Waymo Can See Due Diligence Report in Fight With Uber

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By Joan C. Rogers

Uber Technologies Inc. can’t keep Waymo LLC from seeing a due diligence report that Uber obtained in the course of acquiring a former Waymo engineer’s self-driving technology startup, a federal judge in San Francisco decided June 21 ( Waymo LLC v. Uber Techs. Inc. , 2017 BL 215392, N.D. Cal., No. C 17-00939 WHA, 6/21/17 ).

Neither the attorney-client privilege nor the work product doctrine bars discovery of the report by forensics firm Stroz Friedberg, according to Judge William Alsup of the U.S. District Court for the Northern District of California.

The discovery ruling is a big win for the Alphabet Inc. unit in its trade secret suit claiming that Uber plotted with Anthony Levandowski to steal Waymo’s autonomous vehicle technology. Uber recently fired Levandowski as chief of its self-driving car program, citing his refusal to turn over documents in the litigation.

Levandowski previously lost his bid to block Uber from disclosing any details about the due diligence report on its privilege log. That ruling didn’t address whether Uber had to turn over the report.

After reviewing the report behind closed doors, a federal magistrate judge decided June 8 that Uber can’t withhold it. Alsup found no reason to second-guess that decision.

No Attorney-Client Privilege

Uber contended that the report reflects information communicated in confidence to the law firms that represented Uber and Ottomotto LLC in the acquisition.

Alsup said that argument ignores who constituted the “client” seeking legal advice in the due diligence investigation.

The allegedly privileged communications to Stroz Friedberg came from Levandowski and Ottomotto co-founder Lior Ron, but they were not clients of the law firms that represented Uber and Ottomotto in connection with the acquisition, Alsup said.

Alsup said Uber was really suggesting that the attorney-client privilege applied to information anyone communicated in confidence to Stroz Friedberg for the purpose of enabling the law firms’ clients to obtain legal advice. There’s no basis in law for that proposition, Alsup said.

Uber also argued that it had a “common legal interest” and “joint defense privilege” with Ottomotto, Levandowski, and Ron.

Alsup didn’t agree. Those doctrines aren’t privileges in themselves, but rather prevent privilege waiver where communications are disclosed to third parties, he noted.

Here, there was no attorney-client privilege over the contents of the due diligence report in the first place, he said.

Work Product Protection Waived

Alsup also agreed with the magistrate’s ruling that Uber waived any work product privilege over the report by disclosing it to Ottomotto, Levandowski, and Ron.

The record supported the magistrate’s findings that their interests in Stroz Friedberg’s investigation were adverse to Uber’s interests, so that sharing the report with them ruined any work product privilege, Alsup said.

Alsup rejected Uber’s reliance on a 1987 district court decision which held that disclosure of a privileged opinion letter in connection with the attempted sale of a business didn’t waive attorney-client privilege.

Numerous subsequent decisions have disagreed with the suggestion there that the common interest privilege extends generally to disclosures made in connection with the prospective purchase of a business, Alsup said.

Quinn Emanuel Urquhart & Sullivan LLP represented Waymo. Morrison & Foerster LLP and Boies Schiller & Flexner LLP represented Uber and Ottomotto. Goodwin Procter LLP represented Otto Trucking LLC. Kirkland & Ellis LLP represented Stroz Friedberg. Ramsey & Ehrlich LLP represented Levandowski.

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

For More Information

Full text of Alsup's decision at http://src.bna.com/p9I.The magistrate judge's opinion is at http://src.bna.com/p92.

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