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)

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Case 3:17-cv-00939-WHA Document 1311 Filed 08/23/17 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 WAYMO LLC, Plaintiff, 12 13 14 15 Case No.17-cv-00939-WHA (JSC) ORDER RE: SCOPE OF UBER’S SUBJECT MATTER WAIVER v. UBER TECHNOLOGIES, INC., et al., Defendants. 16 17 The Court previously found that Uber waived its attorney-client privilege when it disclosed 18 the contents of a March 29, 2017 conversation between its litigation counsel, its CEO Travis 19 Kalanick, and its executive Anthony Levandowski. (Dkt. No. 1172.) The Court then asked the 20 parties to file supplemental submissions regarding the scope of Uber’s waiver and invited Mr. 21 Levandowski to file a submission as well given that he is likely to assert a privilege in 22 conversations that he had that would otherwise be covered by Uber’s waiver. The district court 23 subsequently affirmed the Court’s finding of Uber’s waiver and held that because the waiver came 24 too late in the litigation Uber is barred from offering evidence of the contents of that conversation 25 at trial. (Dkt. No. 1267 at 3.) The district court further held that “Waymo remains entitled to 26 look into the subject matter over which Uber has waived privilege” and thus the scope of Uber’s 27 waiver must still be decided. “If, at trial, Waymo ultimately introduces evidence on the waived 28 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 1 same.” (Id.). Accordingly, the Court addresses the scope of Uber’s waiver below and finds that 2 because Uber cannot waive Mr. Levandowski’s privilege in conversations covered by the subject 3 matter of Uber’s waiver, Uber should not be allowed to offer evidence of the March 29 4 conversation at trial for this additional reason. 5 6 DISCUSSION The parties agree that the scope of Uber’s waiver is all privileged conversations in which 7 Mr. Levandowski discussed his downloading of Waymo’s files and his decision to invoke the 8 Fifth Amendment, along with Uber’s response. The difficulty is that Mr. Levandowski has 9 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. 11 United States District Court Northern District of California 10 1246.) All parties also agree that Uber cannot waive Mr. Levandowski’s privilege and thus that 12 the Court cannot order Uber to testify as to what was said in the conversations covered by Uber’s 13 waiver. See, e.g., United States v. Gonzalez, 669 F.3d 974, 982 (9th Cir. 2012). Finally, Uber and 14 Waymo also agree that Uber should therefore be precluded from offering into evidence the 15 contents of the March 29, 2017 conversation. (Dkt. No. 1249 at 2; Dkt. No. 1248 at 4.) The Court 16 agrees that result makes sense. Thus, Uber’s inability to waive the privilege as to all 17 conversations which in fairness it should disclose is an additional reason to preclude it from 18 offering the March 29, 2017 conversation into evidence. 19 The district court left Waymo the option of nonetheless offering the March 29 conversation 20 into evidence. Discovery closes on August 24, 2017. If Waymo wishes to challenge Mr. 21 Levandowski’s assertion of an individual attorney-client privilege in the March 29 and related 22 conversations it must do so before discovery closes. Should Waymo decide not to do so, this Court 23 will not revisit the scope of Uber’s waiver. 24 Finally, the Court declines Mr. Levandowski’s invitation to this Court to make a factual 25 finding that he has and did not waive an attorney-client privilege in the March 29 conversation 26 disclosed by Uber. That is a matter for future proceedings if and when a party attempts to use 27 those communications against Mr. Levandowski. 28 2 Case 3:17-cv-00939-WHA Document 1311 Filed 08/23/17 Page 3 of 3 1 This Order disposes of Docket No. 1246. 2 IT IS SO ORDERED. 3 Dated: August 23, 2017 4 5 JACQUELINE SCOTT CORLEY United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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