Waymo LLC v. Uber Technologies, Inc. et al

Filing 1267

ORDER DENYING #1228 MOTION FOR RELIEF FROM #1172 JUDGE CORLEY'S NONDISPOSITIVE PRETRIAL ORDER RE WAIVER OF PRIVILEGE by Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 8/18/2017)

Case 3:17-cv-00939-WHA Document 1267 Filed 08/18/17 Page 1 of 4

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAYMO LLC,

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For the Northern District of California

United States District Court

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Plaintiff,
v.

ORDER DENYING MOTION
FOR RELIEF FROM JUDGE
CORLEY’S NONDISPOSITIVE
PRETRIAL ORDER RE
WAIVER OF PRIVILEGE

UBER TECHNOLOGIES, INC.;
OTTOMOTTO LLC; and OTTO
TRUCKING LLC,
Defendants.
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No. C 17-00939 WHA

INTRODUCTION
The magistrate judge overseeing discovery in this action found that defendants waived

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their attorney-client privilege over a meeting between their top executives and in-house

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litigation counsel. Defendants move for relief from that order pursuant to Civil Local Rule 72.

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The motion is DENIED.

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STATEMENT
The background facts are described in Magistrate Judge Jacqueline Corley’s August 14

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order (Dkt. No. 1172 at 1–5) and need not be repeated here. In brief, on March 29 — after

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plaintiff Waymo LLC brought this action against defendants Uber Technologies, Inc.,

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Ottomotto LLC (collectively, “Uber”), and Otto Trucking LLC — a meeting to discuss

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Waymo’s allegations took place between Uber’s in-house litigation counsel Angela Padilla,

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then-CEO Travis Kalanick, and then-executive Anthony Levandowski. Uber subsequently

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disclosed parts of that meeting helpful to its litigation position and, in an effort to avoid the
resulting subject-matter waiver, argued that the meeting was never privileged in the first place.

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In an order dated August 14, per the discovery referral in this action, Judge Corley found

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that Uber’s attorney-client privilege covered the March 29 meeting. Judge Corley further found

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that Uber had deliberately disclosed the contents of that meeting, thereby waiving its privilege

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over the subject matter in question (id. at 5–10). Pursuant to Civil Local Rule 72, Uber filed a

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motion for relief from Judge Corley’s August 14 order (Dkt. No. 1228). No further briefing is

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necessary to decide this motion.

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ANALYSIS

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1.

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Under FRCP 72, a district judge considering timely objections to a magistrate judge’s

STANDARD OF REVIEW.

nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.”

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For the Northern District of California

United States District Court

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Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing

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court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United

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States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)).

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2.

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First, Uber complains that Judge Corley erred by analyzing the purpose of the meeting

UBER’S MOTION FOR RELIEF.

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rather than the specific communications in question (Dkt. No. 1228 at 1–3). Here, that is a

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distinction without a difference. Judge Corley’s comprehensive and thorough findings of fact,

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including findings concerning the purpose of Attorney Padilla’s presence in the meeting, apply

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with equal force to both. Uber’s argument is really about its disagreement with Judge Corley’s

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factual findings concerning the purpose of the communications in question, but those findings

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are strongly supported by the record and are not clearly erroneous.

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Second, Uber contends the mere fact that Attorney Padilla “learned facts that would

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allow her to later provide legal advice to Uber . . . does not make Mr. Levandowski’s statements

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privileged,” and that Levandowski’s aforementioned statements did not concern matters within

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the scope of his corporate duties because they concerned his actions prior to joining Uber (id. at

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3). This argument disingenuously describes Levandowski as a mere “witness” and ignores

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Judge Corley’s extensive findings about Levandowski’s role in the March 29 meeting as a high-

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level corporate executive and at the direction of Uber’s then-CEO (see Dkt. No. 1172 at 6–8).
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Third, Uber asserts that Attorney Padilla’s statement that Levandowski should testify

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“(a) was not legal advice to Uber and (b) was not intended to remain confidential” (Dkt. No.

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1228 at 3–5). Again, Uber’s arguments amount to mere disagreement with Judge Corley’s well-

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supported findings of fact (see Dkt. No. 1172 at 6–8). Such disagreement falls well short of

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showing clear error under FRCP 72.

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Since Judge Corley did not err in finding that Uber’s attorney-client privilege covered

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the March 29 meeting in the first instance, she also did not err in finding that Uber had

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deliberately waived its privilege (see id. at 9–10; Dkt. No. 1228 at 5). Uber has indulged in the

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slick practice of including its lawyers in meetings and communications and deciding after the
fact if a lawyer was actually included for the purpose of providing legal advice, all in

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For the Northern District of California

United States District Court

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accordance with what happens to be convenient for Uber’s case. Where, as here, the contents of

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a meeting prove advantageous for Uber to reveal, it readily claims that the lawyer did not attend

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the meeting in their capacity as a lawyer. But where the contents of a meeting would hurt

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Uber’s litigation position, Uber is quick to conceal the facts under claims of privilege. Judge

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Corley correctly refused to indulge this pattern of convenience.

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In her August 14 order, Judge Corley recommended “that the district court address

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whether Uber is precluded from making the waiver and thus offering evidence from Mr.

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Kalanick or Ms. Padilla as to Mr. Levandowski’s communications in light of the district court’s

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deadline for identifying waivers of the attorney-client privilege” (Dkt. No. 1172 at 11). That

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deadline passed on June 1 (see Dkt. No. 438), well before Uber’s selective waiver. It is far too

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late for Uber to reap the benefits of that waiver, so it will be precluded from introducing

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evidence of the March 29 meeting at trial. Waymo, however, remains entitled to look into the

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subject matter over which Uber has waived privilege, so the scope of the waiver must still be

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determined. If, at trial, Waymo ultimately introduces evidence on the waived subject matter,

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then Uber may in fairness be allowed to respond with its own evidence on the same.

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This order expresses no opinion on the related hearsay problem, which both sides are

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aware of but have not yet teed up before the Court. When the dust settles on that forthcoming

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dispute, the foregoing issue of preclusion against Uber’s tardy waiver may be for naught.
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CONCLUSION
For the foregoing reasons, defendants’ motion for relief from Judge Corley’s August 14
order is DENIED. All stated objections thereto are OVERRULED.

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IT IS SO ORDERED.

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Dated: August 18, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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