We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for December 2017.
→The Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and here—but nothing like this. The court delayed the trial after the ND Cal. U.S. Attorney revealed a letter (available here) from a former Uber employee claiming that a former Uber in-house attorney instructed employees to mark emails as “privileged” even if they were not seeking legal advice. See Jennifer Williams’ article on the issue, which quotes yours truly, for more information.
→A lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counsel’s Office (Mueller) “unlawfully” received privileged information from the General Services Administration. Mueller’s office denies the allegations. Read the CNN story here. Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Team’s privilege concern is a “legal nothingburger.” See Katie’s commentary here.
→President Trump tweeted that he fired General Mike Flynn “because he lied to the Vice President and the FBI.” This statement, of course, contradicts the President’s earlier statements More…
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…
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…