Docket No. 2017-2235, -2253
NEWMAN, WALLACH, STOLL
September 13, 2017
Brief summary: Mr. Levandowski’s petition for writ of mandamus was denied because, e.g., he could not show protection under attorney-client privilege or the work-product doctrine.
Summary: Waymo sued Uber et al., “alleging, inter alia, claims of patent infringement and violations of federal and state trade secret laws” including that “it former employee, Mr. Levandowski, improperly downloaded thousands of documents related to Waymo’s driverless technology and then left Waymo to found Ottomotto, which Uber subsequently acquired.” Before completing the acquisition, counsel for Uber and Ottomotto (but not counsel for Levandowski) retained Stroz to investigate Ottomotto employees formerly employed by Waymo (including Mr. Levandowski), which generated a report that is the subject of the discovery dispute appealed here. Intervenor Anthony Levandowski petitioned for mandamus after the DC’s denial of relief from a Magistrate Judge’s orders finding the Stroz report was not protected by attorney-client privilege or under the work-product doctrine. The FC first found that he had “other adequate means to attain the relief he desires” such a post-judgment appeal, and therefore did not meet “Cheney’s first prerequisite” of a writ of mandamus (Cheney, US 2004). It also found it “apparent that Mr. Levandowski cannot invoke attorney-client privilege or work-product protection” and that his “unsupported assertion” that he “would be unable to ‘cleanse the trial of all taint from the improper disclosure’” “is insufficient” (Birdsong, 9th Cir. 2009). The FC panel also found Levandowski could not satisfy Cheney’s second prerequisite (“the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable”) because the DC properly determined the common interest or joint defense rule allowing “attorneys for different clients pursuing a common legal strategy to communicate with each other” (In re Pac. Pictures, 9th Cir. 2012) did not apply since, e.g., Levandowski could did not “demonstrate the elements of privilege” and the “pursuit of common legal claims”. The FC panel also concluded the DC correctly found the work-product doctrine protecting documents prepared for litigation or “because of” litigation (i.e., “not prepared exclusively for litigation”) did not apply, including under the common interest doctrine. The Magistrate Judge determined that “under the circumstances of our case, [Uber and Mr.] Levandowski…had adverse rather than common interests…and…Uber therefore waived any work-product [protection]” when it disclosed the report to “adversaries Otto[motto and Mr.] Levandowski”, and so “it must disclose the same work product to Waymo.” The FC panel concluded that Mr. Levandownski did “not establish that he is entitled to work-product protection” since only Uber and Ottomotto, but not Levandowski, “hire[d] Stroz as his representative”. The FC panel also concluded the DC properly determined Mr. Levandowski could not rely on the Fifth Amendment (“[n]o person…shall be compelled in any criminal case to be a witness against himself” that “adheres basically to the person, not to information that may incriminate him” (Couch, US 1973)) since, e.g., he was not “compelled to personally produce the Stroz report.” And the FC panel also found the third Cheney prerequisite (“the issuing court…must be satisfied that the writ is appropriate under the circumstances”) inapplicable since the first two Cheney prerequisites were not satisfied. Finally, the FC panel concluded the Perlman doctrine (“a discovery order directed at a disinterested third party is treated as an immediately appealable order”) did not apply because this is a civil case, “Mr. Levandowski may be able to appeal following final judgment”, and he is “closely affiliated with all parties to this litigation.” Thus, his petition for a writ of mandamus was denied.