Waymo LLC v. Uber Technologies, Inc. et al, No. 3:2017cv00939 - Document 685 (N.D. Cal. 2017)
Court Description: ORDER DENYING 572 574 575 MOTIONS FOR RELIEF FROM 566 JUDGE CORLEY'S NONDISPOSITIVE PRETRIAL ORDER RE DUE DILIGENCE REPORT by Judge Alsup. (whalc2, COURT STAFF) (Filed on 6/21/2017)
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Waymo LLC v. Uber Technologies, Inc. et al Doc. 685 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 For the Northern District of California United States District Court 10 11 12 13 No. C 17-00939 WHA WAYMO LLC, Plaintiff, ORDER DENYING MOTIONS FOR RELIEF FROM JUDGE CORLEY’S NONDISPOSITIVE PRETRIAL ORDER RE DUE DILIGENCE REPORT v. UBER TECHNOLOGIES, INC., et al., Defendants. / 14 15 INTRODUCTION 16 The magistrate judge overseeing discovery in this action granted plaintiff’s motion to 17 compel and ordered production of a due diligence report previously withheld under claims of 18 privilege. Defendants and a non-party move for relief from the order pursuant to Civil Local 19 Rule 72. The motions are DENIED. 20 21 STATEMENT The due diligence report by forensics firm Stroz Friedberg at the heart of this dispute 22 first came to light during a non-public conference on March 29, when counsel for all defendants 23 — Uber Technologies, Inc., Ottomotto LLC, and Otto Trucking LLC — explained that, before 24 Uber acquired Ottomotto, “some due diligence was done.” Counsel revealed that “[a] third 25 party prepared a report based on that due diligence,” and that defendants intended to put the 26 report on a privilege log (Dkt. No. 131 at 12:23–13:1). Non-party Anthony Levandowski then 27 moved — unsuccessfully — to prevent defendants from disclosing even the basic information 28 about the due diligence report required for privilege log purposes (Dkt. No. 147). Dockets.Justia.com After the Federal Circuit rejected Levandowski’s appeal from this Court’s denial of his 1 2 motion, plaintiff Waymo LLC moved to compel production of the due diligence report (Dkt. 3 No. 321). Per the discovery referral in this action, Magistrate Judge Jacqueline Corley heard 4 and decided Waymo’s motion (see Dkt. Nos. 237, 350). After full briefing (see Dkt. Nos. 369, 5 379, 445, 474, 524), oral argument (Dkt. No. 516), and in camera review of the due diligence 6 report, Judge Corley issued an order setting forth detailed findings of fact and concluding that 7 (1) the report is not protected by any attorney-client privilege, (2) Uber waived any work- 8 product privilege over the report, and (3) Waymo has a substantial need for parts of the report 9 such that those parts must be produced even if privileged as work product (Dkt. No. 566).1 The factual background of this dispute is summarized in detail in Judge Corley’s 11 For the Northern District of California United States District Court 10 excellent order and need not be recited here. For present purposes, however, it bears repeating 12 that, in connection with Uber’s acquisition of Ottomotto, Morrison and Foerster (“MoFo”) and 13 O’Melveny and Myers (“OMM”) represented Uber and Ottomotto, respectively. Levandowski 14 individually retained John Gardner as his personal attorney in connection with Stroz Friedberg’s 15 due diligence investigation against him (see id. at 4). Additionally, Stroz Friedberg’s 16 investigation of Lior Ron is at issue because Ron also previously worked at Waymo, co- 17 founded Ottomotto with Levandowski, and participated in the alleged “common interest” or 18 “joint defense” arrangement between defendants and Levandowski. Uber and Ottomotto (collectively, “Uber”) moved for relief from Judge Corley’s order 19 20 pursuant to Civil Local Rule 72 (Dkt. No. 575). Otto Trucking, now represented by separate 21 counsel, also filed its own motion for the same relief (Dkt. No. 572), as did Levandowski (Dkt. 22 No. 574). This order follows full briefing, including replies. ANALYSIS 23 24 1. 25 Under FRCP 72, a district judge considering timely objections to a magistrate judge’s 26 STANDARD OF REVIEW. nondispositive order must defer to the order unless it is “clearly erroneous or contrary to law.” 27 28 1 This dispute actually concerns both the due diligence report and its exhibits. For brevity’s sake, unless otherwise specified, this order refers to both collectively as “the due diligence report.” 2 1 Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The reviewing 2 court may not simply substitute its judgment for that of the deciding court.” Ibid. (citing United 3 States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988)). This order does not attempt to retread all 4 the factual findings and legal analysis in Judge Corley’s order but merely addresses key points 5 raised in the instant motions for relief.2 6 7 8 9 2. ATTORNEY-CLIENT PRIVILEGE. A. Legal Framework. The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures. Because it impedes full and free discovery of the truth, the attorney-client privilege 11 For the Northern District of California United States District Court 10 is strictly construed, and the party asserting the privilege bears the burden of proving each 12 essential element. United States v. Ruehle, 583 F.3d 600, 607–08 (9th Cir. 2009) (citations and 13 quotations omitted). The privilege may extend to communications with third parties who have 14 been engaged to assist the attorney in providing legal advice. United States v. Richey, 632 F.3d 15 559, 566 (9th Cir. 2011). Voluntary disclosure of the contents of a privileged communication 16 waives the privilege as to all other communications on the same subject. Ibid. (citing Weil v. 17 Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981)). There is, however, a 18 “common interest” or “joint defense” exception to ordinary waiver principles where two or 19 more parties “make the communication in pursuit of a joint strategy in accordance with some 20 form of agreement.” See, e.g., In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) 21 (citing Cont’l Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964)). 22 23 B. Uber’s Objections. Judge Corley held that Uber has no attorney-client privilege over the contents of the due 24 diligence report (Dkt. No. 566 at 10–11). Uber objects to her order on the basis that the report 25 “reflects information communicated in confidence to an agent of OMM and MoFo, at the 26 27 28 2 The law of our circuit applies to questions of privilege and waiver that do not implicate substantive issues unique to patent law. See Wi-LAN, Inc. v. Kilpatrick Townsend & Stockton LLP, 684 F.3d 1364, 1368 (Fed. Cir. 2012); Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1346 (Fed. Cir. 2005); In re Pioneer HiBred Int’l, Inc., 238 F.3d 1370, 1374 (Fed. Cir. 2001). 3 1 direction of OMM and MoFo, for the purpose of obtaining legal advice from OMM and MoFo” 2 (Dkt. No. 575 at 4–5). Uber’s objection conspicuously omits who the “client” seeking to obtain 3 legal advice is supposed to be in its attorney-client privilege theory. The “information 4 communicated in confidence” ostensibly refers to interviews given by Levandowski and Ron to 5 Stroz Friedberg during the course of its due diligence investigation. But Judge Corley correctly 6 found that “MoFo and OMM were not Levandowski’s attorneys” (Dkt. No. 566 at 10). For 7 example, the engagement letter cited in Uber’s motion expressly stated that MoFo and OMM 8 represented Uber and Ottomotto, respectively (see Dkt. No. 370-3). And counsel from MoFo 9 declared that the purpose of Stroz Friedberg’s investigation “was to aid MoFo and OMM in 11 For the Northern District of California United States District Court 10 providing legal advice to their respective clients” (Dkt. No. 370 ¶ 9 (emphasis added)). In other words, Uber’s theory is not that Levandowski, as a client of MoFo and OMM, 12 communicated in confidence to Stroz Friedberg so that he could obtain legal advice from MoFo 13 and OMM. Nor is it that the due diligence report reflects any information communicated in 14 confidence to Stroz Friedberg by Uber or Ottomotto for the purpose of obtaining legal advice 15 from their attorneys. Instead, Uber’s carefully-worded objection suggests the remarkable 16 proposition that information communicated in confidence by anyone to Stroz Friedberg for the 17 purpose of enabling Uber and Ottomotto to obtain legal advice from MoFo and OMM should be 18 covered by the attorney-client privilege. That suggestion has no basis in the law. 19 Uber further argues that its “common legal interest” and “joint defense privilege” with 20 Ottomotto, Levandowski, and Ron preserved its attorney-client privilege. But “[t]he joint 21 defense and common interest doctrines are not privileges in and of themselves. Rather, they 22 constitute exceptions to the rule on waiver where communications are disclosed to third 23 parties.” See Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007) (Judge 24 Edward Chen); see also Pac. Pictures, 679 F.3d at 1129 (“Rather than a separate privilege, the 25 ‘common interest’ or ‘joint defense’ rule is an exception to ordinary waiver rules designed to 26 allow attorneys for different clients pursuing a common legal strategy to communicate with 27 each other.”). Uber’s argument is thus unresponsive to Judge Corley’s decision that it had no 28 attorney-client privilege over the contents of the due diligence report in the first place. Since 4 1 Uber has not shown that her conclusion is “clearly erroneous or contrary to law,” this order 2 need not reach Uber’s further argument that it did not waive any attorney-client privilege over 3 the contents of the due diligence report. 4 5 C. Otto Trucking’s Objections. In rejecting Uber’s claim of attorney-client privilege over the contents of the due 6 diligence report, Judge Corley relied in part on her finding that “Stroz’s interview of 7 Levandowski was performed in Levandowski’s individual capacity, and not as an Otto 8 executive” (Dkt. No. 566 at 10). In its motion for relief, Otto Trucking argues for the first time 9 that it has a claim of attorney-client privilege over Levandowski’s interview with and disclosures to Stroz Friedberg because OMM represented Otto Trucking, and Stroz Friedberg 11 For the Northern District of California United States District Court 10 — acting as OMM’s agent — interviewed Levandowski in his capacity as a principal of Otto 12 Trucking (Dkt. No. 572 at 1–2). This argument could have been, but was not, made before 13 Judge Corley in the first instance. This order declines to consider it now. 14 In its reply brief, Otto Trucking claims it presented this argument to Judge Corley by 15 joining in Uber’s opposition to Waymo’s motion to compel, which “argued that Stroz’s report 16 and exhibits were privileged because they ‘reflect information provided in confidence to an 17 agent of counsel, at the direction of counsel, for the purpose of obtaining legal advice from 18 OMM and MoFo’” (Dkt. No. 609 at 1 (quoting Dkt. No. 369 at 5)). This is incorrect. Uber’s 19 opposition brief never articulated the theory now asserted by Otto Trucking. Indeed, Uber’s 20 opposition brief never even once cited Upjohn Co. v. United States, 449 U.S. 383 (1981), which 21 forms the legal foundation for Otto Trucking’s theory and which Otto Trucking wrongly 22 accuses Judge Corley of ignoring (see Dkt. No. 572 at 1). The specific sentence quoted by Otto 23 Trucking simply echoes Uber’s carefully-worded objection, rejected above, which studiously 24 avoids anchoring the purported claim of privilege to any specific explanation about the 25 underlying attorney-client relationship. In short, it is uselessly vague boilerplate. It is wholly 26 unreasonable, and most disappointing, for Otto Trucking to suggest that Judge Corley should 27 have surmised from that single sentence that it was asserting attorney-client privilege under 28 5 1 Upjohn on the basis that Levandowski gave an interview and made disclosures to Stroz 2 Friedberg in his capacity as Otto Trucking’s principal. 3 Like Uber, Otto Trucking also argues that defendants, Levandowski, and Ron shared a 4 “common interest” such that none of them waived any privilege by disclosing information to 5 each other (Dkt. No. 572 at 2–5). Again, Judge Corley determined that no attorney-client 6 privilege covered the contents of the due diligence report in the first place. Like Uber, Otto 7 Trucking has not shown that this determination was “clearly erroneous or contrary to law.” 8 This order therefore does not reach Otto Trucking’s further argument that a “common interest” 9 protected its attorney-client privilege from waiver. D. Levandowski’s Objections. 11 For the Northern District of California United States District Court 10 Judge Corley considered and rejected Levandowski’s argument that the attorney-client 12 privilege protects his interview with and disclosures to Stroz Friedberg because of a “common 13 interest in preparing for potential litigation against Waymo.” Her order explained, “The 14 common interest/joint defense doctrine does not make a document or communication 15 privileged; rather, it is a doctrine that prevents waiver of a pre-existing privilege if the 16 privileged information is shared only with those with a common legal interest.” Thus, “[t]hat 17 Otto, Uber, Levandowski and Ron purportedly shared a common legal interest at the time of 18 Levandowski’s communications does not make Levandowski’s communications with Uber’s 19 attorney’s agent an attorney-client privileged communication” (Dkt. No. 566 at 11–13). 20 In his motion, Levandowski describes Judge Corley’s order as holding “that the 21 common interest privilege solely protects information that is initially communicated by a party 22 to his or her own attorney in an attorney-client privileged manner and only later communicated 23 between attorneys engaged in a common interest arrangement” (Dkt. No. 574 at 1). But Judge 24 Corley did not so hold. The portion of her order cited by Levandowski simply observed that 25 Uber and Levandowski had only cited decisions where “the document or communication was 26 protected by the attorney-client privilege before counsel provided it to another party,” and that 27 “[t]he circumstances here are different” (Dkt. No. 566 at 12–13). This, in turn, factored into 28 Judge Corley’s conclusion that Levandowski had not carried his burden to establish the 6 1 existence of a valid privilege. Indeed, Judge Corley expressly clarified this exact point in 2 another recent order on a related discovery dispute (see Dkt. No. 670 at 2 n.1). 3 Levandowski’s argument is unresponsive to a more basic point. As Judge Corley that privilege otherwise does not exist. See, e.g., Pac. Pictures, 679 F.3d at 1129 (“Rather than 6 a separate privilege, the ‘common interest’ or ‘joint defense’ rule is an exception to ordinary 7 waiver rules designed to allow attorneys for different clients pursuing a common legal strategy 8 to communicate with each other.”) Thus, whether Levandowski gave an interview and made 9 disclosures to Stroz Friedberg directly (within the context of a purported “common interest” or 10 “joint defense” arrangement) or through his own attorney, the bottom line is that the interview 11 For the Northern District of California explained, a common interest or joint defense does not create attorney-client privilege where 5 United States District Court 4 and disclosures must still, as an initial matter, qualify for the attorney-client privilege. 12 As stated, the attorney-client privilege protects confidential disclosures made by a client 13 to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such 14 disclosures. Ruehle, 583 F.3d at 607–08. The decisions cited by Levandowski merely confirm 15 that the “common interest” or “joint defense” exception extends the privilege to protect “not 16 only the confidentiality of communications passing from a party to his or her attorney but also 17 from one party to the attorney for another party where a joint defense effort or strategy has been 18 decided upon and undertaken by the parties and their respective counsel.” See, e.g., United 19 States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (citations omitted). Put differently, those 20 decisions do not purport to water down the elements of attorney-client privilege, in the 21 “common interest” or “joint defense” context or otherwise. On the contrary, the “common 22 interest” or “joint defense” exception requires both that the elements of attorney-client privilege 23 are met and that the communication in question “was made for the ‘limited and restricted 24 purpose to assist in asserting . . . common claims.’” See id. at 977–78 (discussing Cont’l Oil); 25 see also Pac. Pictures, 679 F.3d at 1129 (“[A] shared desire to see the same outcome in a legal 26 matter is insufficient to bring a communication between two parties within this exception.”); 27 Ruehle, 583 F.3d at 608–09 (rejecting the proposition that communications made in the course 28 of an attorney-client relationship are presumed privileged). 7 Significantly, Judge Corley found that “Levandowski was complying with the Term 1 2 Sheet,” which laid out steps for Uber’s acquisition of Ottomotto, “rather than seeking OMM’s 3 legal advice, when he participated in Stroz’s investigation” (Dkt. No. 566 at 8). This finding 4 goes directly to the question of whether, as an initial matter, Levandowski’s interview with and 5 disclosures to Stroz even qualify for standard attorney-client privilege. Levandowski objects to 6 Judge Corley’s finding, citing his own attorney’s declaration for the proposition that he 7 “participated in the investigation in order to evaluate litigation risks and generate litigation 8 strategy” (Dkt. No. 574 at 5 (citing Dkt. No. 381 ¶¶ 3–6, 11)). The cited portions of Attorney 9 Gardner’s declaration, however, simply assert that Attorney Gardner subjectively believed a “common interest” or “joint defense” exception applied to Stroz Friedberg’s investigation, and 11 For the Northern District of California United States District Court 10 that he worked with other counsel to prepare for future litigation. The declaration does not 12 support the very different proposition that Levandowski gave an interview to Stroz Friedberg for 13 the purpose of seeking legal advice. Even assuming that Judge Corley would have credited the 14 declaration of Levandowski’s attorney in this context, that declaration does not show that she 15 clearly erred in finding that Levandowski did not give an interview or make disclosures to Stroz 16 Friedberg for the purpose of seeking legal advice.3 17 In short, because Judge Corley held that Levandowski’s interview with and disclosures 18 to Stroz Friedberg did not qualify for attorney-client privilege in the first place, she did not err 19 in further concluding that his interview and disclosures did not become privileged merely by 20 virtue of his participation in a purported “common interest” or “joint defense” arrangement. 3. 21 WORK-PRODUCT PRIVILEGE. A. 22 Legal Framework. The work-product privilege protects from discovery “documents and tangible things 23 24 prepared by a party or his representative in anticipation of litigation,” and “covers documents or 25 the compilation of materials prepared by agents of the attorney in preparation for litigation.” 26 Richey, 632 F.3d at 567. Where a document was not prepared exclusively for litigation but 27 3 28 Judge Corley’s factual finding on this point is also fatal to Levandowski’s argument, asserted in a footnote to his motion, that “any records provided by [him] to Stroz must likewise be protected from disclosure under the reasoning of Fisher v. United States, 425 U.S. 391, 405 (1975)” (Dkt. No. 574 at 3 n.2). 8 1 serves a “dual purpose,” it is protected if, “in light of the nature of the document and the factual 2 situation in the particular case, the document can be fairly said to have been prepared or 3 obtained because of the prospect of litigation.” In applying this “because of” standard, courts 4 must consider the totality of the circumstances and determine whether the document “was 5 created because of anticipated litigation, and would not have been created in substantially 6 similar form but for the prospect of litigation.” Id. at 567–68 (citations and quotations omitted). 7 The work-product privilege is qualified and may be waived. Hernandez v. Tanninen, 604 F.3d 8 1095, 1100 (9th Cir. 2010) (quotations and citations omitted). “What constitutes a waiver with 9 respect to work-product materials depends, of course, upon the circumstances.” United States v. 11 For the Northern District of California United States District Court 10 12 Nobles, 422 U.S. 225, 239 n.14 (1975). B. Uber’s Objections. Judge Corley found that Uber waived any work-product privilege it may have had over 13 the contents of the due diligence report by disclosing it to then-adversaries Ottomotto, 14 Levandowski, and Ron, and that no “common interest” prevented such waiver (Dkt. No. 566 at 15 13–22). Uber objects that it did not disclose the due diligence report to an adversary, as 16 required for waiver of work-product privilege, because defendants, Levandowski, and Ron 17 shared a “common interest” in that they all “knew they faced litigation risk from Waymo even 18 prior to the signing of the Put Call Agreement on April 11, 2016,” and “irrespective of whether 19 the deal closed” (Dkt. No. 575 at 1–4). 20 Uber cites In re Grand Jury Subpoena (Mark Torf/Torf Envt’l Mgmt.), 357 F.3d 900 (9th 21 Cir. 2004), for the proposition that “dual purpose documents are protected work product if ‘it 22 can fairly be said that the document was created because of anticipated litigation, and would not 23 have been created in substantially similar form but for the prospect of that litigation’” (Dkt. No. 24 575 at 2). The citation is correct as far as it goes, but is inapposite to Uber’s argument. In re 25 Grand Jury Subpoena discussed “dual purpose” only within the context of explaining what 26 kinds of documents qualify as work product in the first place. See 357 F.3d at 907–08. It did 27 not even mention the issue of waiver, let alone the “common interest” or “joint defense” 28 9 1 exception to waiver. In short, Uber’s argument in reliance on In re Grand Jury Subpoena 2 misapplies the “dual purpose” work product analysis and is unavailing. 3 Uber also cites non-binding decisions for the proposition that parties on opposite sides 4 of a transaction are not “adversaries” for purposes of work-product privilege waiver. Judge 5 Corley considered and rejected this proposition. For example, she specifically considered 6 Uber’s primary reliance on Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D. 7 Cal. 1987) (Judge Wayne Brazil), which held that disclosure of a privileged opinion letter in 8 connection with the attempted sale of a business did not waive attorney-client privilege. Judge 9 Brazil actually observed, with good reason, that Hewlett-Packard presented a “close question” on the waiver issue. Although Uber continues to urge that Hewlett-Packard is persuasive 11 For the Northern District of California United States District Court 10 authority, numerous subsequent decisions have disagreed with its suggestion that “the common 12 interest privilege extends generally to disclosures made in connection with the prospective 13 purchase of a business.” See Nidec, 249 F.R.D. at 579 (summarizing decisions). Under the 14 facts of our case, Judge Corley found Hewlett-Packard both distinguishable and unpersuasive. 15 Uber also criticizes Judge Corley’s reliance on United States v. Bergonzi, 216 F.R.D. 16 487 (N.D. Cal. 2003) (Judge Martin Jenkins), because “Bergonzi does not stand for the 17 proposition that parties to a potential business transaction are adversaries” (Dkt. No. 575 at 4). 18 This criticism attacks a strawman. Judge Corley cited Bergonzi for the very different 19 proposition that two parties have adverse rather than common interests where one party is 20 investigating the other and the results of that investigation threaten adverse consequences (see 21 Dkt. No. 566 at 21). The comparison is apt here. 22 It also bears repeating that Judge Corley made extensive factual findings in reaching her 23 conclusion that, under the circumstances of our case, defendants, Levandowski, and Ron had 24 adverse rather than common interests in Stroz Friedberg’s investigation, and that Uber therefore 25 waived any work-product privilege it may have had over the due diligence report by disclosing 26 the contents of that report to adversaries. Those factual findings, which need not be repeated 27 here, took into account evidence both in the record and in camera and are not clearly erroneous. 28 10 1 Uber contends that, at the very least, any work-product privilege it had over the due 2 diligence report remained intact after the signing of the Put Call Agreement on April 11, 2016 3 (Dkt. No. 575 at 2–3). Uber did not properly raise this argument before Judge Corley in the 4 first instance and cannot now rely on it for the first time to establish work-product privilege 5 over the due diligence report (see Dkt. Nos. 566 at 17–18 n.2; 585 at 13 n.12; 670 at 7–8). 6 C. Otto Trucking’s Objections. 7 Otto Trucking briefly echoes Uber’s arguments that Judge Corley clearly erred in 8 finding a waiver of any work-product privilege that may have covered the due diligence report, 9 and in relying on Bergonzi (Dkt. No. 572 at 5). Otto Trucking’s arguments on these points also 11 For the Northern District of California United States District Court 10 fail for the reasons stated above. Judge Corley also concluded that, even if the due diligence report constitutes non- 12 waived work product, at least some parts thereof — including Stroz Friedberg’s memorandum 13 about its interview of Levandowski — must nevertheless be produced because they constitute 14 ordinary fact work product as opposed to opinion work product (Dkt. No. 566 at 22–23). Otto 15 Trucking makes a bald assertion, styled as an objection, that Judge Corley erred in her 16 conclusion (Dkt. No. 572 at 5). This assertion shows no error and merits no further discussion. 17 18 D. Levandowski’s Objections. Judge Corley held that, “even if Otto and Uber shared a common legal interest 19 notwithstanding the lack of any acquisition agreement,” Stroz Friedberg’s investigation and 20 communications made therein are not privileged because the investigation was not designed to 21 further the common legal effort (Dkt. No. 566 at 15–21). Again, this conclusion resulted from 22 extensive factual findings, including factual findings based on Judge Corley’s in camera review 23 of the due diligence report. Levandowski styles as an objection his various disagreements with 24 Judge Corley’s weighing of the evidence in reaching her factual findings (Dkt. No. 574 at 4–5). 25 The objection is unavailing. See, e.g., United States v. Christensen, 828 F.3d 763, 779 (9th Cir. 26 2015) (explaining that clear error review is deferential, and where there are two permissible 27 views of the evidence, the factfinder’s choice between them cannot be clearly erroneous). 28 11 1 First, Levandowski complains that Judge Corley ignored the “sworn declarations of five 2 attorneys and Stroz’s president, each of whom attests that Stroz was retained for a litigation 3 purpose.” Levandowski is wrong. Judge Corley expressly noted that “[c]ounsel’s declarations 4 are . . . not persuasive evidence that Otto and Uber retained Stroz to pursue a common legal 5 strategy,” and went on to explain why. For example, she pointed out that “[t]he only objective 6 contemporaneous evidence as to the purpose of the Stroz engagement . . . is omitted from all of 7 the counsel declarations.” She therefore decided to “accord[] them little weight” (Dkt. No. 566 8 at 20). Judge Corley’s decision to credit objective evidence in the record over attorney 9 declarations submitted in support of their clients’ arguments was not clearly erroneous. Second, Levandowski complains that Judge Corley “disregard[ed] the fact that the 11 For the Northern District of California United States District Court 10 attorneys involved in the Stroz investigation efforts and communications were Uber’s litigation 12 counsel, not separate corporate transactional counsel.” True, Judge Corley did not explicitly 13 mention this point in her order. Her ultimate conclusion about the purpose of Stroz Friedberg’s 14 investigation, however, took into account ample evidence weighing both in favor of and against 15 Levandowski’s position. It is well-supported by her factual findings and not clearly erroneous 16 even if her order did not specifically address Levandowski’s point about the distinction between 17 Uber’s litigation and corporate counsel. 18 Third, Levandowski accuses Judge Corley of incorrectly interpreting the significance of 19 Stroz Friedberg’s engagement letter. Levandowski acknowledges, however, that Judge Corley 20 considered the letter and found it unpersuasive for reasons clearly explained in her order. As 21 just one example, Judge Corley found that the engagement letter “was most likely revised on 22 April 11, 2016 and then given the date ‘as of March 4, 2016,’” so it is “not evidence of the 23 parties’ intent when Stroz began its investigation in early March 2016” (Dkt. No. 566 at 19). 24 Levandowski attempts to gloss over this backdating problem by suggesting that it “merely 25 confirmed an existing oral understanding that was reached no later than March 11, 2016” (Dkt. 26 No. 574 at 4–5). But this argument is nothing more than Levandowski’s disagreement with 27 Judge Corley’s weighing of the actual evidence. Contrary to Levandowski, Judge Corley’s 28 12 1 decision to not credit Stroz Friedberg’s engagement letter as evidence of the parties’ prior intent 2 was not clearly erroneous. 3 Fourth, Judge Corley found probative the fact that, “on March 14 and March 21, 4 Levandowski’s counsel told Stroz that Levandowski shared a common legal interest with Otto, 5 but did not also claim to share a common interest with Uber” (Dkt. No. 566 at 17). Judge 6 Corley construed this omission as supportive of her conclusion that no common interest existed 7 between defendants. According to Levandowski, Judge Corley should have instead inferred 8 that “the Stroz work was done in service of a common interest agreement including 9 Levandowski.” Again, despite Levandowski’s disagreement, Judge Corley’s inferences from 11 For the Northern District of California United States District Court 10 the evidentiary record are not clearly erroneous. Levandowski also objects that, by denying his request to file an in camera submission in 12 support of his opposition to Waymo’s motion to compel, Judge Corley “deprived [him] of a 13 significant opportunity to support his opposition without waiving his privileges” (Dkt. No. 574 14 at 5 n.3). Levandowski implies, as he did before Judge Corley, that he is somehow entitled to 15 every “significant opportunity” to support his position, even via in camera submissions that 16 would use his privileges as both sword and shield and be patently unfair to Waymo. Judge 17 Corley’s refusal to consider such submissions was neither clearly erroneous nor contrary to law. 18 Finally, Levandowski requests additional briefing to challenge Judge Corley’s order. 19 The request is DENIED. Levandowski, a non-party, has already been afforded ample 20 opportunity to brief the issues raised on Waymo’s motion. Judge Corley has already allowed 21 him to intervene and be heard. He has filed and briefed his own motion for relief from her 22 order, subject to the same constraints that are applicable to defendants and Waymo. In addition, 23 he has expressly joined both Uber and Otto Trucking’s objections to Judge Corley’s order (Dkt. 24 No. 607 at 3). He is entitled to nothing more. 25 26 CONCLUSION For the foregoing reasons, all motions for relief from Judge Corley’s order granting 27 Waymo’s motion to compel production of Stroz Friedberg’s due diligence report are DENIED. 28 All stated objections to Judge Corley’s order are OVERRULED. 13 1 Judge Corley had stayed her order pending resolution of these motions for relief (Dkt. 2 No. 566 at 24). This order continues that stay until JUNE 30 AT NOON to give defendants and 3 Levandowski an opportunity to seek emergency relief from the Federal Circuit. In light of the 4 pressing need for discovery based on the due diligence report to be provided to meet the agreed- 5 upon trial date of October 10, 2017, any further stay must be requested from the Federal Circuit. 6 On appeal, counsel are urged to be fair and accurate in reciting what was or was not 7 argued before Judge Corley. The due diligence report submitted for Judge Corley’s in camera 8 review shall be preserved for the Federal Circuit. 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: June 21, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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