WAYMO LLC, Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants.

 

Case No. 17-cv-00939-WHA (JSC)

 

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

2017 U.S. Dist. LEXIS 108165

 

 

July 12, 2017, Decided

July 12, 2017, Filed

 

 

PRIOR HISTORY: Waymo LLC v. Uber Techs., Inc., 319 F.R.D. 284, 2017 U.S. Dist. LEXIS 54662 (N.D. Cal., Apr. 10, 2017)

 

COUNSEL:  [*1] For John Lee Cooper, Special Master, Special Master: John L. Cooper, Farella Braun & Martel LLP, San Francisco, CA.

 

For Waymo LLC, Plaintiff: Charles Kramer Verhoeven, LEAD ATTORNEY, Andrew Michael Holmes, David Andrew Perlson, Felipe Corredor, Grant Nicholas Margeson, James Dubois Judah, Jeffrey William Nardinelli, John William McCauley, IV, John M. Neukom, Jordan Ross Jaffe, Melissa J Baily, QUINN EMANUEL URQUHART & SULLIVAN LLP, San Francisco, CA; Andrea Pallios Roberts, Quinn Emanuel Urquhart Oliver & Hedges LLP, San Francisco, CA; James E. Baker, PRO HAC VICE, Quinn Emanuel, New York, NY; Jared Weston Newton, Washington, DC; Joshua Lee Sohn, Quinn Emmanuel Urqhart Oliver Hedges, San Francisco, CA; Kevin Alexander Smith, Quinn Emmanuel et al, SF, CA; Leo Patrick Cunningham, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA; Lindsay Cooper, Quinn Emanuel, San Francisco, CA; Patrick Thomas Schmidt, Quinn Emanuel, LLP, Los Angeles, CA.

 

For Uber Technologies, Inc., Defendant: Aaron James Bergstrom, LEAD ATTORNEY, Nicole Townsend Bartow, Uber Technologies, Inc., San Francisco, CA; Arturo J. Gonzalez, LEAD ATTORNEY, Daniel Pierre Muino, Eric Akira Tate, Esther Kim Chang, Matthew Ian Kreeger, [*2]  Michael A. Jacobs, Morrison & Foerster LLP, San Francisco, CA; Angela Lucia Padilla, VMware, Inc., Palo Alto, CA; Edward Takashima, Boies, Schiller, and Flexner LLP, Santa Monica, CA; Hamish Hume, Boies Schiller Flexner, Washington, DC; Jessica E Phillips, Boies Schiller Flexner LLP, Washington, DC; Karen Leah Dunn, Kyle N. Smith, Martha Lea Goodman, Boies, Schiller and Flexner LLP, Washington, DC; Maxwell Vaughn Pritt, Boies, Schiller and Flexner LLP, Oakland, CA; Meredith Richardson Dearborn, Boies Schiller Flexner LLP, Palo Alto, CA; Michael A. Brille, Boies, Schiller & Flexner LLP, Washington, DC; Michael Darron Jay, Boies Schiller & Flexner LLP, Santa Monica, CA; Michelle Ching Youn Yang, Morrison Foerster LLP, Washington, DC; Rudolph Kim, Morrison & Foerster LLP, Palo Alto, CA; Sylvia Rivera, Wendy Joy Ray, Morrison & Foerster LLP, Los Angeles, CA.

 

For Otto Trucking LLC, Defendant: David Shane Brun, LEAD ATTORNEY, Brett Michael Schuman, Hayes Phillips Hyde, Rachel Melissa Walsh, Goodwin Procter LLP, San Francisco, CA; Hong-An Vu, Goodwin Procter LLP, Los Angeles, CA; Indra Neel Chatterjee, James Lin, Goodwin Procter LLP, Menlo Park, CA.

 

For Ottomotto LLC, Defendant: Aaron James [*3]  Bergstrom, LEAD ATTORNEY, Nicole Townsend Bartow, Uber Technologies, Inc., San Francisco, CA; Arturo J. Gonzalez, Daniel Pierre Muino, Eric Akira Tate, Esther Kim Chang, Michael A. Jacobs, LEAD ATTORNEYS, Morrison & Foerster LLP, San Francisco, CA; Hamish Hume, LEAD ATTORNEY, Boies Schiller Flexner, Washington, DC; Rudolph Kim, LEAD ATTORNEY, Morrison & Foerster LLP, Palo Alto, CA; Angela Lucia Padilla, VMware, Inc., Palo Alto, CA; Edward Takashima, Boies, Schiller, and Flexner LLP, Santa Monica, CA; Karen Leah Dunn, Martha Lea Goodman, Boies, Schiller and Flexner LLP, Washington, DC; Maxwell Vaughn Pritt, Boies, Schiller and Flexner LLP, Oakland, CA; Michael A. Brille, Boies, Schiller & Flexner LLP, Washington, DC; Sylvia Rivera, Wendy Joy Ray, Morrison & Foerster LLP, Los Angeles, CA.

 

For Stroz Friedberg, LLC, Respondent: Robert Burkart Ellis, LEAD ATTORNEY, Kirkland and Ellis LLP, Chicago, IL; Kevin K Chang, San Francisco, CA.

 

For Anthony Levandowski, Intervenor Dft: Amy E Craig, Ismail Jomo Ramsey, Miles F. Ehrlich, Ramsey & Ehrlich LLP, Berkeley, CA.

 

For Lyft, Inc., Miscellaneous: Carolyn Hoecker Luedtke, LEAD ATTORNEY, Munger, Tolles Olson LLP, San Francisco, CA.

 

For Morrison & Foerster [*4]  LLP, Miscellaneous: Eric Akira Tate, Morrison & Foerster LLP, San Francisco, CA.

 

For Lior Ron, Intervenor: Jonathan Alan Patchen, LEAD ATTORNEY, Taylor & Patchen, LLP, San Francisco, CA.

 

JUDGES: JACQUELINE SCOTT CORLEY, United States Magistrate Judge.

 

OPINION BY: JACQUELINE SCOTT CORLEY

 

OPINION

 

ORDER RE: WAYMO’S MOTION TO COMPEL

Re: Dkt. Nos. 681, 682, 747, 748, 749

Waymo seeks the production of certain documents and answers to interrogatories from Uber and Otto Trucking.

 

1. Waymo’s Expedited Document Requests

 

1. RFP No. 5

Uber objects to producing emails that are responsive to Waymo’s request for diligence documents on the grounds that such documents are not appropriate for expedited discovery. However, it also acknowledges that Waymo requested such documents pursuant to RFP No. 28 in a non-expedited discovery request and that it responded to such request on June 23. Uber does not disclose whether it produced such documents. If it has not, it shall. The documents are relevant to what information Otto shared with Uber and therefore are relevant to Waymo’s trade secret claims.

 

2. RFP No. 8

Documents responsive to Waymo’s request for documents regarding “Pre-Signing Bad Acts” are relevant. Uber contends that it does not have [*5]  any non-privileged responsive documents. To the extent any such documents have not previously been placed on a privilege log Uber shall do so now. Uber has not shown that the amount of such documents is so voluminous that it cannot comply with its well-established obligation to log documents it is withholding on privilege grounds.

 

3. RFP No. 10

Uber has agreed to produce all lab notebooks belonging to personnel who worked on LiDAR.

 

4. RFP No. 20

Uber objects on the grounds of relevancy to production of software modules that were part of the intellectual property identified in the Put Call Agreement Disclosure Schedules. The objection is overruled. Otto’s intellectual property disclosed to Uber is discoverable as it is relevant to Waymo’s claims and Uber’s defenses.

 

5. RFP No. 25

Uber has satisfactorily responded to Waymo’s request for closing conditions.

 

1. Waymo’s Expedited Interrogatories

 

1. Interrogatory No. 3

With the filing of the Declaration of Kevin Faulkner, Uber’s response is sufficient.

 

2. Interrogatory No. 5

Uber shall supplement its response to identify all compensation promised by any Defendant to Mr. Levandowski as the information sought is relevant.

 

3. Interrogatory No. 8

Waymo’s [*6]  motion to compel a further response is denied. See Adobe Sys. v. St. Paul Fire & Marine Ins. Co., 2008 U.S. Dist. LEXIS 37794, 2008 WL 1342877, at *2 (N.D. Cal. April 8, 2008).

 

4. Interrogatory No. 20

To the extent any of Uber’s communications with Levandowski’s attorneys are not already logged, Uber shall put them on a privilege log. If Uber does not want to identify verbal communications on the privilege log, it shall identify such communications in a supplemental response to the Interrogatory.

 

1. Otto Trucking’s Response

 

1. Interrogatory Responses

Waymo’s complaint that Mr. Levandowski knows where the material he downloaded from Waymo is located, and therefore Otto Trucking must know, is disingenuous. As Waymo is well aware, Mr. Levandowski has refused to cooperate with any discovery in this matter on Fifth Amendment grounds. To the extent Waymo contends that Otto Trucking has not done enough to coerce Mr. Levandowski to speak, that is a matter that it has raised with the District Judge. (Dkt. No. 847.)

With respect to other Otto Trucking personnel, Otto Trucking has represented that its officers Mr. Ron, Ms. Morgan and Mr. Bentley do not have information responsive to the interrogatories. (Dkt. No. 747 at 2.) The only specific interrogatory identified by Waymo is Interrogatory No. 1 which seeks the locations and custody [*7]  of the DOWNLOADED MATERIALS. Thus, the representation is that these officials do not know the locations and custody of these materials. That Mr. Levandowski told Mr. Ron that Mr. Levandowski had five discs containing Google information and that Mr. Levandowski had destroyed the material does not mean that Mr. Ron knows where such information is located.

 

2. Document Requests

Otto Trucking must produce responsive documents in the custody, control or possession of its officers, namely, Mr. Ron, Ms. Morgan or Mr. Bentley. It cannot hide responsive documents simply because these officers’ work for Otto Trucking was done using their personal email accounts, especially since they are all current Otto Trucking officers. It is thus unsurprising that Otto Trucking does not cite a single case that supports that remarkable proposition. The cases Otto Trucking does cite are all inapposite; none involve a corporation refusing to produce documents involving corporation business in the possession, custody or control of the corporation’s officers. To accept Otto Trucking’s argument would mean that it could not compel its current officers to produce Otto Trucking’s own trade secrets to Otto Trucking merely [*8]  because the officers conducted Otto Trucking business with their personal email accounts. Nonsense.

Otto Trucking must produce responsive documents in the custody, control or possession of its officers and agents.

 

CONCLUSION

Waymo’s motion is denied in part and granted in part as is explained above. Uber and Otto Trucking shall comply with this Order on or before July 18, 2017. An objections to this Order must be filed with the district court on or before Monday, July 17, 2017. This Order is not stayed.

This Order disposes of Docket Nos. 682, 747, and 749.

IT IS SO ORDERED.

Dated: July 12, 2017

/s/ Jacqueline Scott Corley

JACQUELINE SCOTT CORLEY

United States Magistrate Judge