# United States **Court of Appeals**  **for the Federal Circuit**

______________________ WAYMO LLC, Plaintiff

- Appellee

v.

UBER TECHNOLOGIES, I NC., OTTOMOTTO LLC, OTTO TRUCKING LLC, Defendants

ANTHONY LEVANDOWSKI, Intervenor

- Appellant

STROZ FRIEDBERG, LLC, LYFT, INC., LIOR R ON, 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

______________________
C HARLES K RAMER V ERHOEVEN , Quinn Emanuel U rquhart & Sullivan, LLP, San Francisco, CA, argued for plaintiff

- appellee. Also represented by D AVID A NDREW P ERLSON ; D AVID M ICHAEL C OOPER , New York, NY.WAYMO LLC v. UBER TECHS ., INC

. 2

M ILES E HRLICH , Ramsey & Ehrlich LLP, Berkeley, CA, argued for intervenor

- appellant. Also represented by I SMAIL R AMSEY , A MY C RAIG

.

______________________
Before N EWMAN , W ALLACH , and S TOLL , Circuit Judges

. W ALLACH , Circuit Judge. Appellant Anthony Levandowski , an intervenor, seeks to prevent disco very sought by Appellee Waymo LLC (“Waymo”)

. 1 Waymo sued Uber Technologies, Inc. (“U ber”) , Otto motto LLC, and Otto Trucking LLC (together, “Ottomot to” ) 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 veh icle 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 r etained Stroz Fri ed berg, LLC (“Stroz”) to investigate Ottomotto employees previously employed by Waymo, including Mr. Levan dowski. The result ing report (“the Stroz R eport”) is the subject of the discovery dispute at i ssue on this ap peal. During discovery, Waymo sought to obtain the Stroz R eport using two separate mechanisms. First, Waymo filed a motion to co mpel Uber and Ottomotto to produce the Stroz R eport . Appellant’s App. 62. Magistrate J udge Jacqueline Scott Co rley granted Waymo’s Motion to

1 Waymo spun off from Google Inc.’s (“Google”) sel fdriving 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 subpoena ed Stroz to obtain the Stroz Report along with the commun ications, documents, and devices provided to Stroz. Appe llant’s App. 141

– 42. W hen 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 Mag istrate J udge 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 Magistra te J udge’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) (de nying relief from the Magistrate J udge’s order in Waymo I ); Waymo LLC v. Uber Techs., Inc. ( Waymo IV ), No. C 17

- 00939 WHA (N.D. Cal. June 27, 2017) (Appe llant’s App. 1 5– 20) (denying relief from the Magistrate J udge’s order in Waymo II ). 2

2 The Magistrate Judge’s and District Court’s fa ctual 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 arg uments 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.WAYMO LLC v. UBER TECHS ., INC

. 4

Mr. Levandowski appeals the District Court’s denial of relief from the Magist rate J udge ’ s orders. Because Mr. Levandowski has failed to satisfy his burden to demo nstrat e entitlement to a writ of mandamus, we dismiss.

J URISDICTION 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 final

judgment 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 lit igation on the merits and leaves nothing for the court to do but execute the jud gment.” Robert Bosch, LLC v. Pylon Mfg. Corp. , 719 F.3d 1305, 1308 (Fed. Cir. 2013) (en banc) (internal quotation

ma rks 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

cou rts 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 claimsWAYMO 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 jud gments 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 a ppealable final judgments pursua nt 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 adjud icated”). Mr. Levandowski does not contend that the collateral order doctrine applies here, see general ly Appe llant’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. Le vandowski is not entitled to atto rney

- 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 a tto rney

- client privilege.”).

4 “An ‘accounting’ in the context of § 1292(c)(2) i ncludes

. . . . both the calculation of an infringer’s profits and a patentee’s damages.” Robert Bosch

, 719 F.3d at 1313.WAYMO LLC v. UBER TECHS ., INC

. 6

routinely appealable interloc utory 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 request s that we treat his appeals from the District Court’s orders in Waymo III and Waymo IV as petitions for writ of mand amus pursuant to 28 U.S.C. § 1651(a)

, asserting that the discovery order s 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. Levando wski 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 privi lege holder may immediate ly 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 Establish ed His Entitlement to a Writ of Mandamus , Although a Continuing Confide ntiality Order May Be Supported

The common law writ of mandamus is codified at 28 U.S.C. § 1651(a), which provides that “all courts esta blished by [an] Act of Congress may issue all writs nece ssary 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 Aer ospace Corp. v. Mayacamas Co rp. , 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 jurisdictio n.” Che ney v. U.S. Dist. Court for D.C.

, 542 U.S. 367, 380WAYMO LLC v. UBER TECHS ., INC

. 7

(2004) (internal quotation marks, brackets, and citation omitted).
The petitioner bears the burden of showing entitl ement 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 f or 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 it s discretion, must be satisfied that the writ is a ppropriate under the circumstances. Cheney , 542 U.S. at 380

– 81 (internal quotation marks, brackets, and citations omitted)

. F ailure to establish any of these three prere quisites may suff ice 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 pet ition 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 Fail s to S atisfy Cheney ’s F irst Pre requisite

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 inade quate remedy.”WAYMO LLC v. UBER TECHS ., INC

. 8

Appellant’s Br. 56 (internal quotation marks and citation omitted). We disagree. Appellate courts “generally den[y] review of pretrial discovery or ders

, ” 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 evid ence , ” Mohawk , 558 U.S. at 109. A lthough Mr. Levandows k i 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 inter venor, 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 injuri ous or novel. ” Appe llant’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 “lit igants confronted with a particularly injurious or novel privilege ruling”)

. His arguments are

un persuasive

, 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 fail s to articulate
any persuasive reasons why disclosure of the Stroz R eport 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. Levan dowski claims that the D istrict C ourt 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 revi ew only issues which are argued specifically and distinctly in a party’s opening brief. We will not manufacture arguments for an appe llant, and a bare assertion does not preserve a claim

. . . .” (internal quotation marks, alteration, and citation omi tted )). Moreover, w e 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 r emanding 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 nove l holdings that “parties in ongoing transactional negoti ations cannot invoke the common

interest doctrine even when they are preparing for joint, post

- transaction litigation .” Appellant’s Br. 57. To the contrary, the District Court clearly limited its ho ldings 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 J udge’s “extensive factual findings in reaching her conclusion that, under the circumstances of our case

, [Uber and Mr.] Leva ndowski

. . . had adverse rather than common interests” in obtaining the Stroz Re port ).
Moreover, even if a privilege ruling is particularly i njurious or novel, a petition for writ of mandamus is one ofWAYMO LLC v. UBER TECHS ., INC

. 10

“ seve ral 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. Leva ndowski

. S ee 15B Charles Alan Wright & A rthur 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 ord inarily 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 interve nor 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 conf identiality of the Stroz Report with respect to disclosure be yond the District Court’s proceedings. W e address the remaining
two Cheney prerequisites for completeness.

B. Mr. Levandowski Fail s 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 w rit is clear and indisputable.” 542 U.S. at 381 (internal quotatio n marks , brackets, and citation omitted). Mr. Levandowski cannot establish a “cle ar 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 “t he 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 3 80 ( 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 attorney

client and work product privileges as to the entire case”)

. W e 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, 13 55

– 56 (Fed. Cir. 2012).

Mr. Levandows k i avers that he satisfies this prere quisite because “the [D]istrict [C]ourt’s rulings constit ute a clear abuse of discretion. ” A ppellant’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 t hat 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 inte rest or joint defense rule is an exception to ordinary waiver rules designed to allow attorneys for different clients pursuing a common legal stra tegy to communicate with each other.” In re Pac. Pictures Corp. , 679 F.3d 1121, 1129 (9th Cir. 2012) (internal quotation marks omitted). I t is in sufficient “to justify a claim of privilege simply by demonstrating that a confidential communication took pl ace between parties who purportedly share a commonWAYMO LLC v. UBER TECHS ., INC

. 12

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 wo uld otherwise be pr otected from disclosure by a claim of privilege.” Id. Ther efore, 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 c ommon legal claims including common defen ses. Cf. Pac. Pictures , 679 F.3d at 1129; OXY

, 9 Cal. Rptr. 3d at 635

. The Magistrate Judge determined that Mr. Leva ndowski failed to satisfy his burden as to both requir ements of the common interest doctrine. See Waymo I

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

- client privilege and that the common interest d octrine did not create attorney

- client privilege on his behalf ), *9

– 13 (finding th at Uber and Mr. Levandowski did not share a common interest because they were a dversaries in the situation studied by Stroz ). T he 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 atto rney

- 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 inte rest’ or ‘joint defense’ arrang ement .” 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. S ee generally Appellant’s Br

. Instead, he asserts that the doctrine creates a separat e, 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 noWAYMO LLC v. UBER TECHS ., INC

. 13

requirement that there first be a document or a commun ication 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 b oth the Magistrate Judge and the District Court made extensive, record

- supported factual findings as to priv ilege

, see Waymo III , 2017 WL 2694191 , at *2

– 5; Waymo I

, 2017 WL 2485382, at *4

– 6, and M r. Levandowski fails to negate or challenge these findings on appeal

, see Appe llant’s Br. 23

– 47 , we need not reconsider the District Court’s determination that Mr. Levandowski’s commun ications with Stroz were not privileged, s ee Nan Ya Pla stics Corp. v. United States , 810 F.3d 1333, 1347 (Fed. Cir. 2016) (holding that failure to present arguments under the operative legal framework “typically warrant s 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 commun icating 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 en abling Uber and Ottomotto to obtain legal advice from [their respective counsels] should be covered by the atto rney

- client privilege” invoked by the provider of info r-WAYMO LLC v. UBER TECHS ., INC

. 14

As to the second requirement of the common interest doctrine, the record contradicts Mr. Levandowski’s asse rtions that the District Court committed both legal an d 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 inte rest sufficient to protect against waiver of the attorney

client privilege .” Appellant’s Br. 26 (quoting Waymo I

, 2017 WL 2485382 , at *6) ; see id. at 26

– 32, 36

– 39 . Howe ver, Mr. Levandowski supports hi s 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 ( limi ting its holdings to “ the facts of our case” and “the circu mstances of our case ” ). “We will not find legal error based upon an isolated stateme nt stripped from its context.” VirnetX Inc. v. Apple Inc. , 665 F. App’x 880, 886 (Fed. Cir. 2016).

Mr. Levandowski n ext 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.] Le vandowski’s communications with Stroz were made in furtherance of the

. . . joint legal effort” of Mr. Leva ndowski and Uber to prepare for litigation with Waymo. Appellant’s Br. 47; see id. at 39

– 47 (discussing purporte dly 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 unpersu asive as to Mr. Levandow s ki’s claim of privilege

, see Waymo I , 2 017 WL 2485382, at *11

– 12 . Instead, the Magistrate Judge found persuasive the term sheet b etween Uber and Ottomotto and the Stroz Report

, see id. at *9– 10 , and determined that these documents demonstra ted 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.

T he Magistrate Judge’s and the District Court’s fa ctual findings are well

- supported by the record. For exa mple, the following facts a re 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. 1 26 ; Appellant’s Br. 4; (2) Uber and Ottomotto, b ut not Mr. Levandowski, hired Stroz to investigate various issues

, including whether Mr. Levandowski improperly retained confidential information from Waymo

, see Appe llant’s App. 135; Appellant’s Br. 4 ; (3) Mr. Levandowski did not hire or enter into any ot her 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 [U ber’s counsel] and [Ottomotto’s counsel] in provi ding legal advice to their respective clients about litigation risks and potential claims that could be br ought by [Waymo] in connection with Uber’s acquisition of O tto[motto],” Appellant’s App. 6 5 ; 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 ind emnification expenses if he was not truthful with Stroz

, Oral Arg. at 5:46

– 7:01
, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20WAYMO LLC v. UBER TECHS ., INC

. 16

17

- 2235.mp3 (discussing indemnification and the risk that the deal might not go forward absent full disclosure) ;

see A ppellant’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 Pr operly Determined T hat Work

Product Protection Did Not Apply

The work

- product doctrine protects from discovery docu ments, 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 omi tted). Even if a party has demonstrated that document s

are entitled to work

- product protect ion , 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 wai ver of privilege, including work

- product protection

, that

“ allow [s] attorneys for different clients pursuing a co mmon 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 d isclosed work product to one adversary, it waives work

- product protect ion as to a ll other adversaries . As Uber disclosed its Stroz [Report] work product to its adversaries Ot to[m otto and Mr. ] Levandowski

. . . , it must disclose the same work product to Waymo. ” Waymo I

, 2017 WL 2485382, at *13 (citation omitted)

. The Di strict 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 inte rests

. . . and . . . U ber therefore waived any work

- product [protection] it may have had over the [Stro z R] eport by disclosing the content s 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 pr otection 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 work

product [protection] it may have had” (emphases added)). However, whe ther Uber can assert work

- product protection over the Stroz Report does not benefit Mr. Leva ndowski

. W ork

- 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, ht tp://oralarguments.cafc.uscourts.gov/default.aspx?fl

= 2017

- 2235

. mp3

. Instead, Stroz was hired by Uber’sWAYMO LLC v. UBER TECHS ., INC

. 18

counsel and Ottomotto’s counsel, neither of whom repr esent s Mr. Levandowski. Appellant’s App. 64, 135. Ther efore, e ven if the Stroz Report was pr epared “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.

S econd, even if Mr. Levandowski were entitled to a ssert work

- product protection, he waived that protection by disclosing the information for the benefit of adverse third parties

. While t he common interest doctrine potentially could provide “an exception to ordinary waiver rules” and allow representatives of Uber and Mr. Levandowski to communicate in “pursu i [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. Leva ndowski’s argument regarding the appropriate legal stan dard 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 priv ilege: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. Leva ndowski’s Fifth Amendment privi lege , 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 . W e 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 th e 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 subpo ena,” Waymo II , 2017 WL 2676424, at *2. Therefore, Mr. Levandowski can cha llenge the District Court’s holdings as to Fifth Amendment privilege on appeal

. See Wright & Miller § 3914.18 (“Orders granting intervention, or gran ting intervention but limiting the intervenor ’ s role in the action, are treated in the same way as other o rders 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.”).WAYMO LLC v. UBER TECHS ., INC

. 20

his Fifth Amendment rights, since “the Constitution protects an individual like [Mr.] Levandowski from being compelled to testify against himself through the produ ction o f records.” Appellant’s Br. 51; s ee U.S. Const

. amend. V; s ee 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 resp onsibility 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. Le va ndow sk i 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 crimina l proceeding is resolved. However, with resp ect to the pending civil action , t he District Court ’s orders compel Uber and Stroz to pro duce the Stroz Report. Appellant’s App. 20; see Waymo III , 2017 WL 2694191, at *8. Mr. Levandowski cannot prevent Uber a nd Stroz from produ cing 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 M agi strate J udge ’ 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 author ity to en sure that any appropriate protective order is applied.

Mr. Levandowsk i ’s counterarguments are unpersu asive. First, Mr. Levandowski argues that he maintains constructive p ossession over the Stroz Report. Appellant’s Br. 50− 52. Although the Supreme Court has acknow ledged that “situations may well arise where constructive possession is so clear or the relinquishment of possessionWAYMO 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 esta blished when a person, though lacking such physical cust ody, 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 e xplained, he “provided the statements and documents to an unrelated party on the other side of a proposed acquis ition 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 infor mation derived from materials,” Appel lant’s Br. 52 (quot ing Appellant’s App. 136)

, t his 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 “non

privileged, relevant documents or communications

. . . [to] be shared with [ Ottomotto ’s counsel] and [ U ber’s cou nsel],” 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 tha t 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 determ inations as to the Fifth Amendment privilege because theWAYMO LLC v. UBER TECHS ., INC

. 22

District Court improperly deferred to the Magistrate Judge rather than reviewing Mr. Levandowski’s conte ntions 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 que stions ,” United States v. Rivera

- Guerrer o , 377 F.3d 1064, 1071 (9th Cir. 2004); see id. (explaining t hat, “[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. B oth 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 relatio nship

, . . . the y’re the agent of counsel for the common interest group. Under the Fifth Amendment, a client has a right

. . . to block produc tion 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 add ed)); s ee, 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 Fi fth Amendment privilege.” (e m-

7 During oral argument, counsel for Mr. Leva ndowski acknowledged “that it is a little bit murky” whet her “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) ). T he District Court rejected Mr. Levandowski’s arguments as to the common interest privilege

. C. Mr. Levandowski Fail s 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, mus t be satisfied that the writ is appropriate under the circumstances. ” Cheney , 542 U.S. at 3 81 (citation omitted). As explained above, Mr. Leva ndowski has not satisfied his burden as to the first two Cheney prerequisites, and he has not persuaded us to

ex ercise our discretion here and overrule the District Court

. We thus dec line 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. Leva ndowski’s petition for writ of man damus , subject to any protection the D istrict C ourt 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 thatWAYMO LLC v. UBER TECHS ., INC

. 24

“a discovery order directed at a disinterested third party is tr e ated as an immediately appealable final order b ecause the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compl iance.” 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 doctrin e 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; s ee 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 case s of which we are aware

, th ose case s did not provide any reasoning for appl ying 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 situ ation before us.”) . As we explained above, Mr. Levandowski may be able to appe al following final jud gment. See supra Section I.A

. Third , the Perlman doctrine may be invoked by “di sinterested third parties,” Church of Scientology , 506 U.S. at 18 n.11, but Mr. Levandowski is closely affiliated withWAYMO LLC v. UBER TECHS ., INC

. 25

all parties to this litigation. It is un disputed that Mr. Levandowski has been employed by each party to this litigation a nd 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. Leva ndowski’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 prac tice here, see Appellant’s Br. 2

– 3, and we see none. Because the Per lman doctrine is not implicated, Stroz must comply with the District Court’s order in Waymo IV

. C ONCLUSION We have considered Mr. Levandowski’s remaining a rguments and find them unpersuasive. Accordingly, Mr. Levandows ki’s appeal is

DISMISSED AND THE PETITION S FOR WRIT OF MANDAMUS ARE DENIED

C OSTS Costs to Waymo.