Waymo LLC v. Uber Technologies, Inc. et al

Filing 1871

ORDER DENYING #1682 #1684 #1685 #1686 MOTIONS FOR PROTECTIVE ORDER OVER DUE DILIGENCE REPORT by Judge Alsup. (whalc2S, COURT STAFF) (Filed on 9/28/2017)

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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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No. C 17-00939 WHA

Plaintiff,
v.
ORDER DENYING MOTIONS
FOR PROTECTIVE ORDER
OVER DUE DILIGENCE
REPORT

UBER TECHNOLOGIES, INC.;
OTTOMOTTO LLC; and OTTO
TRUCKING LLC,
Defendants.
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Plaintiff Waymo LLC, non-party Anthony Levandowski, defendants Uber Technologies,

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Inc., and Ottomotto LLC (collectively, “Uber”), and non-party Lior Ron have filed motions for

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a protective order over the due diligence report prepared by non-party Stroz Friedberg. The

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transparency of that due diligence report is crucial to the public’s ability to understand the

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merits of this case, particularly on dispositive motions and at trial. No movant has shown

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sufficient reason to override the public interest factor here.

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First, Waymo’s motion seems to request the Court’s blessing to designate certain

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exhibits to the due diligence report as “confidential” or “highly confidential — attorney’s eyes

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only” pursuant to the stipulated protective order in this action (see Dkt. No. 1681-4). No such

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blessing will be given. Waymo remains free to put in place confidentiality designations that it

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believes are appropriate under the stipulated protective order and in light of the Court’s views

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on the importance of the public’s interest in the due diligence report. But if any party attempts

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to file parts of the due diligence report under seal, or to keep it under seal at trial, such attempt

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will be denied except as to trade secret (and other truly sealable) information. Except as stated

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herein, Waymo’s motion for a protective order is DENIED.

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Second, Levandowski moves to keep the entire due diligence report and related

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materials concealed from the public and the government, and to limit their use at trial. The

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basis for this motion is Levandowski’s contention that “the Federal Circuit has not foreclosed

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the possibility that [he] will later be deemed to have valid Fifth Amendment rights (and other

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privileges) with respect to the Stroz materials” (Dkt. No. 1684 at 2). This order disagrees. The

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Federal Circuit’s opinion made very clear — notwithstanding that it reached the issue on a

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petition for writ of mandamus — that Levandowski “is not entitled to Fifth Amendment
privilege with respect to disclosure in this civil case” and also “cannot invoke attorney-client

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For the Northern District of California

United States District Court

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privilege or work-product protection” (Dkt. No. 1733 at 8, 19). Levandowski has proffered no

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other rationale for his motion, much less any rationale that justifies the sweeping relief he seeks.

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His motion for a protective order is DENIED.

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Third, Uber moves to show the jury a “slightly redacted” version of the due diligence

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report that omits as irrelevant “any reference to potential solicitation,” among other unspecified

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things Uber considers “unrelated to the nine trade secrets at issue” (Dkt. No. 1685). Contrary to

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Uber, it is not a foregone conclusion that parts of the due diligence report that reference

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“potential solicitation” will have no relevance to the case. Uber’s motion is essentially an

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evidentiary objection and will not be sustained in the form of a protective order. Its motion for

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a protective order is DENIED without prejudice to targeted objections in response to specific

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evidence proffered at trial.

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Fourth, and in a similar vein, Ron moves to intervene and for a protective order to

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prevent public disclosure of most of the due diligence report — which he claims is “irrelevant”

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to Waymo’s misappropriation claims — to protect his own “reputational interests” and position

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in a separate arbitration proceeding against him (Dkt. No. 1686). The Court has already

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instructed the parties to keep the due diligence report “low-level confidential, among

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[themselves], and not give it to the New York Times and everybody else” (Dkt. No. 1723 at

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11:20–22). Beyond that, it is not a foregone conclusion that “the majority” of the due diligence
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report is irrelevant to the merits of this case, and Ron’s reputational concerns do not trump the

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public’s interest in understanding the merits. Insofar as Ron’s motion essentially amounts to a

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relevance objection, defendants are perfectly capable of raising that objection in response to

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specific evidence proffered at trial. Except as stated herein, Ron’s motion to intervene and for a

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protective order is DENIED.

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IT IS SO ORDERED.

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Dated: September 28, 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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