(holding that Uber cannot disclaim privilege protection for an obviously privileged communication, so its disclosure of that communication resulted in a subject matter waiver under Rule 502; "In a case stuffed with surprising scenarios yet another has arisen: the party that would normally assert that a conversation between its in-house litigation counsel and its top executives regarding ongoing litigation is protected by the attorney-client privilege is denying any such protection. The Court is thus in the unusual situation of having to adjudicate whether a conversation is privileged notwithstanding the purported privilege holder's insistence that it is not."; "The question remains whether that conversation, or at least the communications regarding why Mr. Levandowski took Google's information and his decision to invoke the Fifth Amendment, were protected by Uber's attorney-client privilege. Waymo, as the party asserting that the privilege applies, bears the burden of proof. . . . the Court finds that the record overwhelmingly compels the finding that Mr. Kalanick's testimony regarding that conversation was protected by Uber's attorney-client privilege."; "Further, during that conversation Ms. Padilla actually advised Mr. Levandowski (as an Uber executive) and Mr. Kalanick (as Uber's CEO) as to what Uber wanted him to do in this litigation; namely, testify. This, too, supports the Court's finding that the communications during that meeting were for the purpose of enabling Uber to obtain legal advice."; "Ms. Padilla's testimony that she did not believe the conversation to be privileged (although, again, she does not then explain why she was present) does not make the conversation not privileged. If that was all it took to make a communication that has all the hallmarks of a privileged communication not privileged then the rule about not using the privilege as a shield and a sword would be meaningless. Under Uber's theory all a party would have to do is cherry pick the communications they want the opposing party to see and identify those as not privileged, all the while being able to shield other not so favorable communications from disclosure even if they are about the very same topic by claiming those communications privileged. The law of privilege is not that unfair."; "By electing to disclose Uber's communications between Mr. Levandowski, Mr. Kalanick and Ms. Padilla Uber deliberately waived its attorney-client privilege with respect to those communications. . . . The waiver extends to undisclosed communications regarding the subject matter of the disclosed communications. See Fed. R. Evid. 502(a)."; "Uber nonetheless insists that the Court should not apply a subject matter waiver because its disclosure of privileged communications (if any) was inadvertent as it had a good faith belief that the communications were not privileged. The Court disagrees."; "Even if the Court found that Uber had a good faith belief that Mr. Levandowski's communications with Ms. Padilla and Mr. Kalanick were not privileged (and the Court does not so find), Uber offers no support for its assertion that a lawyer's incorrect advice on whether communications are privileged constitutes inadvertence for purposes of Rule 502(b). Moreover, as Uber did not take any reasonable steps to prevent the disclosure, the second required element of Rule 502(b) is also not met. Finally, at oral argument the Court offered Uber the opportunity to withdraw its waiver and assert the privilege over the communications, in other words, 'to rectify the error.' Uber declined. Thus the third element of Rule 502(b) is not satisfied. Subject matter waiver applies."; "The next step is for the parties to provide supplemental briefing on the scope of Uber's waiver. As Mr. Kalanick's deposition demonstrates, however, it appears that the scope of the waiver may extend to communications made by and to Mr. Levandowski while his personal attorneys were present. He thus may have an individual attorney-client privilege in those communications, although he did not assert such a privilege as to the communications at issue on this motion. The parties must therefore address whether (1) Mr. Levandowski has an individual attorney-client privilege in communications that would be swept within the scope of Uber's subject matter waiver, (2) Uber can waive the privilege with respect to those communications if Mr. Levandowski has an individual attorney-client privilege, and (3) if Uber cannot, whether in fairness Uber should be allowed to waive the privilege with respect to the communications in which Mr. Levandowski does not claim an individual privilege. The parties, including counsel for Mr. Levandowski, shall meet and confer, with the assistance of the Special Master if necessary, and propose a process for addressing these questions.")
| Case Date |
Jurisdiction |
State |
Cite Checked |
| 2017-08-14 |
Federal |
CA |
|