Waymo LLC v. Uber Technologies, Inc. et al

Filing 949

ORDER DENYING #779 MOTION FOR RELIEF FROM #731 JUDGE CORLEY'S NONDISPOSITIVE PRETRIAL ORDER RE UBER'S PRIVILEGE LOG by Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 7/18/2017)

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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 UBER’S
PRIVILEGE LOG

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

The magistrate judge overseeing discovery in this action declined to order production of

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certain documents identified on defendants’ privilege log. Plaintiff moves for relief from that

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order pursuant to Civil Local Rule 72. The motion is DENIED.

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STATEMENT
In two related orders regarding defendants’ assertions of privilege and per the discovery

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referral in this action, Magistrate Judge Jacqueline Corley granted plaintiff Waymo LLC’s

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motion to compel production of third-party Stroz Friedberg’s due diligence report (Dkt. No.

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566) and further granted Waymo’s motion to compel compliance with its subpoena to Stroz

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Friedberg (Dkt. No. 670). In doing so, Judge Corley made extensive factual findings regarding

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the relationship between defendants Uber Technologies, Inc., Ottomotto LLC, and Otto

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Trucking LLC, and non-parties Anthony Levandowski and Lior Ron. Significantly, she found

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that Uber had waived any work-product privilege over documents shared with Ottomotto, Otto

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Trucking (collectively, “Otto”), Levandowski, or Ron prior to the execution of the Put Call

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Agreement on April 11, 2016, but specifically noted that “[t]he outcome might be different after

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the signing of the Put Call Agreement” (Dkt. No. 566 at 17 & n.2, 21). The undersigned judge

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overruled objections to the aforementioned orders (Dkt. Nos. 685, 745). Levandowski’s further

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appeal remains pending before the Federal Circuit.

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On June 26, Judge Corley rejected Waymo’s further argument that Uber had also waived

Dkt. No. 637), finding that the execution of the Put Call Agreement gave rise to a “common

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legal interest in defending claims brought by Waymo for misappropriation of trade secrets,

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For the Northern District of California

its privileges over documents shared with Otto, Levandowski, or Ron after April 11, 2016 (see

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United States District Court

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among other things,” such that Uber did not waive privileges over documents shared within the

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common-interest group after that date (see Dkt. No. 731 at 4). Also in her June 26 order, Judge

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Corley noted multiple deficiencies in Uber’s privilege log but concluded that said deficiencies

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were not “so egregious that Uber should have to produce otherwise protected material,

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especially given the volume of log entries and the brief period Uber had to reevaluate the

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privilege log in light of the MTC Order” (id. at 4–6).

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Waymo now moves for relief from Judge Corley’s June 26 order pursuant to Civil Local
Rule 72, challenging the foregoing findings (Dkt. No. 779). This order follows full briefing.

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ANALYSIS
STANDARD OF REVIEW.

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1.

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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

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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)).

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2.

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Waymo’s motion catalogues in detail various deficiencies in Uber’s privilege log and

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DEFICIENCIES IN UBER’S PRIVILEGE LOG.

argues that Judge Corley “clearly erred” in refusing to find a “waiver of all logged documents”
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as a result of said deficiencies (Dkt. Nos. 779 at 1–3, 816 at 1–4). In support of its waiver

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argument, Waymo cites the undersigned judge’s standing order and prior instructions generally

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discussing privilege log requirements (see Dkt. No. 816 at 1). But there is no dispute here that

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Uber must do more to comply with said requirements. Judge Corley found as much and

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accordingly ordered Uber to make further amendments to its privilege log (see Dkt. No. 731 at

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3, 5). Waymo’s objection essentially amounts to disagreement with Judge Corley’s judgment,

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given Uber’s deficient privilege log, about the best way to manage further discovery going

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forward. Waymo’s arguments on this point are unpersuasive. Judge Corley has capably and

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diligently managed the bone-crushing flow of discovery in this case thus far, and remains in the
best position to determine how to handle discovery issues like deficient privilege log entries.

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For the Northern District of California

United States District Court

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Under these circumstances, her decision to strike a balance by requiring further information

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from Uber, while declining to impose Waymo’s drastic suggested remedy of a blanket waiver

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over “otherwise protected material,” was not clearly erroneous.

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3.

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Waymo also objects to Judge Corley’s finding that Uber did not waive its privilege over

DOCUMENTS SHARED WITH LEVANDOWSKI AFTER APRIL 11, 2016.

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documents shared with Levandowski after April 11, 2016, arguing without authority that Uber

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“cannot have it both ways” by asserting a common legal interest with Levandowski post-April

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11, 2016, while representing that it now lacks authority to force Levandowski to return stolen

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files (Dkt. No. 779 at 3–4). Waymo’s motion does not explain how the foregoing positions are

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inherently incompatible, nor does it show that Judge Corley clearly erred in finding a common

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legal interest between Uber and Levandowski based on their indemnification agreement post-

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April 11, 2016, notwithstanding whether or not Uber now has any authority to force

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Levandowski to return stolen files.

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In its reply brief, Waymo offers a slightly different variation of this supposed

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dichotomy, claiming that “Uber must now contend it lacked control over [materials downloaded

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by Levandowski] in order to avoid the application of the crime-fraud exception,” so it “cannot

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claim a ‘shared common interest’ on a privilege log created to log such materials” (Dkt. No.

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816 at 4). Tellingly, Waymo does not cite Judge Corley’s order, which actually held —
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contrary to Waymo’s insinuation — that the crime-fraud exception did not apply because

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Waymo had not shown by a preponderance of the evidence that Uber communicated with its

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counsel “in furtherance of a criminal scheme” (Dkt. No. 731 at 2–3). Whether or not Uber now

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exercises control over any materials downloaded by Levandowski did not bear on, much less

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dictate, the outcome of Judge Corley’s analysis on the crime-fraud exception.

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Despite conceding that a purported common interest must be evaluated at the time of the

illustrated” Uber and Levandowski’s “vastly diverging interests,” which is “compelling

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evidence that the parties understood [that] they lacked a common legal interest with regards to

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Levandowski’s theft even at the time the Put-Call Agreement was signed” (Dkt. Nos. 779 at 4,

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For the Northern District of California

disclosure in question, Waymo also argues that “proceedings in this case have vividly

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United States District Court

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816 at 4–5). But it remains up to Judge Corley, not Waymo, to decide what facts in the record

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constitute “compelling evidence” on issues of privilege. Waymo’s disagreement with Judge

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Corley’s factual findings does not amount to a showing of clear error on this motion.

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4.

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Finally, Waymo raises multiple objections to Judge Corley’s finding that Uber did not

OTHER DOCUMENTS SHARED AFTER APRIL 11, 2016.

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waive its privileges over documents shared with the rest of the common-interest group (i.e.,

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besides Levandowski) after April 11, 2016 (Dkt. No. 779 at 4–5). These objections essentially

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amount to disagreements with Judge Corley’s reasonable inferences from the evidentiary record

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and are thus unavailing.

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First, Waymo criticizes Judge Corley’s reliance on a “Joint Defense, Common Interest

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and Confidentiality Agreement” executed by members of the common-interest group on April

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11, 2016, noting that “the existence of a written agreement is not controlling” (ibid.). This point

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is true, but an agreement does not have to be “controlling” to be found probative of the

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common-interest issue.

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Second, Waymo claims Judge Corley found “that Uber and Otto each having ‘exclusive

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options’ created a common interest” and asserts without authority that “no common interest

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could arise” until the acquisition actually closed (id. at 5; see also Dkt. No. 816 at 5). Waymo

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again misrepresents Judge Corley’s order, which considered not only Uber and Otto’s
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“exclusive options” to close but also the indemnification agreement between them in finding a

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common legal interest (see Dkt. No. 731 at 4). Significantly, and as Judge Corley expressly

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pointed out, “Uber was required to indemnify Levandowski, Ron and Otto even if neither Uber

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nor Otto ever exercised its option to buy/sell” (ibid.). This alone defeats Waymo’s objection.

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Third, Waymo contends Uber’s indemnification obligation could not create a common

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legal interest because the precise scope of that obligation did not finalize until shortly before

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closing (Dkt. Nos. 779 at 5, 816 at 5). But whatever uncertainties remained as to that scope, the

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point remains that Judge Corley found the common-interest group at least “shared a joint

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common legal interest in defending claims brought by Waymo for misappropriation of trade
secrets, among other things” (Dkt. No. 731 at 4). Waymo has not shown that this finding was

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United States District Court

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clearly erroneous.

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Waymo protests in a footnote that, “[e]ven if a common legal interest did arise, Judge

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Corley’s findings were still overbroad because . . . the Court should find waiver with respect to

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any post-April 11 shared communications that were not shared for the purpose of developing

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joint legal strategy under the Indemnification Agreement” (Dkt. No. 779 at 5 n.5). Waymo has

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not actually shown, however, that any communication on Uber’s privilege log falls within this

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hypothetical category. In short, Waymo has not shown that Judge Corley’s finding of common

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legal interest after April 11, 2016, was clearly erroneous.

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CONCLUSION

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For the foregoing reasons, Waymo’s motion for blanket relief from Judge Corley’s order

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regarding Uber’s privilege log is DENIED. Its objections to the order are OVERRULED. This is,

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of course, without prejudice to further challenges before Judge Corley regarding individual

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documents withheld under claims of privilege.

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IT IS SO ORDERED.

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Dated: July 18, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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