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Waymo LLC v. Uber Technologies, Inc.

United States District Court, N.D. California

November 15, 2017

WAYMO LLC, Plaintiff,
v.
UBER TECHNOLOGIES, INC.; OTTOMOTTO LLC; and OTTO TRUCKING LLC, Defendants.

          ORDER DENYING MOTION FOR RELIEF FROM JUDGE CORLEY'S NONDISPOSITIVE PRETRIAL ORDER RE DUE DILIGENCE REPORT DRAFTS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         The magistrate judge overseeing discovery in this action granted plaintiff's motion to compel production of any drafts of a due diligence report. Defendants move for relief from that order pursuant to Civil Local Rule 72. The motion is Denied.

         STATEMENT

         On October 27, per the discovery referral in this action, Magistrate Judge Jacqueline Corley granted plaintiff Waymo LLC's motion to compel production of any drafts of the due diligence report prepared by non-party Stroz Friedberg, overruling defendants Uber Technologies, Inc., and Ottomotto LLC's (collectively, “Uber”) assertion of privilege in the process (Dkt. No. 2128). Judge Corley found, among other things, that Uber should have asserted privilege over the drafts earlier in the litigation, and rejected its attempt to do so at this late stage (id. at 4-5). Uber moves pursuant to Civil Local Rule 72 for relief from that order (Dkt. No. 2152). This order follows full briefing. The motion hearing currently set for November 28 is unnecessary and Vacated.

         ANALYSIS

         1. Standard of Review.

         Under FRCP 72, a district judge considering timely objections to a magistrate judge's nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.” Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)).

         2. Uber's Motion for Relief.

         Some procedural background about this litigation informs the instant dispute and warrants brief summary. On March 16 of this year, an expedited discovery order required in part that defendants produce all “emails, memoranda, PowerPoints, text messages, or notes that have forwarded, used, or referred to any part of” the files and documents downloaded and taken by non-party Anthony Levandowski from Waymo (Dkt. No. 61 ¶ 4). Shortly thereafter, on March 28, defendants requested an “in-chambers conference” to discuss a “confidential matter” that turned out to be the first mention of the due diligence report and defendants' intent to assert privilege over said report (see Dkt. Nos. 122, 131 at 12:22-13:5). On May 11, a provisional relief order further required, among other things, that defendants cause their “officers, directors, employees, and agents” to return the downloaded materials “and all copies, excerpts, and summaries thereof, ” conduct a thorough investigation, and provide a detailed accounting and communications log regarding said materials. That order expressly called out Stroz Friedberg and its due diligence report (see Dkt. No. 433 ¶¶ 2, 4-5).

         The subsequent debate over defendants' and Levandowski's assertions of privilege over the due diligence report and related materials - a more detailed summary of which is included in Judge Corley's order and need not be repeated here (see Dkt. No. 2128 at 2-5) - featured as a central issue in this litigation for months. That debate persisted until September 13 of this year, when the Federal Circuit affirmed this Court's rejection of said assertions.

         Uber now complains that it “had no opportunity to assert” privilege over drafts of the due diligence report, and that Judge Corley clearly erred in finding (see Id. at 4-5):

Even though the drafts were not shared with Uber, it could not have been a surprise that drafts existed. Stroz was and is Uber's agent. Uber had to have known or at least should have inquired if drafts existed. Apparently it did not do so until after the Federal Circuit ruling. Under the district court's standing order, this assertion of privilege came too late.

         Given the history of this litigation, including prior orders entered herein, this order finds no clear error in Judge Corley's decision. ...


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