Intervenor Not Entitled to Mandamus Relief on Discovery Dispute in Waymo v. Uber

Waymo LLC v. Uber Techs., Inc., Nos. 2017-2235, 2017-2253, (Fed. Cir. Sep. 13, 2017) (Before Newman, Wallach, and Stoll, J.) (Opinion for the court, Wallach, J.)

Waymo, a Google spin-off, sued Uber and Ottomotto for patent infringement and violations of federal and state trade secret laws. Waymo alleged that its former employee, Mr. Levandowski, improperly downloaded documents on Waymo’s driverless vehicle technology prior to leaving the company and founding Ottomotto, which was subsequently acquired by Uber. At issue in this case is production, during document discovery, of the “Stroz Report.” The report was prepared by cybersecurity firm, Stroz Friedberg LLC, prior to Uber’s acquisition of Ottomotto, and investigated Ottomotto employees who previously worked at Waymo, including Mr. Levandowski. Mr. Levandowski intervened in the lawsuit for the limited purpose of opposing disclosure of the Report.

During discovery, the Magistrate Judge granted Waymo’s Motion to Compel production of the Stroz Report. Waymo subpoenaed Stroz to produce the report and accompanying communications, documents, and devices. After a Motion to Quash was denied, Levandowski, Ottomotto, and Uber filed Motions for Relief from the Magistrate’s orders. The District Court denied the Motions. Acting alone, Mr. Levandowski appealed the district court’s denial of relief. Because the orders were not appealable final judgments, Mr. Levandowski presented his appeal as a writ of mandamus. The Court denied the writ, dismissed the appeal on jurisdictional grounds, and ordered production of the Report.

The Court held that Mr. Levandowski failed to meet any of the three requirements necessary to establish entitlement to a writ of mandamus: (1) that no other adequate means were available to achieve the desired relief; (2) that he had a clear and indisputable right to the writ; and (3) that, in the Court’s discretion, a writ of mandamus was warranted.

First, other adequate avenues of review were available to Mr. Levandowski, including a post-judgment appeal. The District Court’s order to disclose the Report was neither particularly injurious nor novel. The possibility of an admission against interest was a proper discovery function, and in case of an improper disclosure of privileged information, appellate courts could vacate an adverse judgment and remand for a new trial. Even if the court’s privilege rulings were “particularly injurious or novel,” Mr. Levandowski could request an interlocutory appeal. His status as an intervenor did not preclude him from pursuing this or any other available avenue of review.

While this was enough to defeated Mr. Levandowski’s appeal, the Court addressed the other two requirements. The Court found he could not establish a clear and indisputable right to the writ and that the writ was not otherwise warranted. The common interest doctrine, an exception to ordinary waiver rules that allows parties pursuing a common legal strategy to communicate with each other, did not apply in this case. To invoke the doctrine, a party must first establish the existence of attorney-client privilege and then show that the communication was made in pursuit of a common legal strategy. The communication must be made both in confidence and for the purpose of obtaining legal advice from a lawyer. Uber and Ottomotto, not Mr. Levandowski, hired Stroz and Mr. Levandowski was not represented by Stroz, Uber, or Ottomotto’s counsel. Thus, his interview and disclosures to Stroz did not qualify for a claim of attorney-client privilege by Mr. Levandowski. His subsequent participation in the lawsuit and invocation of a “common interest” did not make his communications in the report “privileged.”

Furthermore, Mr. Levandowski was the subject of an investigation ordered not by him, but by two parties on opposite sides of a proposed transaction. Rather than sharing a common interest, Uber and Mr. Levandowski were adversaries in the Stroz investigation. Similarly, Mr. Levandowski was not entitled to assert work-product protection in this case because the Report was the work-product of Uber’s attorney and not his own attorney. Even if the Report constituted Mr. Levandowski’s work-product, any protections were waived by disclosing it to Ottomotto and Uber. Again, because Mr. Levandowski and Uber had adverse rather than common interests, the common interest exception did not apply.

Mr. Levandowski was not entitled to a Fifth Amendment privilege with respect to the disclosure of the Report. The Fifth Amendment privilege is personal: it attaches to a person rather than to the information. Mr. Levandowski was not compelled personally to produce the Report and could not assert any privilege over it. A mere possibility of incrimination is not enough to prevent another’s disclosure of information relevant in a civil action. Furthermore, the District Court had the authority to apply any appropriate protective order.

Finally, the Court rejected Mr. Levandowski’s invocation of the Perlman doctrine as an alternate basis for the reversal of the court’s denial of the Motion to Quash the Subpoena. See Perlman v. United States, 247 U.S. 7 (1918). Under that doctrine, a discovery order directed at a disinterested third party is an immediately appealable final order. Here, Mr. Levandowski provided no reasoning for the application of the doctrine in a civil case and Uber was not a disinterested third party.

A party’s shared legal interest at the time of litigation is not sufficient to invoke protections of the common interest doctrine for pre-existing communications. Attorney-client privilege must be established prior to any invocation of doctrine when attempting to circumvent problems of waiver. An adversarial interest with one of the parties to an action – in this case Uber – may be sufficient to defeat a claim of a common interest. Finally, a mere possibility of incrimination is not sufficient to prevent another’s disclosure of information relevant in a civil action.

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