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Waymo LLC v. UBER Technologies, Inc.

United States District Court, N.D. California

July 5, 2017

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

          ORDER REGARDING WAYMO SUBPOENA TO LEVANDOWSKI RE: DKT. NOS. 250, 492, 493, 539, 595-3, 596.

          JACQUELINE SCOTT CORLEY United States Magistrate Judge.

         Waymo seeks to compel non-party Anthony Levandowski to produce documents relevant to this action against Uber for trade secret misappropriation. After carefully considering the parties' submissions, including Levandowski's in camera submissions, the Court concludes that Levandowski has properly asserted his Fifth Amendment privilege against compelled incrimination. Waymo's motion to compel is therefore DENIED.

         BACKGROUND

         Waymo served Levandowski with a third-party subpoena for documents and a deposition on April 9, 2017. At a hearing three days later, the district court ordered Levandowski to produce documents responsive to Request Nos. 1 and 3. (Dkt. No. 230 at 72:2-4.) The requests are as follows:

REQUEST FOR PRODUCTION NO. 1: The Misappropriated Materials, including any media that contains or contained the Misappropriated Materials, any documents derived from, or reflecting the substance of, the Misappropriated Materials outside of Waymo, and any documents reflecting any meetings or discussions regarding the substance of the Misappropriated Materials outside of Waymo;
REQUEST FOR PRODUCTION NO. 3: All communications between You and Uber between January 2015 and January 2016.

         The district court also ordered Levandowski to submit a privilege log of any withheld documents in camera so the court could evaluate whether the log is incriminating. (Id. at 78:21-79:5.) The court also required Levandowski to give Waymo “‘enough of the argument so that they can respond” to his assertion of the Fifth Amendment privilege. (Id. at 79:12-18.)

         Levandowski produced some documents in response to the subpoena, along with a privilege log in camera for the district court. He also submitted a public brief summarizing Fifth Amendment legal principles. The district court concluded this submission “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.” (Dkt. No. 501 at 2.) Further, the privilege log contained over 1000 pages and 20, 000 different entries, “and appeared to be two spreadsheets generated by automated data compilation with no intelligent review or analysis involved.” (Id.)

         In the meantime, Levandowski produced additional documents to Waymo. On June 2, 2017, Levandowski supplemented his in camera submission to the Court. As part of the supplementation, he refined and added more detail to his in camera privilege log. He also submitted a further public brief in support of his invocation of the privilege, and, in particular, why the privilege allows him to resist even the submission of a privilege log, along with a further in camera written submission. Waymo responded by moving to compel “all documents withheld on the basis of the Fifth Amendment privilege.” (Dkt. No. 595-3.)

         On May 11, 2017, the district court made a formal referral to the United States Attorney's Office for “investigation of possible theft of trade secrets.” (Dkt. No. 428.)

         DISCUSSION

         A witness may invoke the Fifth Amendment privilege against self-incrimination in a civil proceeding if “the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that manner.” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000). Further, “an individual may invoke the Fifth Amendment to avoid producing documents on the basis that the act of production ‘may have a compelled testimonial aspect' as to that individual.” Waymo LLC v. Uber Techs., Inc., 319 F.R.D. 284, 289 (N.D. Cal. 2017) (citing United States v. Hubbell, 530 U.S. 27, 36 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976)). The privilege extends to those circumstances in which disclosures “could provide an indirect link to incriminating evidence.” Glanzer, 232 F.3d at 1263. Levandowski contends that requiring him to produce documents-and even a privilege log-responsive to Request Nos. 1 and 3 (in part) would violate his Fifth Amendment right. After reviewing the parties' submissions, including Levandowski's in camera submissions, the Court agrees.

         First, it is undisputed that this lawsuit implicates Levandowski's Fifth Amendment privilege. Waymo has repeatedly accused Levandowski of stealing Waymo's trade secrets-a crime under state and federal law-and the district court made a formal referral to the United States Attorney's Office to investigate the possible criminal misappropriation of Waymo's trade secrets. Indeed, the district court found that Waymo had made a strong showing that Levandowski downloaded and took with him over 14, 000 confidential and proprietary Waymo files. (Dkt. No. 433 at 7.) Levandowski thus faces at least the possibility that he will be prosecuted for stealing Waymo's trade secrets. See Glanzer, 232 F.3d at 1263.

         Second, requiring Levandowski to produce the “Misappropriated Materials, ” or documents referring to the Misappropriated Materials in response to Request No. 1, could directly incriminate him for stealing trade secrets. “By producing documents in compliance with the subpoena, the witness admits that the documents exist, are in his possession or control, and are authentic.” Doe v. United States (In re Grand Jury Subpoena), 383 F.3d 905, 909 (9th Cir. 2004). Compelling Levandowski to produce a privilege log in response to Request No. 1 could similarly implicate him in the trade secrets crime. A privilege log entry would mean that Levandowski possesses Misappropriated Materials or at least discussed them. Such an admission could be directly incriminating or at least “furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951). Indeed, Waymo does not even dispute that requiring a privilege log for documents responsive to Request No. 1 would implicate Levandowski's Fifth Amendment privilege; it previously moved to require Levandowski “to produce a log identifying, on a document-by-document basis, information being withheld under any claim of ...


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