Meeting Client in a Coffee Shop? Be Wary of Privilege Waiver

Lawyers are increasingly meeting individual clients and corporate-client employees in restaurants, coffee shops, and bars.  And this phenomenon is not limited to solo practitioners who use the local Starbucks as an office.  Firm-based lawyers more often interview a client’s employee or consultant over lunch rather than in their offices.  And in-house lawyers discuss confidential information with corporate employees in the company café.

A key component to the corporate attorney–client privilege is that lawyer–client conversations occur in a confidential setting.  In a recent Oregon case, a lawyer escaped privilege waiver for a meeting held in a restaurant, but only after having to prove that the tables around him were empty and that no one overhead the conversation.  While this was a privilege win, it should give lawyers pause about their client-meeting locations.  MacFarlane v. Fivespice, LLC, 2017 WL 1758052 (D. Ore. May 4, 2017).  You may read this decision here.

Restaurant Conversation

A former server at Café Murrayhill in Beaverton, Oregon filed a retaliation suit against the café.  The café’s lawyer met with the executive chef—at the restaurant.  Seems reasonable enough, but the meeting occurred in a restaurant booth and not in a private meeting room. More…

Court Rejects Work-Product Doctrine for Uber’s Due Diligence Investigation 1

In the ongoing trade-secrets litigation between Waymo and Uber over the alleged theft of self-driving car technology, a federal court rejected Uber’s claim that the attorney–client privilege and/or common–interest doctrine protected an investigator’s due diligence report.  I discussed the Uber–Ottomotto acquisition backstory and the court’s privilege ruling in a prior post: Uber Loses Crucial Privilege Battle in Driverless Car Trade-Secrets Case.

In this piece, I discuss common–interest doctrine in more detail and explain court’s additional ruling that the work-product doctrine did not protect the due diligence report from disclosure to Waymo.  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 affirming order here.

Disclosure to Adversary Equals Waiver

Recall that Uber and Otto entered into a Term Sheet that described a process through which Uber may acquire Otto, and that the Term Sheet required Uber and Otto to jointly retain an investigation firm (Stroz Friedberg) to conduct due diligence into potential trade-secrets misappropriation.  You may read Stroz’s engagement letter here. More…

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.

Backstory

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…