Waymo LLC v. Uber Technologies, Inc. et al

Filing 1311

ORDER RE: SCOPE OF UBER'S SUBJECT MATTER WAIVER. Signed by Magistrate Judge Jacqueline Scott Corley on 8/23/2017. (ahm, COURT STAFF) (Filed on 8/23/2017)

Case 3:17-cv-00939-WHA Document 1311 Filed 08/23/17 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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WAYMO LLC,
Plaintiff,

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Case No.17-cv-00939-WHA (JSC)
ORDER RE: SCOPE OF UBER’S
SUBJECT MATTER WAIVER

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

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The Court previously found that Uber waived its attorney-client privilege when it disclosed

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the contents of a March 29, 2017 conversation between its litigation counsel, its CEO Travis

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Kalanick, and its executive Anthony Levandowski. (Dkt. No. 1172.) The Court then asked the

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parties to file supplemental submissions regarding the scope of Uber’s waiver and invited Mr.

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Levandowski to file a submission as well given that he is likely to assert a privilege in

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conversations that he had that would otherwise be covered by Uber’s waiver. The district court

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subsequently affirmed the Court’s finding of Uber’s waiver and held that because the waiver came

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too late in the litigation Uber is barred from offering evidence of the contents of that conversation

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at trial. (Dkt. No. 1267 at 3.) The district court further held that “Waymo remains entitled to

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look into the subject matter over which Uber has waived privilege” and thus the scope of Uber’s

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waiver must still be decided. “If, at trial, Waymo ultimately introduces evidence on the waived

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subject matter, then Uber may in fairness be allowed to respond with its own evidence on the

Case 3:17-cv-00939-WHA Document 1311 Filed 08/23/17 Page 2 of 3

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same.” (Id.). Accordingly, the Court addresses the scope of Uber’s waiver below and finds that

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because Uber cannot waive Mr. Levandowski’s privilege in conversations covered by the subject

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matter of Uber’s waiver, Uber should not be allowed to offer evidence of the March 29

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conversation at trial for this additional reason.

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DISCUSSION
The parties agree that the scope of Uber’s waiver is all privileged conversations in which

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Mr. Levandowski discussed his downloading of Waymo’s files and his decision to invoke the

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Fifth Amendment, along with Uber’s response. The difficulty is that Mr. Levandowski has

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asserted his own attorney-client privilege in those conversations, including the March 29
conversation that Uber disclosed, pursuant to his and Uber’s Joint Defense Agreement. (Dkt. No.

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United States District Court
Northern District of California

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1246.) All parties also agree that Uber cannot waive Mr. Levandowski’s privilege and thus that

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the Court cannot order Uber to testify as to what was said in the conversations covered by Uber’s

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waiver. See, e.g., United States v. Gonzalez, 669 F.3d 974, 982 (9th Cir. 2012). Finally, Uber and

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Waymo also agree that Uber should therefore be precluded from offering into evidence the

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contents of the March 29, 2017 conversation. (Dkt. No. 1249 at 2; Dkt. No. 1248 at 4.) The Court

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agrees that result makes sense. Thus, Uber’s inability to waive the privilege as to all

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conversations which in fairness it should disclose is an additional reason to preclude it from

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offering the March 29, 2017 conversation into evidence.

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The district court left Waymo the option of nonetheless offering the March 29 conversation

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into evidence. Discovery closes on August 24, 2017. If Waymo wishes to challenge Mr.

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Levandowski’s assertion of an individual attorney-client privilege in the March 29 and related

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conversations it must do so before discovery closes. Should Waymo decide not to do so, this Court

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will not revisit the scope of Uber’s waiver.

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Finally, the Court declines Mr. Levandowski’s invitation to this Court to make a factual

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finding that he has and did not waive an attorney-client privilege in the March 29 conversation

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disclosed by Uber. That is a matter for future proceedings if and when a party attempts to use

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those communications against Mr. Levandowski.

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Case 3:17-cv-00939-WHA Document 1311 Filed 08/23/17 Page 3 of 3

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This Order disposes of Docket No. 1246.

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IT IS SO ORDERED.

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Dated: August 23, 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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