, since “the Constitution 

protects an individual like [Mr.] Levandowski from being 

compelled to testify against himself through the production of records.” Appellant’s Br. 51; see U.S. Const. 

amend. V; see also McCarthy v. Arndstein, 266 U.S. 34, 40 

(1924) (holding that the Fifth Amendment “applies alike 

to civil and criminal proceedings, wherever the answer 

might tend to subject to criminal responsibility him who 

gives it”). However, “the Fifth Amendment privilege is a 

personal privilege,” Couch, 409 U.S. at 328 (emphasis 

added), and Mr. Levandowski has not been compelled 

personally to produce the Stroz Report. 

Whether the information Mr. Levandowski provided 

for the Stroz Report is relevant to and admissible in any 

criminal action is not before us. Nor is it before us to 

decide whether the District Court may choose to preserve 

the Stroz Report’s confidentiality until its status in any 

criminal proceeding is resolved. However, with respect to 

the pending civil action, the District Court’s orders compel 

Uber and Stroz to produce the Stroz Report. Appellant’s 

App. 20; see Waymo III, 2017 WL 2694191, at *8. Mr. 

Levandowski cannot prevent Uber and Stroz from producing the Stroz Report for consideration in this civil action

solely because it “may incriminate him.” Couch, 409 U.S. 

at 328. We conclude, from the District Court’s and Magistrate Judge’s denial of his requests to prevent production 

of the Stroz Report, that they deem it relevant to this civil 

action; it is inappropriate to withhold relevant material in 

the civil action. However, the District Court has authority to ensure that any appropriate protective order is 

applied.

Mr. Levandowski’s counterarguments are unpersuasive. First, Mr. Levandowski argues that he maintains 

constructive possession over the Stroz Report. Appellant’s 

Br. 50−52. Although the Supreme Court has acknowledged that “situations may well arise where constructive 

possession is so clear or the relinquishment of possession 
WAYMO LLC v. UBER TECHS., INC. 21

is so temporary and insignificant as to leave the personal 

compulsions upon the accused substantially intact . . . , 

this is not the case before us.” Couch, 409 U.S. at 333–34

(footnote omitted). “Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over 

the object.” Henderson v. United States, 135 S. Ct. 1780, 

1784 (2015). Mr. Levandowski cannot demonstrate the 

requisite control because, as the Magistrate Judge explained, he “provided the statements and documents to an 

unrelated party on the other side of a proposed acquisition to enable the unrelated party to decide whether to 

agree to the acquisition and to create an evidentiary 

record to govern indemnification rights if a certain 

agreement is executed.” Waymo II, 2017 WL 2676424, at 

*3; see, e.g., Appellant’s App. 64–65, 135. While Mr. 

Levandowski argues that his attorney insisted by letter

that Stroz “agree[] to (a) ‘promptly return or destroy’ the 

materials upon request, and (b) hold in strict confidence 

all information derived from materials,” Appellant’s 

Br. 52 (quoting Appellant’s App. 136), this very same 

letter “provide[s] that Stroz may keep one archival copy” 

of the materials, and the accompanying protocol for 

Stroz’s investigation provides direction for “nonprivileged, relevant documents or communications . . . [to] 

be shared with [Ottomotto’s counsel] and [Uber’s counsel],” Appellant’s App. 136, 137–38 (footnote omitted). 

Moreover, the letter fails to temporally limit Stroz’s 

possession of the documents. See id. at 135–39. Under 

these circumstances, we agree with the District Court 

that neither is Mr. Levandowski’s possession “so clear” 

nor is his relinquishment of possession “so temporary” as 

to establish constructive possession. Couch, 409 U.S. at 

333 (footnote omitted). 

Second, Mr. Levandowski argues that, at minimum, 

we must vacate and remand the District Court’s determinations as to the Fifth Amendment privilege because the 
22 WAYMO LLC v. UBER TECHS., INC. 

District Court improperly deferred to the Magistrate 

Judge rather than reviewing Mr. Levandowski’s contentions de novo. Appellant’s Br. 53–55.7 Although it is true 

that “Article III judges are the ultimate decision makers

on matters involving substantial constitutional questions,” United States v. Rivera-Guerrero, 377 F.3d 1064, 

1071 (9th Cir. 2004); see id. (explaining that, “[h]ad the 

district court applied de novo review to the magistrate 

judge’s order, we would have no need to remand the 

case”), the District Court was only peripherally presented 

with a constitutional issue. Both before the District Court 

and on appeal, Mr. Levandowski conditioned his Fifth 

Amendment argument upon his claim of attorney-client 

privilege or common interest privilege. Oral Arg. at 

33:50–35:15, http://oralarguments.cafc.uscourts.gov/

default.aspx?fl=2017-2235.mp3 (“If this is a valid common 

interest privilege, . . . then a client giving an attorney 

documents . . . as part of a privileged relationship, . . . they’re the agent of counsel for the common 

interest group. Under the Fifth Amendment, a client has 

a right . . . to block production of those records from their 

counsel. . . . It turns on the validity of the privilege. . . . If 

there is a violation of the attorney-client privilege here 

that leads to a determination that the Fifth Amendment 

violation occurred, this will inevitably taint the record.” 

(emphases added)); see, e.g., Appellant’s Br. 54 (“[Mr.] 

Levandowski asserted in the [D]istrict [C]ourt 

that . . . any records he may have transferred to Stroz as 

part of a common interest privileged communication

remained subject to Fifth Amendment privilege.” (em-

 

7 During oral argument, counsel for Mr. Levandowski acknowledged “that it is a little bit murky” whether “de novo review should occur” in this case. Oral Arg. at 

36:54–37:00, http://oralarguments.cafc.uscourts.gov/

default.aspx?fl=2017-2235.mp3. 
WAYMO LLC v. UBER TECHS., INC. 23

phasis added) (citations omitted)); Appellant’s Emergency 

Mot. to Stay at 16, Waymo LLC v. Uber Techs., Inc., No. 

17-2253 (Fed. Cir. June 30, 2017), ECF No. 3 (“[S]ince any 

records he may have transferred to Stroz were part of a 

privileged joint-defense communication, . . . such records 

would remain privileged even if they are in the possession 

of Stroz.” (emphasis added) (citations omitted)). The 

District Court rejected Mr. Levandowski’s arguments as 

to the common interest privilege. 

C. Mr. Levandowski Fails to Satisfy Cheney’s Third 

Prerequisite

Under Cheney’s third prerequisite, “even if the first 

two prerequisites have been met, the issuing court, in the 

exercise of its discretion, must be satisfied that the writ is 

appropriate under the circumstances.” Cheney, 542 U.S. 

at 381 (citation omitted). As explained above, Mr. Levandowski has not satisfied his burden as to the first two 

Cheney prerequisites, and he has not persuaded us to 

exercise our discretion here and overrule the District 

Court. We thus decline to do so. 

Because Mr. Levandowski has not satisfied any of the 

Cheney prerequisites, his petitions for writ of mandamus 

with respect to the District Court’s orders in Waymo III

and Waymo IV are denied. Mr. Levandowski proffers no 

other grounds for this court to reverse the District Court’s 

order in Waymo III. Uber must comply with the District 

Court’s order in Waymo III upon denial of Mr. Levandowski’s petition for writ of mandamus, subject to any 

protection the District Court might impose on Fifth 

Amendment consideration.

II. The Perlman Doctrine Does Not Apply

As an alternative basis for reversal of the discovery 

order in Waymo IV, Mr. Levandowski argues that he is 

entitled to such action pursuant to the Perlman doctrine. 

Appellant’s Br. 2–3. The Perlman doctrine provides that 
24 WAYMO LLC v. UBER TECHS., INC. 

“a discovery order directed at a disinterested third party 

is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake 

in the proceeding to risk contempt by refusing compliance.” Church of Scientology of Cal. v. United States, 506 

U.S. 9, 18 n.11 (1992) (citation omitted). For several 

reasons, we conclude that the doctrine is not implicated 

here. 

First, grand jury subpoenas are “by far the most 

common area of application” of the Perlman doctrine. 

Wright & Miller § 3914.23; see In re Nat’l Mortg. Equity 

Corp. Pool Certificates Litig., 857 F.2d 1238, 1239 (9th 

Cir. 1988) (“We conclude that Perlman does not apply in 

the context of ongoing civil litigation.” (footnote omitted)). 

Although the Ninth Circuit has applied the Perlman 

doctrine in at least two civil cases of which we are aware, 

those cases did not provide any reasoning for applying the 

doctrine in the civil context. See In re Optical Disk Drive 

Antitrust Litig., 801 F.3d 1072, 1076 (9th Cir. 2015); Sec. 

& Exch. Comm’n v. CMKM Diamonds, Inc., 656 F.3d 829, 

830–31 (9th Cir. 2011).

Second, the Perlman doctrine applies “[o]nly in the 

limited class of cases where denial of immediate review 

would render impossible any review whatsoever of an 

individual’s claims.” United States v. Ryan, 402 U.S. 530, 

533 (1971); see, e.g., id. at 533–34 (“In the present 

case . . . , respondent is free to refuse compliance 

and, . . . in such event[,] he may obtain full review of his 

claims before undertaking any burden of compliance with 

the subpoena. Perlman, therefore, has no application in 

the situation before us.”). As we explained above, Mr. 

Levandowski may be able to appeal following final judgment. See supra Section I.A. 

Third, the Perlman doctrine may be invoked by “disinterested third parties,” Church of Scientology, 506 U.S. 

at 18 n.11, but Mr. Levandowski is closely affiliated with 
WAYMO LLC v. UBER TECHS., INC. 25

all parties to this litigation. It is undisputed that Mr. 

Levandowski has been employed by each party to this 

litigation and that his actions are central to Waymo’s 

claims. See Appellant’s Br. 9–14; Appellee’s Br. 7–9. 

Therefore, “it seems clear that [Uber] is no ‘disinterested’ 

third party.” Knoll Pharm. Co. v. Teva Pharm. USA, Inc., 

138 F. App’x 302, 303 (Fed. Cir. 2005) (citation omitted). 

Fourth, we have previously rejected Mr. Levandowski’s arguments under the Perlman doctrine in a 

substantively similar appeal. See Appellant’s Emergency 

Mot. to Stay at 9, Waymo LLC v. Uber Techs., Inc., No. 17-

1904 (Fed. Cir. Apr. 13, 2017), ECF No. 2 (discussing 

Perlman doctrine); Order at 2–3, Waymo LLC v. Uber 

Techs., Inc., No. 17-1904 (Fed. Cir. Apr. 25, 2017), ECF 

No. 9 (treating appeal as petition for writ of mandamus 

and dismissing). Mr. Levandowski has not provided any 

reasons why we should depart from that practice here, see 

Appellant’s Br. 2–3, and we see none. Because the Perlman doctrine is not implicated, Stroz must comply with 

the District Court’s order in Waymo IV. 

CONCLUSION

We have considered Mr. Levandowski’s remaining arguments and find them unpersuasive. Accordingly, Mr. 

Levandowski’s appeal is

DISMISSED AND THE PETITIONS FOR WRIT OF 

MANDAMUS ARE DENIED

COSTS

Costs to Waymo.