Waymo LLC v. Uber Technologies, Inc. et al

Filing 2224


Download PDF
1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 WAYMO LLC, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 No. C 17-00939 WHA Plaintiff, v. ORDER DENYING MOTION FOR RELIEF FROM JUDGE CORLEY’S NONDISPOSITIVE PRETRIAL ORDER RE DUE DILIGENCE REPORT DRAFTS UBER TECHNOLOGIES, INC.; OTTOMOTTO LLC; and OTTO TRUCKING LLC, Defendants. / INTRODUCTION The magistrate judge overseeing discovery in this action granted plaintiff’s motion to 18 compel production of any drafts of a due diligence report. Defendants move for relief from that 19 order pursuant to Civil Local Rule 72. The motion is DENIED. 20 21 STATEMENT On October 27, per the discovery referral in this action, Magistrate Judge Jacqueline 22 Corley granted plaintiff Waymo LLC’s motion to compel production of any drafts of the due 23 diligence report prepared by non-party Stroz Friedberg, overruling defendants Uber 24 Technologies, Inc., and Ottomotto LLC’s (collectively, “Uber”) assertion of privilege in the 25 process (Dkt. No. 2128). Judge Corley found, among other things, that Uber should have 26 asserted privilege over the drafts earlier in the litigation, and rejected its attempt to do so at this 27 late stage (id. at 4–5). Uber moves pursuant to Civil Local Rule 72 for relief from that order 28 (Dkt. No. 2152). This order follows full briefing. The motion hearing currently set for November 28 is unnecessary and VACATED. 1 ANALYSIS 2 1. STANDARD OF REVIEW. 3 Under FRCP 72, a district judge considering timely objections to a magistrate judge’s 4 nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.” 5 Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing 6 court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United 7 States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 8 2. 9 Some procedural background about this litigation informs the instant dispute and UBER’S MOTION FOR RELIEF. warrants brief summary. On March 16 of this year, an expedited discovery order required in 11 For the Northern District of California United States District Court 10 part that defendants produce all “emails, memoranda, PowerPoints, text messages, or notes that 12 have forwarded, used, or referred to any part of” the files and documents downloaded and taken 13 by non-party Anthony Levandowski from Waymo (Dkt. No. 61 ¶ 4). Shortly thereafter, on 14 March 28, defendants requested an “in-chambers conference” to discuss a “confidential matter” 15 that turned out to be the first mention of the due diligence report and defendants’ intent to assert 16 privilege over said report (see Dkt. Nos. 122, 131 at 12:22–13:5). On May 11, a provisional 17 relief order further required, among other things, that defendants cause their “officers, directors, 18 employees, and agents” to return the downloaded materials “and all copies, excerpts, and 19 summaries thereof,” conduct a thorough investigation, and provide a detailed accounting and 20 communications log regarding said materials. That order expressly called out Stroz Friedberg 21 and its due diligence report (see Dkt. No. 433 ¶¶ 2, 4–5). 22 The subsequent debate over defendants’ and Levandowski’s assertions of privilege over 23 the due diligence report and related materials — a more detailed summary of which is included 24 in Judge Corley’s order and need not be repeated here (see Dkt. No. 2128 at 2–5) — featured as 25 a central issue in this litigation for months. That debate persisted until September 13 of this 26 year, when the Federal Circuit affirmed this Court’s rejection of said assertions. 27 28 Uber now complains that it “had no opportunity to assert” privilege over drafts of the due diligence report, and that Judge Corley clearly erred in finding (see id. at 4–5): 2 1 2 3 Even though the drafts were not shared with Uber, it could not have been a surprise that drafts existed. Stroz was and is Uber’s agent. Uber had to have known or at least should have inquired if drafts existed. Apparently it did not do so until after the Federal Circuit ruling. Under the district court’s standing order, this assertion of privilege came too late. 4 Given the history of this litigation, including prior orders entered herein, this order finds no 5 clear error in Judge Corley’s decision. Uber’s arguments to the contrary are unpersuasive. 6 Uber contends “it was far from obvious that drafts existed” as of June 2017. By then, 7 however, Uber was already well aware of the due diligence report and its significance and had 8 already declared its intent to assert privilege over the report and related materials. Moreover, 9 by that time Uber was already subject to both the expedited discovery and provisional relief 10 obligations, and while immersed in contentious litigation over issues of privilege surrounding For the Northern District of California United States District Court orders. Uber apparently suggests that, in the midst of all its production and investigation 11 12 the due diligence report and related materials, it had no reason whatsoever to wonder if drafts of 13 that report existed. Under these circumstances, the suggestion strains credulity. 14 In a similar vein, Uber’s reply brief suggests that Judge Corley may have been correct if 15 Waymo had just served a narrower subpoena on Stroz Friedberg (Dkt. No. 2170 at 1–2). This 16 suggestion ignores both the broader history of this litigation and the prominent role of the due 17 diligence report therein. Even assuming for the sake of argument that Uber could not have 18 reasonably known to inquire about the entire universe of items potentially implicated by Stroz 19 Friedberg’s role in this case, drafts of the crucial due diligence report would not fall on the outer 20 peripheries of that universe. They would sit near the very center, one obvious step away from 21 the due diligence report itself. Uber’s hand-wringing over the amount of material it had to go 22 through is thus beside the point. There is simply no reason to believe that Uber could not have 23 known or inquired about the draft reports earlier than it did. 24 A prior order dated June 27, cited in Uber’s motion, actually highlights this point. Uber 25 cites that order for the proposition that there would be no “preclusive effect” on “new claims of 26 privilege that Uber has had no opportunity to assert” (Dkt. No. 2152 at 3 (emphasis added in 27 original)). Actually, the quoted portion, read in full, stated (Dkt. No. 745 at 3): 28 3 1 2 3 4 5 6 [I]t remains a mystery what responsive “documents and communications” could fall outside the scope of both the expedited discovery order and the privilege issues that have been litigated thus far in connection with Stroz Friedberg’s due diligence investigation and report. Uber offered no details about this theoretical category of “documents and communications” before Judge Corley or in its instant motion for relief. Supposing for the sake of argument, however, that this theoretical category exists and truly implicates new claims of privilege that Uber has had no opportunity to assert, it does not appear that Judge Corley intended her order to have any preclusive effect on such claims. 7 Judge Corley found that drafts of the due diligence report did not fall into this “theoretical 8 category” or truly implicate “new claims of privilege that Uber has had no opportunity to 9 assert” (see Dkt. No. 2128 at 4–5). This finding was not clearly erroneous. Nor did Judge Corley err in concluding, based on this finding, that Uber had waived its privilege over the draft 11 For the Northern District of California United States District Court 10 reports by failing to timely assert it. 12 13 CONCLUSION For the foregoing reasons, defendants’ motion for relief from Judge Corley’s October 27 14 order is DENIED. All stated objections thereto are OVERRULED. Uber shall produce the draft 15 reports by NOVEMBER 20 AT NOON. 16 17 IT IS SO ORDERED. 18 19 Dated: November 15, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?