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Waymo LLC v. Uber Technologies, Inc.

No Interlocutory Appeal for Order Compelling Production

Waymo LLC v. Uber Technologies, Inc., 2017 U.S. App. LEXIS 17668 (Fed. Cir. Sept. 13, 2017) (Newman, WALLACH, Stoll) (N.D. Cal.: Alsup) (3 of 5 stars)

Fed Cir dismisses appeal from denial of motions seeking relief from discovery orders. The appellant was Anthony Levandowski, a former Waymo employee accused of “improperly download[ing] thousands of documents related to Waymo’s driverless vehicle technology, and then [leaving] Waymo to found Ottomotto, which Uber subsequently acquired.” Op. at 2. Because the appealed-from orders were not appealable final judgments, the order analyzes jurisdiction both under mandamus review standards, and under the doctrine of Perlman, 247 U.S. 7 (1918), which Mr. Levandowski alleged authorized immediate appeal of an order compelling third party disclosure of privileged materials.

Mr. Levandowski’s appeal did not warrant a writ of mandamus because Mr. Levandowski did not establish that typical review after final judgment would be inadequate to protect his rights. The opinion rejects Mr. Levandowski’s claim that certain materials ordered to be disclosed were privileged and/or work product, and rejects his claim that the disclosure would be particularly injurious, or would raise a particularly novel issue of law. Mr. Levandowski also did not establish a clear, indisputable right to a mandamus writ. The opinion rejects Mr. Levandowski’s attempt to assert privilege under “common interest doctrine,” reasoning that the disclosures at issue were not attorney-client privileged communications in the first place. It rejects Mr. Levandowski’s argument that common interest can protect against disclosure of non-privileged material. It also rejects Mr. Levandowski’s invocation of work product protection because the material in question was not prepared by Mr. Levandowski or his counsel, but was disclosed to him by Uber’s counsel (in circumstances not warranting common interest protection). The opinion also rejects Mr. Levandowski’s attempt to invoke the Fifth Amendment.

Mr. Levandowski’s appeal also did not warrant invocation of the Perlman doctrine because that doctrine generally does not apply in civil litigation, and because Mr. Levandowski’s issues are appealable after final judgment. The opinion also concludes that Mr. Levandowski was not a disinterested third party, as a former employee of both parties in the litigation, and whose actions were “central to Waymo’s claims.” Op. at 25.

KEYWORDS: MOTION TO COMPEL PRODUCTION; MANDAMUS; ATTORNEY-CLIENT PRIVILEGE; WORK PRODUCT; COMMON INTEREST