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Waymo LLC v. Uber Technologies, Inc.

United States District Court, N.D. California

April 10, 2017

WAYMO LLC, Plaintiff,
v.
UBER TECHNOLOGIES, INC., et al., Defendants.

          ORDER DENYING MOTION TO MODIFY PRIVILEGE LOG REQUIREMENTS BASED ON FIFTH AMENDMENT

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this action for trade secret misappropriation, patent infringement, and unfair competition, a non-party moves to prevent defendants from providing a conventional privilege log based on Fifth Amendment and attorney-client grounds. The motion is Denied.

         STATEMENT

         A cornerstone of the case by Waymo LLC is its evidence that non-party Anthony Levandowski downloaded over 14, 000 files containing its trade secrets and proprietary information pertaining to self-driving cars to his company-issued laptop, transferred them to a portable storage device, wiped the laptop clean, then promptly left his position at Waymo with the downloads to start his own competing autonomous-vehicle ventures, defendants Ottomotto LLC and Otto Trucking LLC. Shortly thereafter, defendant Uber Technologies, Inc., acquired the new ventures for $680 million. Uber then quickly progressed in its own development of competing self-driving vehicles. This, Waymo contends, is how Uber accomplished in only nine months what it took Waymo seven years to do.

         Waymo has moved for provisional relief against defendants. A hearing on that motion remains scheduled for May 3. On March 16, after a case management conference, an order approved a plan for expedited discovery (Dkt. No. 61). That order required, among other things, that defendants produce by March 31 “all files and documents downloaded by Anthony Levandowski . . . before leaving plaintiff's payroll and thereafter taken by [him], ” and “the card reader, thumb drive, or other media used for the downloads, as well as all subsequent emails, memoranda, PowerPoints, text messages, or notes that have forwarded, used, or referred to any part of said downloaded material” (id. at ¶ 4).

         On March 28, defendants requested a non-public conference to address a “confidential matter . . . to protect legitimate privacy concerns” (Dkt. No. 122 at 2). Defendants did not disclose the subject of the requested conference in advance to either Waymo or the Court. Nevertheless, the Court convened the conference provisionally under seal with the caveat that the transcript might be made public afterwards. Counsel for both sides appeared but new, separate counsel appeared for non-party Levandowski. (The transcript from the conference became public soon thereafter.)

         During the conference, defense counsel indicated that, in the process of acquiring Levandowski's companies, Uber obtained a “due diligence” report prepared by a “third party” that may have referenced allegedly downloaded documents. To facilitate access to information held by Levandowski, both sides of the transaction and, this order assumes for the sake of argument, the third party entered into a joint defense agreement, in an effort to cloak the due diligence review by the third party under a claim of privilege. Evidently, some or all of the 14, 000-plus files downloaded from Waymo were then disclosed to the third party or to Uber, although that is an interpretation of the circumstances and not a direct admission.

         At the conference, counsel for defendants further indicated that they intended to put that report on a privilege log. Pursuant to a standing order, privilege logs must identify, with respect to each communication for which a claim of privilege is made (Judge Alsup's Supplemental Order to Order Setting Initial CMC in Civil Cases (effective Mar. 17, 2016), http://www.cand.uscourts.gov/whaorders):

(a) all persons making or receiving the privileged or protected communication;
(b) the steps taken to ensure the confidentiality of the communication, including affirmation that no unauthorized persons have received the communication;
(c) the date of the communication; and
(d) the subject matter of the communication.

         Additionally, privilege logs must be sufficiently detailed and informative to justify the claimed privilege(s), and indicate the locations where any purportedly privileged documents were found.

         Counsel for Levandowski, however, took the position that disclosing even the identity of the third party who had prepared the due diligence report on a privilege log would compromise Levandowski's Fifth Amendment privilege against self-incrimination. Counsel for Levandowski therefore requested that defense counsel be prohibited from making any such disclosure. The undersigned judge declined to grant the requested relief during the conference and indicated that Levandowski's Fifth Amendment argument should be made via formal motion, if at all.

         Consequently, Levandowski now makes the instant motion based on claims of Fifth Amendment privilege and attorney-client privilege (Dkt. No. 147). The motion record is thin but includes a joint defense, common interest and confidentiality agreement (“joint defense agreement”), dated in April 2016, between the two sides in Uber's acquisition of Levandowski's companies (Dkt. No. 147-1). The joint defense agreement referred to “potential investigations, litigation, and/or other proceedings relating to the proposed transactions.” The “litigation” or “other proceedings” under contemplation went unidentified. The agreement stated that the parties had a “common interest in opposing” such proceedings. It recited that the parties had already shared with each other “confidential and proprietary documents containing financial, operating and planning data.” The agreement continued with classification provisions to maintain secrecy. It made no mention, however, of the Fifth Amendment or of how to deal with privilege logs.

         Waymo opposes the motion. Defendants - despite defense counsel's insistence that he “would love to put Mr. Levandowski on the stand” and asides that Levandowski's silence has had an “adverse impact” on defendants (e.g., Dkt. No. 131 at 16:3-16:11) - ...


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