Uber Faces Loss of Attorney-Client Privilege in Waymo Suit

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By Joan C. Rogers

Uber forfeited its attorney-client privilege regarding the subject matter of a conversation in March among Uber CEO Travis Kalanick, self-driving car engineer Anthony Levandowski, and Uber’s in-house litigation counsel, a federal magistrate judge ruled Aug. 14 ( Waymo LLC v. Uber Techs., Inc. , N.D. Cal., No. 17-cv-00939-WHA (JSC), 8/14/17 ).

The conversation was privileged even though Uber took the unusual position that it wasn’t, and the company waived the privilege for undisclosed communications on the same subject matter when Kalanick gave deposition testimony about Levandowski’s statements in the meeting, Magistrate Judge Jacqueline S. Corley decided.

The discovery dispute arose in the high-profile suit in which Waymo, an Alphabet Inc. unit, accuses Uber of misappropriating driverless technology trade secrets. Waymo claims that Levandowski illegally downloaded thousands of files containing trade secrets and took them with him when he left Waymo to start his own competing venture, which Uber subsequently acquired.

The finding of subject matter waiver is a major setback for Uber as the case heads to trial in October in the U.S. District Court for the Central District of California. It potentially opens the door to discovery of undisclosed Uber documents and communications about Levandowski’s downloading of Waymo files and the reasons for his invocation of the Fifth Amendment privilege against self-incrimination.

The conversation in question took place a month after Waymo sued Uber, during a series of meetings among Uber executives and its in-house and outside litigation counsel. At the time of the meeting, Levandowski was an executive with Uber’s self-driving vehicle engineering team.

Kalanick, who has since resigned as Uber’s CEO, testified about the contents of the meeting, including statements Levandowski made, in his deposition several months later.

In particular, Kalanick said Levandowski stated that he downloaded Google documents because he was concerned about Google paying him his bonus, and Levandowski explained that he was invoking his Fifth Amendment privilege against self-incrimination on advice of counsel.

Communications Were Privileged

The magistrate judge held that Uber’s attorney-client privilege applied to the conversation, despite Uber’s claim to the contrary.

The primary purpose of the communications at the meeting among Levandowski, Kalanick, and Angela Padilla, Uber’s head of litigation, was to learn facts to help Uber’s counsel provide legal advice to the company, the court said.

Corley rejected Uber’s suggestion that Padilla was only there to provide comfort to Kalanick. Padilla was a “comfort” because she was in-house litigation counsel and Kalanick was hoping to learn facts relevant to this case, the magistrate judge said.

The magistrate judge wasn’t swayed by Padilla’s testimony that she didn’t believe the conversation to be privileged. “If that was all it took to make a communication that has all the hallmarks of a privileged communication not privileged then the rule about not using the privilege as a shield and a sword would be meaningless,” Corley said.

Corley also said found it unimportant that Padilla wasn’t Levandowski’s personal attorney. “The attorney-client privilege applies to communications between corporate employees and counsel, made at the direction of corporate superiors in order to secure legal advice,” she said.

Subject Matter Waiver

The magistrate judge ruled that by electing to disclose Uber’s communications between Levandowski, Kalanick, and Padilla, Uber deliberately waived its attorney-client privilege with respect to those communications.

The waiver extends to undisclosed communications regarding the subject matter of the disclosed communications, Corley said, citing Fed. R. Evid. 502(a).

Uber argued that the court shouldn’t find a subject matter waiver because any disclosure of privileged communications was inadvertent due to its good faith belief that the communications weren’t privileged.

Corley disagreed, saying the waiver exception in Fed. R. Evid. 502(b) for inadvertent disclosure didn’t apply. Even if Uber had a good faith belief that Levandowski’s communications with Padilla and Kalanick weren’t privileged, “Uber offers no support for its assertion that a lawyer’s incorrect advice on whether communications are privileged constitutes inadvertence for purposes of Rule 502(b),” the magistrate judge said.The scope of the waiver will be decided after supplemental briefing about the impact of Levandowski’s possible individual attorney-client privilege in communications that come within Uber’s subject matter waiver, Corley directed.

Quinn Emanuel Urquhart & Sullivan LLP represented Waymo. Boies Schiller & Flexner LLP represented Uber.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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