Waymo LLC v. Uber Technologies, Inc. et al

Filing 1970

ORDER DENYING #1522 MOTION FOR RELIEF FROM JUDGE CORLEY'S NONDISPOSITIVE PRETRIAL ORDER RE MOTION TO QUASH by Judge William Alsup. (whalc2S, COURT STAFF) (Filed on 10/6/2017)

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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 MOTION
FOR RELIEF FROM JUDGE
CORLEY’S NONDISPOSITIVE
PRETRIAL ORDER RE
MOTION TO QUASH

UBER TECHNOLOGIES, INC.;
OTTOMOTTO LLC; and OTTO
TRUCKING LLC,
Defendants.
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INTRODUCTION

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The magistrate judge overseeing discovery in this action quashed one defendant’s

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subpoena to a non-party law firm. Defendant moves for relief from that order pursuant to Civil

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Local Rule 72. The motion is DENIED.

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STATEMENT
On August 18, per the discovery referral in this action, Magistrate Judge Jacqueline

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Corley granted in part defendant Otto Trucking LLC’s motion to compel certain discovery into

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plaintiff Waymo LLC’s forensic investigation of former employees, overruling Waymo’s claims

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of privilege in the process (Dkt. No. 1272). Otto Trucking then issued a subpoena to non-party

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Keker, Van Nest & Peters LLP in connection with KVP’s role in that investigation. Waymo

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and KVP moved to quash that subpoena (Dkt. Nos. 1347, 1349).

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During a hearing on August 28, Judge Corley heard from both sides and developed a

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detailed plan for proceeding with further discovery into Waymo’s investigation. Her plan took

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into account, among other things, the tardiness of the KVP subpoena relative to the discovery

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schedule, the prioritization of discovery from Waymo itself, and the “sensitive” nature of

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subpoenaing KVP given its representation of Waymo in a separate arbitration. Judge Corley

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also clarified that her August 18 order was about “non-attorneys” who had conducted Waymo’s

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investigation, and that she had not intended to necessarily authorize a subpoena to KVP. As

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part of her plan, Judge Corley quashed the KVP subpoena “for now” with the caveat that

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“[s]omething may come up” to warrant revisiting the issue (see Dkt. No. 1414 at 6:12–30:23).
As far as the record shows, the parties completed Judge Corley’s plan for discovery into

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For the Northern District of California

United States District Court

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Waymo’s forensic investigation. On September 11, however, and in lieu of bringing any further

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issues involving KVP to Judge Corley’s attention, Otto Trucking moved pursuant to Civil Local

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Rule 72 for relief from her August 28 order quashing the KVP subpoena (Dkt. No. 1520-3).

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This order follows full briefing.

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ANALYSIS

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1.

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Under FRCP 72, a district judge considering timely objections to a magistrate judge’s

STANDARD OF REVIEW.

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nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.”

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Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing

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court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United

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States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)).
OTTO TRUCKING’S MOTION FOR RELIEF.

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2.

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In its motion, Otto Trucking never attempts to argue that Judge Corley’s August 28

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order was clearly erroneous or contrary to law (although it insists that her order was “incorrect”

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(see Dkt. No. 1588 at 5)). Nor does it attempt to criticize her broader plan for discovery into

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Waymo’s forensic investigation, which provides crucial context for her decision to quash the

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KVP subpoena at that time. Otto Trucking does not suggest, for example, that Judge Corley

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erred in insisting that it prioritize discovery from Waymo “for now.” Instead, Otto Trucking’s
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thesis seems to be that Judge Corley categorically could not prevent it from subpoenaing KVP

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because doing so “incorrectly narrowed the privilege waiver” found in her own prior August 18

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order (see Dkt. Nos. 1520-3 at 1, 5; 1588 at 2–3). Otto Trucking is wrong.

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Judge Corley clarified that her August 18 order had not contemplated the KVP issue and

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proceeded to develop a plan that accounted for multiple discovery considerations never

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addressed by Otto Trucking, including that other venues of discovery should be prioritized

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before revisiting the KVP issue if necessary. Otto Trucking could have made its arguments to

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Judge Corley while she was developing that plan, but did not. It could have immediately

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objected to Judge Corley’s interpretation of her own prior order and resulting discovery plan —
before anyone invested time and effort into executing that plan — but did not. It could have

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For the Northern District of California

United States District Court

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completed Judge Corley’s discovery plan and then revisited the KVP issue with her — as Judge

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Corley indicated it should — but did not. Instead, Otto Trucking inexplicably attempts to

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selectively unwind one part of her decision after the fact and without regard for the broader

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context for that decision. This order finds no reason to undermine Judge Corley’s discretionary

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management of discovery priorities here.

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In short, Otto Trucking’s motion is not a substitute for timely raising discovery issues,

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including the need for further discovery beyond what had already been authorized, before Judge

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Corley in the first instance. Nor has it shown that Judge Corley’s August 28 order — and the

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broader discovery plan that informed it — was “clearly erroneous or contrary to law.”

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CONCLUSION
For the foregoing reasons, defendant’s motion for relief from Judge Corley’s August 28
order is DENIED. All stated objections thereto are OVERRULED.

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IT IS SO ORDERED.

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Dated: October 6, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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