Waymo LLC v. Uber Technologies, Inc. et al

Filing 949


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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 UBER’S PRIVILEGE LOG UBER TECHNOLOGIES, INC.; OTTOMOTTO LLC; and OTTO TRUCKING LLC, Defendants. / INTRODUCTION The magistrate judge overseeing discovery in this action declined to order production of 18 certain documents identified on defendants’ privilege log. Plaintiff moves for relief from that 19 order pursuant to Civil Local Rule 72. The motion is DENIED. 20 21 STATEMENT In two related orders regarding defendants’ assertions of privilege and per the discovery 22 referral in this action, Magistrate Judge Jacqueline Corley granted plaintiff Waymo LLC’s 23 motion to compel production of third-party Stroz Friedberg’s due diligence report (Dkt. No. 24 566) and further granted Waymo’s motion to compel compliance with its subpoena to Stroz 25 Friedberg (Dkt. No. 670). In doing so, Judge Corley made extensive factual findings regarding 26 the relationship between defendants Uber Technologies, Inc., Ottomotto LLC, and Otto 27 Trucking LLC, and non-parties Anthony Levandowski and Lior Ron. Significantly, she found 28 1 that Uber had waived any work-product privilege over documents shared with Ottomotto, Otto 2 Trucking (collectively, “Otto”), Levandowski, or Ron prior to the execution of the Put Call 3 Agreement on April 11, 2016, but specifically noted that “[t]he outcome might be different after 4 the signing of the Put Call Agreement” (Dkt. No. 566 at 17 & n.2, 21). The undersigned judge 5 overruled objections to the aforementioned orders (Dkt. Nos. 685, 745). Levandowski’s further 6 appeal remains pending before the Federal Circuit. 7 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 10 legal interest in defending claims brought by Waymo for misappropriation of trade secrets, 11 For the Northern District of California its privileges over documents shared with Otto, Levandowski, or Ron after April 11, 2016 (see 9 United States District Court 8 among other things,” such that Uber did not waive privileges over documents shared within the 12 common-interest group after that date (see Dkt. No. 731 at 4). Also in her June 26 order, Judge 13 Corley noted multiple deficiencies in Uber’s privilege log but concluded that said deficiencies 14 were not “so egregious that Uber should have to produce otherwise protected material, 15 especially given the volume of log entries and the brief period Uber had to reevaluate the 16 privilege log in light of the MTC Order” (id. at 4–6). 17 18 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. 19 ANALYSIS STANDARD OF REVIEW. 20 1. 21 Under FRCP 72, a district judge considering timely objections to a magistrate judge’s 22 nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.” 23 Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing 24 court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United 25 States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 26 2. 27 Waymo’s motion catalogues in detail various deficiencies in Uber’s privilege log and 28 DEFICIENCIES IN UBER’S PRIVILEGE LOG. argues that Judge Corley “clearly erred” in refusing to find a “waiver of all logged documents” 2 1 as a result of said deficiencies (Dkt. Nos. 779 at 1–3, 816 at 1–4). In support of its waiver 2 argument, Waymo cites the undersigned judge’s standing order and prior instructions generally 3 discussing privilege log requirements (see Dkt. No. 816 at 1). But there is no dispute here that 4 Uber must do more to comply with said requirements. Judge Corley found as much and 5 accordingly ordered Uber to make further amendments to its privilege log (see Dkt. No. 731 at 6 3, 5). Waymo’s objection essentially amounts to disagreement with Judge Corley’s judgment, 7 given Uber’s deficient privilege log, about the best way to manage further discovery going 8 forward. Waymo’s arguments on this point are unpersuasive. Judge Corley has capably and 9 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. 11 For the Northern District of California United States District Court 10 Under these circumstances, her decision to strike a balance by requiring further information 12 from Uber, while declining to impose Waymo’s drastic suggested remedy of a blanket waiver 13 over “otherwise protected material,” was not clearly erroneous. 14 3. 15 Waymo also objects to Judge Corley’s finding that Uber did not waive its privilege over DOCUMENTS SHARED WITH LEVANDOWSKI AFTER APRIL 11, 2016. 16 documents shared with Levandowski after April 11, 2016, arguing without authority that Uber 17 “cannot have it both ways” by asserting a common legal interest with Levandowski post-April 18 11, 2016, while representing that it now lacks authority to force Levandowski to return stolen 19 files (Dkt. No. 779 at 3–4). Waymo’s motion does not explain how the foregoing positions are 20 inherently incompatible, nor does it show that Judge Corley clearly erred in finding a common 21 legal interest between Uber and Levandowski based on their indemnification agreement post- 22 April 11, 2016, notwithstanding whether or not Uber now has any authority to force 23 Levandowski to return stolen files. 24 In its reply brief, Waymo offers a slightly different variation of this supposed 25 dichotomy, claiming that “Uber must now contend it lacked control over [materials downloaded 26 by Levandowski] in order to avoid the application of the crime-fraud exception,” so it “cannot 27 claim a ‘shared common interest’ on a privilege log created to log such materials” (Dkt. No. 28 816 at 4). Tellingly, Waymo does not cite Judge Corley’s order, which actually held — 3 1 contrary to Waymo’s insinuation — that the crime-fraud exception did not apply because 2 Waymo had not shown by a preponderance of the evidence that Uber communicated with its 3 counsel “in furtherance of a criminal scheme” (Dkt. No. 731 at 2–3). Whether or not Uber now 4 exercises control over any materials downloaded by Levandowski did not bear on, much less 5 dictate, the outcome of Judge Corley’s analysis on the crime-fraud exception. 6 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 9 evidence that the parties understood [that] they lacked a common legal interest with regards to 10 Levandowski’s theft even at the time the Put-Call Agreement was signed” (Dkt. Nos. 779 at 4, 11 For the Northern District of California disclosure in question, Waymo also argues that “proceedings in this case have vividly 8 United States District Court 7 816 at 4–5). But it remains up to Judge Corley, not Waymo, to decide what facts in the record 12 constitute “compelling evidence” on issues of privilege. Waymo’s disagreement with Judge 13 Corley’s factual findings does not amount to a showing of clear error on this motion. 14 4. 15 Finally, Waymo raises multiple objections to Judge Corley’s finding that Uber did not OTHER DOCUMENTS SHARED AFTER APRIL 11, 2016. 16 waive its privileges over documents shared with the rest of the common-interest group (i.e., 17 besides Levandowski) after April 11, 2016 (Dkt. No. 779 at 4–5). These objections essentially 18 amount to disagreements with Judge Corley’s reasonable inferences from the evidentiary record 19 and are thus unavailing. 20 First, Waymo criticizes Judge Corley’s reliance on a “Joint Defense, Common Interest 21 and Confidentiality Agreement” executed by members of the common-interest group on April 22 11, 2016, noting that “the existence of a written agreement is not controlling” (ibid.). This point 23 is true, but an agreement does not have to be “controlling” to be found probative of the 24 common-interest issue. 25 Second, Waymo claims Judge Corley found “that Uber and Otto each having ‘exclusive 26 options’ created a common interest” and asserts without authority that “no common interest 27 could arise” until the acquisition actually closed (id. at 5; see also Dkt. No. 816 at 5). Waymo 28 again misrepresents Judge Corley’s order, which considered not only Uber and Otto’s 4 1 “exclusive options” to close but also the indemnification agreement between them in finding a 2 common legal interest (see Dkt. No. 731 at 4). Significantly, and as Judge Corley expressly 3 pointed out, “Uber was required to indemnify Levandowski, Ron and Otto even if neither Uber 4 nor Otto ever exercised its option to buy/sell” (ibid.). This alone defeats Waymo’s objection. 5 Third, Waymo contends Uber’s indemnification obligation could not create a common 6 legal interest because the precise scope of that obligation did not finalize until shortly before 7 closing (Dkt. Nos. 779 at 5, 816 at 5). But whatever uncertainties remained as to that scope, the 8 point remains that Judge Corley found the common-interest group at least “shared a joint 9 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 11 For the Northern District of California United States District Court 10 clearly erroneous. 12 Waymo protests in a footnote that, “[e]ven if a common legal interest did arise, Judge 13 Corley’s findings were still overbroad because . . . the Court should find waiver with respect to 14 any post-April 11 shared communications that were not shared for the purpose of developing 15 joint legal strategy under the Indemnification Agreement” (Dkt. No. 779 at 5 n.5). Waymo has 16 not actually shown, however, that any communication on Uber’s privilege log falls within this 17 hypothetical category. In short, Waymo has not shown that Judge Corley’s finding of common 18 legal interest after April 11, 2016, was clearly erroneous. 19 CONCLUSION 20 For the foregoing reasons, Waymo’s motion for blanket relief from Judge Corley’s order 21 regarding Uber’s privilege log is DENIED. Its objections to the order are OVERRULED. This is, 22 of course, without prejudice to further challenges before Judge Corley regarding individual 23 documents withheld under claims of privilege. 24 25 IT IS SO ORDERED. 26 27 Dated: July 18, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 28 5

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