Waymo LLC v. Uber Technologies, Inc. et al

Filing 1506

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 1439 Waymo's Motion to Compel Uber re Investigations. (ahm, COURT STAFF) (Filed on 9/11/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WAYMO LLC, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.17-cv-00939-WHA (JSC) v. UBER TECHNOLOGIES, INC., et al., Defendants. ORDER RE: WAYMO'S MOTION TO COMPEL UBER TO PRODUCE PRIVILEGED MATERIAL Re: Dkt. No. 1439 12 13 Waymo seeks to compel Uber to produce material withheld on grounds of attorney-client 14 and attorney work-product privilege. (Dkt. No. 1439.) Specifically, Waymo contends that Uber 15 has waived any privilege as to (1) privileged communications related to Uber’s termination of 16 Anthony Levandowski, (2) Uber’s analysis of whether Waymo materials ended up at Uber, and (3) 17 Waymo’s inspections of Uber. Waymo’s motion is DENIED in part and GRANTED in part. 18 Uber bears the burden of proving that it has not waived any privilege. Weil v. 19 Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981). 20 “[V]oluntary disclosure of the content of a privileged attorney communication constitutes waiver 21 of the privilege as to all other such communications on the same subject.” Id. at 24. Further, 22 “[w]here a party raises a claim which in fairness requires disclosure of the protected 23 communication, the privilege may be implicitly waived. Chevron Corp. v. Pennzoil Co., 974 F.2d 24 1156, 1162 (9th Cir. 1992). For example, when a party claims that his conduct was reasonable 25 because he relied on the advice of counsel, he implicitly waives the privilege as to his 26 communications with counsel. See id. 27 1) The Termination of Anthony Levandowski 28 Two documents have been disclosed regarding the termination of Mr. Levandowski: (1) a 1 May 11, 2017 letter from Uber to Mr. Levandowski confirming a decision made on April 27, 2017 2 to prohibit Mr. Levandowski from working on LiDAR and also directing him to cooperate with 3 Uber’s investigation, (Dkt. No. 466-2), and a May 26 letter to Mr. Levandowski terminating his 4 employment with Waymo. (Dkt. No. 519-2.) Waymo does not contend that either letter is 5 privileged; thus, neither is a voluntary disclosure of a privileged communication. The May 11 6 letter does, however, disclose an April 27 communication. To the extent any documents are being 7 withheld as to the April 27 communication to Mr. Levandowski, they shall be disclosed. 8 Similarly, the May 26 letter discloses an April 20 written directive from Uber in-house counsel 9 Angela Padilla to Mr. Levandowski. This communication, too, should be produced. Uber does not address either communication, let alone meet its burden of showing why the disclosure of their 11 United States District Court Northern District of California 10 contents in the May 11 and May 26 letters is not a waiver. 12 Waymo’s insistence that it is entitled to all privileged communications regarding Uber’s 13 efforts to get Mr. Levandowski to return Waymo’s files is unpersuasive and unsupported by 14 citation to any authority. Under Waymo’s reasoning, Uber would be entitled to all of Waymo’s 15 privileged communications regarding its efforts to discover if Mr. Levandowski downloaded 16 Waymo’s materials. Waymo, however, has maintained that it need only disclose documents 17 related to its forensic analysis (over which it has intentionally waived the privilege) and not, for 18 example, its discovery analysis, even though they were all part of its efforts to learn what Mr. 19 Levandowski did. 20 2) Uber’s Internal Analyses 21 Waymo has not identified any disclosure of privileged communications. It contends, 22 instead, that Uber may have fact witnesses testify in addition to its expert. But apparently Uber 23 has of now not relied on such testimony; thus, there is nothing in the record that supports a finding 24 of waiver. Waymo’s speculation that Uber may attempt to rely on other analyses at trial that had 25 been withheld on grounds of privilege is meritless given that the deadline to waive the privilege 26 has long passed. 27 3) Waymo’s Inspections of Uber 28 Again, Waymo has not identified any disclosure of privileged communications by Uber. 2 1 Nor has it identified any testimony or argument that by implication waives the privilege. No 2 disclosure of privileged communications is required. 3 This Order disposes of Docket No. 1439. 4 5 6 IT IS SO ORDERED. Dated: September 11, 2017 7 8 JACQUELINE SCOTT CORLEY United States Magistrate Judge 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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