Uber Loses Crucial Privilege Battle in Driverless Car Trade-Secrets Case 1

In the ongoing trade-secrets litigation between Waymo and Uber over the alleged theft of self-driving car technology, a federal court ordered Uber to produce a due diligence report prepared by its third-party investigation firm. The court held that neither the attorney–client privilege nor the common–interest doctrine protects this report, which could contain a treasure-trove of information.  Waymo LLC v. Uber Techs., Inc., 2017 WL 2694191 (N.D. Cal. June 21, 2017).  You may read the magistrate judge’s opinion here, and the district court’s approval here.


Anthony Levandowski was an engineer at Waymo, a subsidiary of Google’s parent, Alphabet, Inc., and heavily involved in developing the LiDAR laser-sensor technology necessary to operate self-driving cars. He started Ottomotto LLC on Jan. 15, 2016, resigned from Waymo on Jan. 27, 2016, and formed Otto Trucking LLC on Feb. 1, 2016.

Just days later, Otto entered into a Term Sheet with Uber which created a process for Uber to potentially acquire 100% of Otto. Uber ultimately acquired Otto for $680M and hired Levandowski to lead its self-driving car program.  Did Levandowski transfer Waymo’s LiDAR trade secrets to Otto and then to Uber? More…

NY Client. SC Atty. Which State’s Privilege Law Covers Their Calls & Emails?

Let’s discuss conflicts-of-laws—privilege style.  I know you want to.

Here is the scenario—NY client emails her SC-based attorney—which state’s privilege law applies?  In Wellin v. Wellin, 211 F. Supp. 3d 793 (D.S.C. 2016), the USDC SC provided an informative analysis of the often-ignored conflict-of-privilege-law issue, and applied the Second Restatement’s paradigm in holding that SC privilege law applied.  You may read the opinion here.  Now, let’s break it down.

The Wellin case involves multiple lawsuits over the distribution of the substantial assets of Keith Wellin, a former Wall Street executive who died in 2014.  Read his obituary here.  Wellin’s eight grandchildren, non-parties to the litigation but contingent beneficiaries of one of Wellin’s Irrevocable Trusts, lawyered up with South Carolina counsel.

One of the grandchildren, Ann Plum, a New York-based otolaryngologist, sought a protective order to prevent deposition questions about communications she had with her South Carolina-based attorneys, her brother, cousins, and mother, and her mother’s attorney.

To determine the privilege issues, the court had to decide whether NY or SC law applied to the putatively privileged communications.  In this diversity action, the court looked to FRE 501, which provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”  FRE 501, however, does not answer which state’s privilege law applies—the forum state or some other state. More…

One Lawyer. Two Plaintiffs. Separate Lawsuits. Plaintiffs’ Communications Privileged?

It is not uncommon for a single lawyer to represent two or more plaintiffs in separate lawsuits against one defendant.  If these plaintiffs–clients confer jointly with their lawyer, does the attorney–client privilege protect these discussions from discovery?

In a decision that properly distinguishes the joint–client doctrine and the common–interest doctrine, the USDC for Connecticut held—yes.  Supreme Forest Prods., Inc. v. Kennedy, 2017 WL 120644 (D. Conn. Jan. 12, 2017).  You may read the decision here.

Two Plaintiffs.  One Lawyer.

Michael Kennedy and Ferrell Welch retained attorney Michael Reilly to sue their employer, Supreme Forest, for wrongful discharge. Mr. Reilly filed separate lawsuits on Kennedy and Welch’s behalf.  During these lawsuits, Kennedy and Welch jointly participated in meetings with Reilly.

Supreme Forest later filed a separate action against Kennedy and Welch alleging the Kennedy and Welch’s secret tape-recordings of Supreme Forest employees gave rise to several state-law causes of action.  In discovery, Supreme Forest sought communications from Kennedy and Welch’s joint meetings with attorney Reilly. More…