Waymo LLC v. Uber Technologies, Inc. et al

Filing 1272

ORDER RE: OTTO TRUCKING'S MOTION TO COMPEL FURTHER INFORMATION REGARDING WAYMO'S FORENSIC INVESTIGATION. Signed by Magistrate Judge Jacqueline Scott Corley on 8/18/2017 re: #1163 Discovery Letter Brief. (ahm, COURT STAFF) (Filed on 8/18/2017)

Case 3:17-cv-00939-WHA Document 1272 Filed 08/18/17 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WAYMO LLC,
Plaintiff,

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United States District Court
Northern District of California

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Case No.17-cv-00939-WHA (JSC)

v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.

ORDER RE: OTTO TRUCKING'S
MOTION TO COMPEL FURTHER
INFORMATION REGARDING
WAYMO'S FORENSIC
INVESTIGATION
Re: Dkt. No. 1163

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Waymo engineer Gary Brown conducted a forensic investigation into the electronic

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devices used by three of its former employees, including Anthony Levandowski. Although that

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investigation was initiated by Waymo’s legal counsel, Waymo chose to waive its counsel’s

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attorney work product as to the investigation. It has refused, however, to allow Defendants to

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inquire into anything counsel may have said, directly or indirectly, to Mr. Brown and others

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regarding his investigation. Otto Trucking contends that the subject matter of Waymo’s work

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product waiver includes what Mr. Brown was told regarding his investigation. The Court agrees.

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When a disclosure “made in a federal proceeding ... waives the attorney-client privilege or

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work-product protection, the waiver extends to an undisclosed communication or information in a

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federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed

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communications or information concern the same subject matter; and (3) they ought in fairness to

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be considered together. Fed. R. Evid. 502(a). Counsel’s communications to Mr. Brown regarding

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Mr. Brown’s investigation fall within the subject matter of the disclosed investigation. In fairness

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these communications should be considered with the information Waymo has disclosed. For

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example, Mr. Brown testified that in conducting investigations he does not keep anything that

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“was not deemed explicitly relevant for what we are trying to prove.” Waymo, however, instructed

Case 3:17-cv-00939-WHA Document 1272 Filed 08/18/17 Page 2 of 3

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Mr. Brown not to answer what he was asked to prove even though the answer goes directly to any

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bias in his investigation and its thoroughness. (Dkt. No.1161-2 at 39-40 (229:19-230:5, 230:19-

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23).) Such selective disclosure is not fair.

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Waymo does not address the fairness of its selective waiver. Instead, it argues that it only

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disclosed work product and not attorney-client privilege and therefore it does not have to disclose

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the privilege. Such is not the law as it would allow a privilege holder such as Waymo to use the

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privilege as a shield and a sword, something Waymo itself has constantly complained about in this

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litigation. It is thus unsurprising that there is no support for Waymo’s line drawing in Rule 502.

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While the waiver of work product does not necessarily waive attorney-client privileged
communications, here the waiver of work product over the investigation did waive the attorney-

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United States District Court
Northern District of California

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client privilege as to counsel communications with Mr. Brown and anyone else involved in the

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investigations at issue as in fairness such communications should be disclosed.

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Waymo’s alternative argument that Otto Trucking does not need to explore the

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investigation because it is undisputed that Mr. Levandowski downloaded 14,000 Waymo files is

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unpersuasive. The Court is not aware of any ruling that such fact is established as a matter of law.

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And if it were Waymo would not need to offer any evidence of the investigation in the first place.

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Waymo also contends that it withdrew its improper privilege objections to two questions

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and that Defendants did not ask again even though given the opportunity. (Dkt. No. 1226-4 at 3.)

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The deposition page Waymo cites however is not in the record before the Court. (Dkt. No. 1163-2

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at 9-10; 1161-5 at 10-11.)

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Accordingly, Otto Trucking’s motion to compel is granted as to communications regarding

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the investigation of the Former Employees. To the extent the redactions on the “Machine Forensic

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Record” include such communications, they shall be produced. Otto Trucking has not made any

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showing as to why communications regarding investigations of other employees have been waived

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and thus the motion is denied to the extent it seeks such relief.

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Any objections to this Order must be filed with the district court by noon on Monday,
August 21, 2017. The Order is not stayed in the interim.

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Case 3:17-cv-00939-WHA Document 1272 Filed 08/18/17 Page 3 of 3

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This Order disposes of Docket No. 1163.

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IT IS SO ORDERED.
Dated: August 18, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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