Waymo LLC, v. Uber Technologies, Inc., Ottomotto LLC, Otto Trucking LLC
Nos. 2017-2235, -2253
Fed. Cir. Sept. 13, 2017
Opinion by Circuit Judge Wallach with Circuit Judges Newman and Stoll
Appellant Anthony Levandowski intervened seeking to prevent discovery sought by Appellee Waymo LLC (“Waymo”) in its lawsuit against Uber Technologies, Inc. (“Uber”). Waymo alleged that Mr. Levandowski, its former employee, improperly downloaded documents and then left Waymo to create Ottomotto, which Uber subsequently acquired. Before the acquisition closed, counsel for Ottomotto and Uber (but not counsel for Mr. Levandowski) jointly retained a firm to investigate Ottomotto employees that were previously employed by Waymo, including Mr. Levandowski. That report (“the Stroz Report”) was the subject of the discovery dispute before the court on appeal.
Waymo sought to obtain the Stroz Report by motion to compel Uber and Ottomotto to produce the Stroz Report and by subpoena. The magistrate judge granted a motion to compel and denied a motion to quash the subpoena. The district court denied relief from the magistrate judge’s orders.
The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed the appeal from the district court’s orders, concluding that the district court orders were neither appealable final orders nor appealable interlocutory orders.
Mr. Levandowski sought a writ of mandamus to prevent discovery of the Stroz Report. The Federal Circuit applied the three “prerequisites” for mandamus set forth in Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004). The first prerequisite requires that the party seeking issuance of the writ have no other adequate means to attain the desired relief. The Federal Circuit rejected the argument that appeal after disclosure of a privileged communication was an inadequate remedy, finding that a post-judgment appeal would “suffice to protect the rights” of Mr. Levandowski. The Federal Circuit noted that Mr. Levandowski could not invoke the attorney/client privilege or work-product protection. The opinion also noted that appellate courts can remedy an improper disclosure of privileged information by vacating an adverse judgment and remanding for a new trial. The court indicated that the district court could protect the information in the interim by means of a confidentiality order.
The Federal Circuit stated that a petition for writ of mandamus is one of “several potential avenues of review,” which (in addition to an appeal) include asking the district court to certify, and the court of appeals to accept, an interlocutory appeal.
The second Cheney prerequisite requires a petitioner to show that his right to issuance of the writ is clear and indisputable. A petition for writ of mandamus is an extraordinary remedy available only in exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion. Mr. Levandowski posited that the district court had abused its discretion by: (1) determining that the common interest doctrine did not apply, (2) finding that he waived work-product protection; and (3) rejecting his claim of Fifth Amendment privilege.
To invoke the common interest or joint defense doctrine, a party must demonstrate the elements of privilege and then demonstrate that the communication was made in pursuit of common legal claims or defenses. The court noted that Mr. Levandowski did not take the position that his communications with Stroz were privileged and that the record supported a factual determination that no privilege existed. Further, Uber’s interests were adverse to Mr. Levandowski’s because he was the subject of an investigation ordered by two parties on opposite sides of a proposed transaction. Mr. Levandowski did not share a common interest with Uber.
Additionally, the work-product doctrine did not apply. Work-product protection covers documents prepared by a party or its representative. Mr. Levandowski did not hire Stroz as his representative. Further, any work-product protection was waived by disclosing the information for the benefit of adverse third parties. The common interest doctrine is a “narrow exception” to waiver, but Court agreed with the district court’s finding that Uber and Mr. Levandowski had adverse rather than common interests in connection with the Stroz Report.
The district court’s orders compelled Uber and Stroz, not Mr. Levandowski, to produce the Stroz Report. The Fifth Amendment privilege is a personal privilege, but Mr. Levandowski had not himself been compelled personally to produce the Stroz Report. As a result, Mr. Levandowski could not prevent Uber and Stroz from producing the Stroz Report in the civil action by invoking the Fifth Amendment. The Federal Circuit rejected the argument that Mr. Levandowski maintained constructive possession over the Stroz Report.
Under Cheney’s third prerequisite, “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Finding that Mr. Levandowski “has not satisfied his burden as to the first two Cheney prerequisites,” the Federal Circuit was not persuaded to exercise discretion and overrule the district court.
As an alternative basis for reversal of one discovery order, Mr. Levandowski argued the Perlman doctrine. Under that doctrine, “a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.” The court indicated that Perlman does not apply in the context of ongoing civil litigation. Further, the Perlman doctrine applies “[o]nly in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims.”
The Federal Circuit noted that Mr. Levandowski could file an appeal from the final judgment. Additionally, the Perlman doctrine may only be invoked by “disinterested third parties”; however, Mr. Levandowski was closely affiliated with all parties to this litigation. The court noted that it had previously rejected Mr. Levandowski’s arguments under the Perlman doctrine in a substantively similar appeal.
Read more: Federal Bar member attorneys may access the full case summary by Barnwell Whaley attorney Bill Killough in the October 2017 issue of Federal Circuit Case Digest.
Additionally, you may read the full opinion here.
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B.C. “Bill” Killough is a registered patent attorney with Barnwell Whaley law firm with offices in Charleston, SC and Wilmington, NC. On behalf of his clients, Bill has obtained more than 300 United States patents, participated in prosecuting more than 100 foreign patent applications and he has filed more than 1000 trademark applications with the US Patent and Trademark Offices.
