Waymo LLC v. Uber Technologies, Inc.
2017 U.S. Dist. LEXIS 54662, 319 F.R.D. 284, 2017 WL 1316878 (2017)
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Rule of Law:
Compelling a party to provide a standard privilege log does not violate a non-party's Fifth Amendment privilege against self-incrimination, even if the information on the log might incriminate the non-party, because the compulsion is not directed at the individual asserting the privilege.
Facts:
- Anthony Levandowski, an employee of Waymo LLC, downloaded over 14,000 files containing trade secrets related to self-driving cars.
- After downloading the files, Levandowski transferred them to a portable storage device and wiped his company-issued laptop.
- Levandowski resigned from Waymo and founded his own autonomous-vehicle companies, Ottomotto LLC and Otto Trucking LLC.
- Uber Technologies, Inc. acquired Levandowski's companies for approximately $680 million.
- During the acquisition, Uber, Levandowski, and a third party entered into a joint defense agreement.
- As part of the acquisition's due diligence, a third party prepared a report which may have referenced the documents Levandowski downloaded from Waymo.
- Information related to this due diligence report was shared among the parties under the joint defense agreement.
Procedural Posture:
- Waymo LLC sued Ottomotto LLC, Otto Trucking LLC, and Uber Technologies, Inc. in the United States District Court for the Northern District of California.
- Waymo moved for provisional relief against the defendants.
- The district court issued an order for expedited discovery, which required defendants to produce documents and a privilege log by a specific deadline.
- Defendants requested a non-public conference with the court to address a confidential matter.
- During the conference, counsel for non-party Anthony Levandowski appeared and argued that compelling defendants to create a standard privilege log would violate Levandowski's Fifth Amendment rights.
- The court instructed Levandowski's counsel to file a formal motion to address the issue.
- Non-party Anthony Levandowski filed the instant motion to modify the privilege log requirements to prevent defendants from disclosing certain information.
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Issue:
Does a non-party's Fifth Amendment privilege against self-incrimination prevent a defendant from being compelled to provide a standard privilege log that may contain information incriminating to the non-party?
Opinions:
Majority - Alsup, J.
No. Compelling a party (Uber) to complete a conventional privilege log does not violate a non-party's (Levandowski's) Fifth Amendment privilege. The Fifth Amendment privilege against self-incrimination is a personal right that cannot be asserted by a third party. Citing Fisher v. United States, the court reasoned that compelled production of documents from an attorney, or in this case a co-defendant under a joint defense agreement, does not compel the individual asserting the privilege to do anything and therefore does not make them a 'witness' against themself. The court distinguished the Fifth Amendment privilege from the attorney-client privilege, clarifying that Levandowski misinterpreted Fisher by conflating the two. Levandowski failed to meet his burden of showing that the information was protected by the attorney-client privilege in the first place, as it was primarily exchanged for a business purpose (due diligence) rather than for obtaining legal advice. Furthermore, the identity of the third party who prepared the report is an underlying fact, not a privileged communication. The purpose of a privilege log is to allow the court to adjudicate claims of privilege, and this process cannot be circumvented simply because the required disclosures might be incriminating to a non-party.
Analysis:
This decision reinforces the legal principle that the Fifth Amendment privilege is a personal right that cannot be vicariously asserted to shield a third party from its discovery obligations. It clarifies that a joint defense agreement does not extend an individual's Fifth Amendment protection to other parties in the agreement. The ruling limits the ability of individuals to use corporate transactions and related due diligence processes to conceal potentially incriminating evidence in civil litigation. By strictly distinguishing between business purposes and legal advice, the court signals that parties cannot use the cloak of attorney-client privilege to protect communications that are primarily transactional in nature, even if lawyers are involved.
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