Waymo LLC v. Uber Technologies, Inc. et al

Filing 745

ORDER DENYING #726 #727 #729 #730 MOTIONS FOR RELIEF FROM #670 JUDGE CORLEY'S NONDISPOSITIVE PRETRIAL ORDER RE SUBPOENA TO STROZ FRIEDBERG by Judge Alsup. (whalc2, COURT STAFF) (Filed on 6/27/2017)

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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 RELIEF FROM JUDGE
CORLEY’S NONDISPOSITIVE
PRETRIAL ORDER RE
SUBPOENA TO STROZ
FRIEDBERG

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

INTRODUCTION
The magistrate judge overseeing discovery in this action granted plaintiff’s motion to

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compel compliance with its subpoena to a third-party forensics firm and denied motions to

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quash said subpoena. Two defendants, the third-party forensics firm, and two non-parties move

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for relief from the order pursuant to Civil Local Rule 72. The motions are DENIED.

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STATEMENT
On June 5, per the discovery referral in this action, Magistrate Judge Jacqueline Corley

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issued an order granting plaintiff Waymo LLC’s motion to compel production of a due

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diligence report prepared by third-party forensics firm Stroz Friedberg (Dkt. No. 566).

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Defendants Uber Technologies, Inc., and Ottomotto LLC (collectively, “Uber”) moved for

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relief from that order pursuant to Civil Local Rule 72, as did defendant Otto Trucking LLC and

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non-party Anthony Levandowski. A prior order denied all three motions on June 21 (Dkt. No.

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685). That order also recited the relevant procedural history, which need not be repeated here.

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Also on June 21, Judge Corley issued another order granting Waymo’s motion to

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compel compliance with its subpoena to Stroz Friedberg and denying motions by defendants

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and Levandowski to quash said subpoena (Dkt. No. 670). Uber, Levandowski, Stroz Friedberg,

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and non-party Lior Ron now move for relief from that order (Dkt. Nos. 726–27, 729–30).

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ANALYSIS

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STANDARD OF REVIEW.

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

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

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For the Northern District of California

United States District Court

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States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)). As before, this order does not attempt to

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retread factual findings or legal analysis in Judge Corley’s order. Additionally, insofar as the

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instant motions merely repeat arguments from the first round of motions for relief from Judge

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Corley’s June 5 order (including for purposes of preserving the arguments for further appeal),

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those arguments fail for the same reasons previously stated in the June 21 order denying those

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motions for relief. Only new arguments are specifically addressed herein.

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2.

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In support of its position before Judge Corley that “the due diligence report, its exhibits,

UBER’S NEW OBJECTIONS.

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and documents and communications pertaining thereto shared among the joint defense parties

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are Uber’s protected attorney-work product,” Uber argued that, “[e]ven if there was no common

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legal interest when the Term Sheet was signed, there was undoubtedly one by April 11, 2016,”

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so “documents responsive to the Stroz Subpoena dated on or after April 11, 2016, which

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includes the Due Diligence Report and Exhibits, are protected attorney work product” (Dkt. No.

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581 at 2–4 (emphasis added)). In her order, Judge Corley responded (Dkt. No. 670 at 7–8):

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Uber also argues in the alternative that it did not waive any
privilege in any post-April 11, 2016 communications with Stroz or
post-April 11, 2016 Stroz attorney work-product. . . . The only
such communications Uber identifies, however, are the final Stroz
Report and its exhibits. . . . As for any other post-April 11, 2016
communications, they must be on Uber’s privilege log and thus the
Court will address them in connection with the hearing on Uber’s
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privilege log . . . . If they are not on Uber’s privilege log, Uber has
waived any privilege and they must be produced . . . .

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Uber objects to the foregoing because “the Stroz Subpoena seeks . . . ‘all documents
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and communications’ between and/or among Uber, Ottomotto, Otto Trucking, Levandowski,
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and Ron or their respective counsel. Thus, Stroz may have responsive documents that do not
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appear on any privilege log Uber has served” pursuant to the expedited discovery order dated
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March 16, and “Uber should not be deemed to have waived privilege over communications or
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work product” within those documents (Dkt. No. 727 at 1–2 (citation omitted)).
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To be clear, the requests for production at issue seek “documents and communications”
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pertaining to Stroz Friedberg’s due diligence investigation and report, not “all documents and
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undersigned judge’s standing order, a party asserting privilege must provide a privilege log “at
For the Northern District of California

United States District Court

communications” generally as Uber suggests (see Dkt. No. 581-1 at 12–16). Moreover, per the
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the time of assertion.” See Judge Alsup’s Supplemental Order to Order Setting Initial CMC in
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Civil Cases (effective Mar. 17, 2016), http://www.cand.uscourts.gov/whaorders. Thus, insofar
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as Uber has asserted any privilege beyond the scope of its initial privilege log (provided
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pursuant to the expedited discovery order dated March 16 (Dkt. No. 61)) during the course of
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this litigation, it should have already supplemented that privilege log accordingly.
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Given the foregoing, it remains a mystery what responsive “documents and
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communications” could fall outside the scope of both the expedited discovery order and the
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privilege issues that have been litigated thus far in connection with Stroz Friedberg’s due
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diligence investigation and report. Uber offered no details about this theoretical category of
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“documents and communications” before Judge Corley or in its instant motion for relief.
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Supposing for the sake of argument, however, that this theoretical category exists and truly
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implicates new claims of privilege that Uber has had no opportunity to assert, it does not appear
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that Judge Corley intended her order to have any preclusive effect on such claims. Her order,
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read in context, simply responded to Uber’s specific argument concerning documents and
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communications that have long been at issue and over which Uber either has or should have
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already asserted any claims of privilege. Put differently, the challenged part of her order did not
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contemplate, much less decide, the waiver issue Uber is now objecting over. It is therefore not

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an appropriate basis for finding clear error under FRCP 72.

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Insofar as Uber’s “objection” is essentially a request to clarify that Judge Corley’s order

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did not purport to find any waiver of privileges that Uber has had no opportunity to assert, that

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request should be made to Judge Corley in the first instance. Insofar as Uber intends to assert

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new claims of privilege over some theoretical category of “documents and communications”

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that has not yet been identified or litigated, those claims should likewise be made before Judge

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Corley in the first instance and in full compliance with the undersigned judge’s standing order.

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Uber also claims Judge Corley erred in “holding that ‘by relying on an agreement with
Stroz, [Uber and Levandowski] have waived any privilege in other agreements with Stroz,’”

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For the Northern District of California

United States District Court

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citing non-binding decisions for the proposition that “[t]here can be no waiver when a party

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relies on only non-privileged portions of a document” (Dkt. No. 727 at 2–3). Once again, Uber

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presents an incomplete picture. Judge Corley’s order went on to say, “It is fundamentally unfair

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[for Uber] to claim the engagement agreement supports a certain fact while at the same time

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withholding other agreements directly relevant to that fact” (Dkt. No. 670 at 8). Consistent with

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this explanation, she cited a decision from this district that found a waiver of privilege where

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the claimant sought to use the privilege as both sword and shield. See Regents of Univ. of Cal.

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v. Micro Therapeutics, Inc., No. C 03 05669, 2007 WL 2069946, at *2–4 (N.D. Cal. July 13,

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2007) (Judge Richard Seeborg). None of the decisions cited by Uber purported to excuse a

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claimant’s use of privilege as both sword and shield. Moreover, Judge Corley had separate,

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independent bases for finding waiver under the circumstances of this case, which she explained

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in both the order at issue and in her previous order concerning the due diligence report (see Dkt.

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No. 670 at 8 (citing Dkt. No. 566 at 13–22)). This finding was not clearly erroneous.

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Uber also repeats its argument — styled in its previous motion for relief as a “request

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for clarification” (see Dkt. No. 686) — that defendants, Levandowski, and Ron “shared a

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common legal interest at least as of April 11, 2016,” for purposes of waiver (Dkt. No. 727 at

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3–4). Shortly after Uber filed its motion for relief, Judge Corley actually ruled in its favor on

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this very issue (see Dkt. No. 731 at 3–4). This objection is therefore moot.
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LEVANDOWSKI’S NEW OBJECTIONS.

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The only arguably new objection raised in Levandowski’s motion is his complaint that

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“Judge Corley advance[d] no explanation” why the “constructive possession” exception

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articulated in Couch v. United States, 409 U.S. 322, 333 (1973), could not apply to him under

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these circumstances. But Judge Corley did explain both her reasoning and the factual findings

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that led to her conclusion (Dkt. No. 670 at 5). Indeed, Levandowski quotes her factual findings

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immediately before dismissing them as “not accurate” and proceeding to criticize her for

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supposedly advancing “no explanation” (Dkt. No. 726 at 5). This objection is baseless.

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further appeal is GRANTED as stated below.
STROZ FRIEDBERG’S OBJECTIONS.

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For the Northern District of California

United States District Court

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Levandowski’s request for a stay of Judge Corley’s order to permit an opportunity for

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On June 13, Stroz Friedberg submitted a response to Waymo’s motion to compel

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wherein it repeatedly represented that it “[stood] ready” to produce in compliance with the

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subpoena if ordered to do so by the Court (Dkt. No. 614 at 1, 3, 5). Now, however, Stroz

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Friedberg “objects” to Judge Corley’s order on the basis that it “simply cannot” comply by the

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stated deadline today. It therefore requests modification of her order to “(1) allow Stroz to

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perform its production on a rolling basis; (2) and to complete the production . . . and to generate

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a privilege log within 30 days after the parties reach an agreement on search parameters and a

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production protocol, and the Order becomes effective after any appeals” (Dkt. No. 730 at 5).

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First, though styled as a motion for relief under Civil Local Rule 72, Stroz Friedberg’s

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request makes no attempt to show that Judge Corley’s order was “clearly erroneous or contrary

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to law” as required by FRCP 72. Second, the request is inconsistent with Stroz Friedberg’s

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prior representations that it “[stood] ready” to produce in compliance with the subpoena as of

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June 13. The request is therefore DENIED, although Stroz Friedberg will incidentally obtain

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some relief as a result of the stay granted herein.

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Ron’s putative motion for relief likewise makes no attempt to show that Judge Corley’s

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RON’S OBJECTIONS.

order was “clearly erroneous or contrary to law” under FRCP 72. Instead, the thrust of his
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motion is his protest that Stroz Friedberg’s compliance with the subpoena would jeopardize his

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personal privacy interests. Ron claims he is raising this issue for the first time now because he

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was previously unaware of the subpoena’s existence (Dkt. No. 729 at 1).

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Levandowski has raised a similar privacy issue before Judge Corley. Indeed, her order

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expressly stated, “Once [the privilege issue] is finally resolved, the Court will address whether a

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protocol is appropriate to protect any privacy interests” (Dkt. No. 670 at 9). Ron, however, is

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not content with this because he believes “such a protocol would only be directed at protecting

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Mr. Levandowski’s privacy interests” (Dkt. No. 729 at 3 n.2). He therefore requests either

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modification of Judge Corley’s order or issuance of a protective order.
Ron’s request is not a proper basis to modify Judge Corley’s order under FRCP 72 and

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For the Northern District of California

United States District Court

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in any event should be directed first to Judge Corley, who remains in the best position to

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evaluate it. This order therefore DENIES the request without prejudice to its renewal before her.

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CONCLUSION

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For the foregoing reasons, all motions for relief from Judge Corley’s order granting

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Waymo’s motion to compel compliance with its subpoena to Stroz Friedberg are DENIED. All

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stated objections to Judge Corley’s order are OVERRULED.

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Judge Corley had required Stroz Friedberg to comply with her order by today. This

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order STAYS her order until JULY 5 AT NOON to give defendants and Levandowski an

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opportunity to seek emergency relief from the Federal Circuit. Again, in light of the pressing

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need for discovery to proceed in order to meet the agreed-upon trial date of October 10, 2017,

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any further stay must be requested from the Federal Circuit.

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IT IS SO ORDERED.

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Dated: June 27, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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