United States District Court, N.D. California
NOTICE RE ANTHONY LEVANDOWSKI'S IN CAMERA
SUBMISSION ON APRIL 19, 2017
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
discovery hearing on April 12, the undersigned judge required
non-party Anthony Levandowski, through separate counsel, to
submit in camera a privilege log justifying any assertion of
Fifth Amendment privilege in response to two production
requests from plaintiff Waymo LLC (RFP Nos. 1 and 3 on a
subpoena dated April 9) (see Dkt. Nos. 212; 230 at
77:2-78:2). The undersigned judge observed that the privilege
log should not be a long document and could be supplied in
short order but nevertheless acquiesced to counsel's
protest that more time was required by giving Levandowski
until April 19 to submit his privilege log (Dkt. No. 230 at
undersigned judge further required that Levandowski give
Waymo “enough of the argument so that they can
respond” to his assertion of Fifth Amendment privilege
(id. at 79:12-79:18). Counsel for Levandowski agreed
to this requirement (id. at 79:19) and further
agreed that Levandowski's in camera privilege log must
“provide enough information to . . . allow the Court to
be able to determine that the invocation of the Fifth
Amendment is proper” (id. at 79:6-79:8).
April 19, Levandowski submitted a public brief summarizing
“general legal principles” concerning the Fifth
Amendment (see Dkt. No. 244 at 2). That brief
provided no meaningful information whatsoever to justify,
even at an abstract level, application of those principles in
this case and in response to Waymo's production requests.
As Waymo correctly pointed out in its objection, the brief
failed to comply with the Court's directive to provide
“enough of the argument” so that Waymo could
respond (see Dkt. No. 250).
in camera submission largely failed to remedy the
deficiencies of his public brief. The “privilege
log” he submitted in camera contained over one
thousand pages, over twenty thousand entries,
and appeared to be two spreadsheets generated by automated
data compilation with no intelligent review or analysis
involved. To list every deficiency in that “privilege
log” would be repetitive and unnecessary. To give just
one example, entire pages of the spreadsheet in
response to RFP No. 3 consisted of line items that identified
“document type” as “loose e-mail
attachment” and were otherwise blank.
Similarly, dozens of pages of the spreadsheet in
response to RFP No. 1 appeared dedicated to email attachments
identified only by email account, time stamp, and otherwise
wholly non-descriptive information. It would be wrong to
suggest that any of those “privilege log” entries
could justify any claim of privilege.
the foregoing problems, the Court stayed its hand as to
Waymo's objection for two reasons. First, also
at the April 12 hearing, all discovery disputes were referred
to Judge Corley (Dkt. Nos. 230 at 106:23-106:25; 237).
Second, counsel for Levandowski represented (in
supplemental briefs accompanying the “privilege
log”) that they were continuing manual
document-by-document review of items potentially responsive
to Waymo's production requests and would supplement the
“privilege log” as appropriate.
of further supplementing the “privilege log”
submitted in camera on April 19, however, Levandowski
submitted an apparently preemptive discovery letter brief to
Judge Corley on May 23 raising two issues (Dkt. No. 492):
First, does the fact that documents with respect to
which an individual claims a Fifth Amendment privilege
against compelled production are also attorney-client
privileged negate the individual's right to make an
in camera showing to demonstrate his right to invoke
the Fifth? . . . Second, whether Mr.
Levandowski's public briefing under Judge Alsup's
letter further stated that Waymo's opposition to
Levandowski's public brief concerning his assertion of
Fifth Amendment privilege “is still pending before
Judge Alsup.” The letter also mentioned that
Levandowski “has agreed to supplement his in
camera submission with the Court no later than Friday,
May 26, 2017, ” and goes on to say, “To the
extent the Court needs to evaluate the validity of Mr.
Levandowski's invocation of the privilege, it can review
Mr. Levandowski's in camera submission”
(id at 2).
heels of that letter came a discovery letter brief by Waymo
seeking to compel Levandowski to “produce a log
identifying, on a document-by-document basis, information
being withheld under any claim of privilege, including the
Fifth Amendment, in response to RFP No. 3 of Waymo's
April 9th subpoena” (Dkt. No. 493). Waymo does not seek
similar document-by-document logging of items responsive to
RFP No. 1 at this time (id at 2 n.3).
notice clarifies three things. First, whether
Levandowski has any valid claim of Fifth Amendment privilege
in response to discovery is a matter encompassed by the
referral to Judge Corley. That no action has yet been taken
on Waymo's prior objection (Dkt. No. 250) in no way
prejudices her ability to rule on the merits of this dispute.
Second, insofar as Levandowski's May 23 letter
insinuates that the undersigned judge has somehow blessed
Levandowski's public and in camera submissions on this
issue thus far, this notice expressly rejects that
insinuation. Levandowski's submissions thus far have been
wholly inadequate to support his sweeping claims of
privilege. Third, the undersigned judge received
Levandowski's in ...