Uber Technologies v. Google ( 2018 )

Filed 9/28/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
UBER TECHNOLOGIES, INC.,
Plaintiff and Respondent,
A153653
v.
GOOGLE LLC, (REDACTED)
Defendant and Appellant.
Anthony Levandowski and Lior Ron are former Google LLC (Google) employees
who started the self-driving vehicle company Ottomotto LLC (Otto). Google considered
Otto a competitor to its own self-driving vehicle project. After Otto was acquired by
Uber Technologies, Inc. (Uber), Google initiated arbitration proceedings against its two
former employees for allegedly breaching their employment contracts, breaching their
fiduciary duties, fraud, tortious interference with Google’s employment relationships, and
other claims. Google sought discovery from Uber, a nonparty to the arbitration, related
to pre-acquisition due diligence done at the request of Uber and Otto’s outside counsel by
Stroz Friedberg LLC. Over Uber’s objections, the arbitration panel determined the due
diligence documents were not protected by either the attorney client privilege or the
attorney work product doctrine and ordered them produced. Uber initiated a special
proceeding in superior court seeking to vacate the arbitration panel’s discovery order and
prevailed.
Google now appeals from the superior court’s order. We deny Uber’s motion to
dismiss the appeal because the superior court’s order determined all the pending issues in
the special proceeding between Google and Uber and was thus a final appealable order.
Further, the due diligence-related documents prepared by Stroz were not protected
1
attorney-client communications. Neither were they entitled to absolute protection from
disclosure under the attorney work product doctrine. Although the materials had
qualified protection as work product, denial of the materials would unfairly prejudice
Google’s preparation of its claims. The superior court order is reversed.
BACKGROUND
Levandowski and Ron started working at Google in 2007. Both resigned from
Google in January 2016. After leaving, they formed Otto, a self-driving technology
company which Google considered a competitor of its own self-driving car project. In
August 2016, Otto was acquired by Uber. In October 2016, Google initiated arbitration
proceedings against Levandowski and Ron for allegedly breaching non-solicitation and
non-competition agreements. The arbitration between Google and Levandownski and
Ron was scheduled to commence on April 30, 2018.
DISCUSSION
I. Appealability of Superior Court’s Discovery Order
In July 2017, Google issued a third-party subpoena in the arbitration proceedings,
demanding that Uber produce documents related to pre-acquisition due diligence
conducted by the investigative firm Stroz Friedberg LLC (Stroz). Google sought all
documents related to Stroz’s investigation into Levandowski, Ron, and Otto, including a
report Stroz prepared at the request of counsel. Uber objected and refused to produce the
documents, asserting they were protected under the attorney-client privilege and as
attorney work product.
In September 2017, Google moved in the arbitration to compel production of the
Stroz documents. The arbitration panel chair found these Stroz-related materials (“Stroz
Materials”) were not privileged or attorney work product. Uber appealed to the full
arbitration panel which summarily affirmed the chair’s order.
Uber petitioned the San Francisco Superior Court to vacate the panel’s discovery
order. The superior court granted Uber’s petition and vacated the arbitration panel’s
decision, requiring Uber to produce the documents (the “Order” or “Discovery Order”).
2
On January 22, 2018, Google filed this appeal, asserting the Order was a final
appealable “order vacating an [arbitration] award.” Days later, in an effort “to accelerate
adjudication of the issues raised by Google’s appeal,” Google petitioned for a writ of
mandate, prohibition, and/or other appropriate relief (Case No. A153457), asking this
Court to direct the superior court to vacate the Order. This court summarily denied the
writ.
In February 2018, Uber moved to dismiss this appeal on the ground that we lack
jurisdiction. Following oral argument on Uber’s motion, we deferred a decision on the
motion to dismiss until we considered the appeal on its merits.1
Uber contends this court lacks jurisdiction over Google’s appeal because the trial
court’s Discovery Order was not a final arbitration award and thus not appealable.
Google argues the Order was final, conclusive, and appealable as “[a]n order vacating an
award” under Code of Civil Procedure section 1294, subdivision (c).2
Section 1294 governs the right to appeal from trial court orders in arbitration
matters. It provides that “ ‘[a]n aggrieved party may appeal from: [¶] (a) An order
dismissing or denying a petition to compel arbitration. [¶] (b) An order dismissing a
petition to confirm, correct or vacate an award. [¶] (c) An order vacating an award unless
a rehearing in arbitration is ordered. [¶] (d) A judgment entered pursuant to this title. [¶]
(e) A special order after final judgment.’ ” (Vivid Video, Inc. v. Playboy Entertainment
Group, Inc. (2007) 147 Cal. App. 4th 434, 442 (Vivid Video).)
“ ‘ “[N]o appeal can be taken except from an appealable order or judgment, as
defined in the statutes and developed by the case law.” ’ [Citation.]” (City of Gardena v.
Rikuo Corp. (2011) 192 Cal. App. 4th 595, 601.) “The existence of an appealable order or
judgment is a jurisdictional prerequisite to an appeal.” (Canandaigua Wine Co., Inc. v.
County of Madera (2009) 177 Cal. App. 4th 298, 302 (Canandaigua).)
1
We ordered Google’s writ petition in A153457 be deemed the opening brief in
this appeal and that the record in A153457 serve as the record in this case.
2
All statutory references are to the Code of Civil Procedure unless otherwise
indicated.
3
“[Code of Civil Procedure] Section 904.1, subdivision (a), governs the right to
appeal in civil actions. It codifies the ‘one final judgment rule,’ which provides that
‘ “ ‘an appeal may be taken only from the final judgment in an entire action.’ ”
[Citation.]’ [Citation.] A judgment is final, and therefore appealable, when it embodies
‘the final determination of the rights of the parties in an action or proceeding’ (§ 577). A
judgment constitutes the final determination of the parties’ rights ‘ “where no issue is left
for future consideration except the fact of compliance or noncompliance with [its]
terms . . . .” [Citation.]’ [Citation.]” (Kaiser Foundation Health Plan, Inc. v. Superior
Court (2017) 13 Cal.App.5th 1125, 1138 (Kaiser Foundation).) “The one final judgment
rule is a ‘fundamental principle of appellate practice that prohibits review of intermediate
rulings by appeal until final resolution of the case.’ [Citation.] ‘[A]n appeal cannot be
taken from a judgment that fails to complete the disposition of all causes of action
between the parties. . . .’ ” (C3 Entertainment, Inc. v. Arthur J. Gallagher & Co. (2005)
125 Cal. App. 4th 1022, 1025.) “ ‘[E]xceptions to the one final judgment rule should not
be allowed unless clearly mandated.’ ” (In re Baycol Cases I & II (2011) 51 Cal. 4th 751,
757.) “[I]f the order or judgment is not appealable, the appeal must be dismissed.”
(Canandaigua, supra, 177 Cal.App.4th at p. 302.)
We know of no case that addresses the precise issue before us, namely, whether a
party to an arbitration has a right to appeal an adverse superior court order vacating an
arbitrator’s discovery order in favor of a third party to the arbitration.
Our Supreme Court’s decision in Berglund v. Arthroscopic & Laser Surgery
Center of San Diego, L.P. (2008) 44 Cal. 4th 528 (Berglund) provided the superior court
jurisdiction to consider Uber’s petition to vacate the discovery order in the underlying
arbitration. There, a nonparty to an arbitration proceeding was ordered by the arbitrator
to produce documents. (Id. at p. 533.) The nonparty moved for a protective order in the
superior court, which the superior court denied because it believed it lacked jurisdiction
to review an arbitrator’s discovery order. (Ibid.) The nonparty appealed. (Ibid.) The
Supreme Court acknowledged that discovery disputes between parties to an arbitration
agreement are “ ‘generally immune from judicial review.’ ” (Id. at p. 534.) The Court
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explained that parties to an arbitration agreement knowingly accept the limited judicial
review of an arbitrator’s decisions and the risk that an arbitrator might make a mistake.
(Ibid.) However, nonparties, who did not consent to any arbitration agreement, “cannot
be compelled to arbitrate a dispute.” (Id. at p. 536.) Absent such consent, the Court
concluded that nonparties were entitled to full judicial review of any adverse discovery
order issued by the arbitrator against them. (Id. at pp. 537-538.) This result was
necessary to preserve the legal rights of nonparties who never agreed to the arbitration in
the first place. (Id. at p. 538.) While Berglund established that a nonparty dissatisfied
with an arbitrator’s discovery decision may seek full judicial review in the superior court,
it did not determine whether a party to the arbitration dissatisfied with the superior court
decision then has a right of direct appeal.
On this issue unaddressed by Berglund, we conclude such a right of direct appeal
exists based on the one final judgment rule. Here, the Discovery Order was the final
resolution of the special proceeding initiated by Uber for the sole purpose of vacating the
arbitration panel’s order compelling Uber to produce the Stroz Materials. The superior
court’s order resolved the dispute between Uber and Google with finality. In vacating the
arbitration panel’s award, the court’s order relieved Uber of any obligation to produce the
Stroz Materials in the underlying arbitration and conclusively determined Uber’s
obligations to Google. There was nothing left for the superior court to determine as
between Uber and Google, and the Order disposed of all issues between them in the
special proceeding. Since the Order was “the final determination of the rights of the
parties” (§ 577), it is appealable.
The Discovery Order also had the finality required under section 1294. “Under
section 1294, appealable arbitration orders require finality. . . . ‘[T]he Legislature’s
philosophy and intent in drafting section 1294 was that there should be no appellate
consideration of intermediate rulings in arbitration disputes if the superior court was of
the view that there should be initial or further proceedings in arbitration. . . .’ An
intermediate ruling in an arbitration dispute that contemplates further proceedings in
arbitration is not appealable. [Citations.] Requiring finality in appealable arbitration
5
orders is consistent both with the language of section 1294 and the general prohibition of
appeals from interlocutory nonfinal judgments in section 904.1, subdivision (a).
[Citations.]” (Vivid Video, supra, 147 Cal.App.4th at pp. 442–443.) The Discovery
Order contemplated no further proceedings between Google and Uber. It completely
resolved the parties’ dispute as Uber was not a party to the arbitration.
Finally, even though the case did not arise out of an arbitration proceeding, City of
Woodlake v. Tulare County Grand Jury (2011) 197 Cal. App. 4th 1293 (Woodlake),
underscores our conclusion. There, the appellant sought review of an order denying
enforcement of an investigative subpoena “in which enforcement or nonenforcement was
the only issue before the superior court.” (Id. at p. 1299.) The court noted that
“ ‘[g]enerally, discovery orders are not appealable’ ” but found that “ ‘generalization is
inapplicable’ ” when “ ‘the order is ancillary to litigation in another jurisdiction and
operates as the last word by a California trial court on the matters at issue.’ ” (Ibid.) The
Woodlake court observed that the respondent did not contend that its petition remained
pending. (Ibid.) Nor did the respondent contend “further proceedings are contemplated
in the trial court, the traditional criterion for finality of an order.” (Ibid.) The court
concluded that the trial court’s order terminated the entire proceeding on the merits and
was appealable as a final judgment. (Ibid.) Such is the case here.
Uber contends the Discovery Order is not a final award because it “did not dispose
of any of the claims to be tried in the arbitration.” According to Uber, “[t]he only thing
the Order did is protect Uber . . . from having to produce privileged and work-product
protected material from discovery in the Arbitration.” Uber is correct that the trial
court’s Order decided only a preliminary discovery dispute in the arbitration. However,
Uber was not a party to the arbitration, and the Order determined the entire controversy
between Uber and Google in the special proceeding. As Uber itself cites, the “one final
judgment rule” requires that a judgment is appealable when it embodies “the final
determination of the rights of the parties in an action or proceeding.” (§ 577, italics
added.)
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At oral argument on the motion to dismiss, Uber argued the Order lacked finality
for other reasons. Uber explained that after a final award on the merits in the underlying
arbitration, Google would be able to petition the superior court to confirm, vacate, or
modify the award, and could appeal that result if so inclined. Uber emphasized the
Discovery Order eventually could be reviewed in such a direct appeal by Google. We do
not dispute Google’s ability to appeal from a judgment confirming an adverse arbitration
award. However, Google’s right to eventually appeal an adverse judgment from its
arbitration with Levandowski and Ron does not render the Discovery Order intermediate
or incomplete in the dispute between Uber and Google. Nor does it deprive Google of its
ability to appeal a final judgment in a fully adjudicated special proceeding.
The two principle cases Uber relies upon do not compel a different result. In
Judge v. Nijjar Realty, Inc. (2014) 232 Cal. App. 4th 619 (Judge), the arbitrator issued a
“partial final award” which concluded that an agreement permitted arbitration of the
plaintiff’s class action claims. (Id. at p. 627.) The defendants petitioned the trial court to
vacate the arbitrator’s award. (Ibid.) The trial court did so, ruling the arbitrator exceeded
her powers by deciding the arbitrability of the class claims, and the plaintiff appealed.
(Id. at pp. 627-628.) The appellate court recognized an order vacating an award in the
absence of a rehearing was appealable under section 1294, subdivision (c), but
determined the trial court’s order did not vacate an “award” within the meaning of the
statute. (Id. at pp. 633-634.) The Judge court explained that “an arbitration award must
‘include a determination of all the questions submitted to the arbitrators the decision of
which is necessary to determine the controversy.’ ” (Id. at p. 633.) The order contested
in Judge did not resolve the arbitration but decided only, as a threshold matter, that class
claims were subject to arbitration. (Id. at p. 638.) Judge held the order vacating the class
arbitrability determination was not an appealable final award and dismissed the appeal.
(Id. at pp. 632, 638.)
In Kaiser Foundation, supra, 13 Cal.App.5th.1125, Kaiser moved an arbitration
panel to dismiss claims brought by several hospitals for Kaiser’s alleged failure to
reimburse them for medical services provided to its members. (Id. at p. 1130.) The
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arbitration panel denied the motion, and Kaiser petitioned the trial court to vacate the
award. (Ibid.) After the trial court denied the petition and entered judgment confirming
the award, Kaiser appealed. (Ibid.) However, the appellate court determined the award
was not appealable. (Id. at pp. 1144, 1146.) Citing to Judge, the Kaiser Foundation
court explained that the partial final award “did not ‘determin[e] . . . all the questions
submitted to the arbitrators the decision of which is necessary to determine the
controversy’ [citation].” (Id. at pp. 1143-1144.) The court noted that “[t]he controversy
between Kaiser and [the hospitals] encompasse[d] a wide range of questions” but the
partial final award determined “the sole question” of whether the plaintiffs’ claims were
preempted and subject to certain exhaustion requirements. (Id. at p. 1144.) According to
the court, “[t]he partial final award did not resolve all of the other questions necessary to
determine the parties’ controversy” which had yet to be ruled upon and were pending
before the arbitration panel. (Ibid.)
Both cases are distinguishable. First of all, the orders appealed in both Judge and
Kaiser involved disputes between the parties to the underlying arbitration agreement. In
both cases, additional controversies between the parties remained, and the parties would
continue to resolve those in arbitration. In contrast, this case involved a nonparty to the
underlying arbitration, and the single dispute involving the nonparty was conclusively
determined by the superior court. Judge and Kaiser Foundation do not apply.
Because the Discovery Order is a final determination of the discovery rights
between Uber and Google in the special proceeding commenced for the sole purpose of
resolving this discovery dispute, the order is appealable. Uber’s motion to dismiss is
denied, and we proceed to consider the merits of the appeal.
II. The Stroz Materials
On February 22, 2016, Uber and Otto signed a term sheet for Uber’s acquisition of
Otto.3 The term sheet established a process for Uber to potentially acquire 100%
3
Many of the documents pertaining to that agreement have been filed under seal,
but some of the details in the agreements are otherwise already in the public record. At
oral argument, the court requested the parties to identify the specific factual material in
8
ownership of Otto through the execution of a Put Call Agreement. An “Indemnity
Construct” agreement was part of the term sheet and provided that Uber would indemnify
Levandowski and Ron from certain claims Google might assert against them post-
acquisition. These included claims for the infringement or misappropriation of any
intellectual property; breach of fiduciary duty to their former employer; and breach of
any non-solicitation, non-competition, or confidentiality agreement.
To determine the scope of the indemnified claims, the Indemnity Construct
contained a “Pre-Signing Due Diligence Process.” An “Outside Expert” was to
investigate certain Otto “Diligenced Employees,” including Levandowski and Ron. The
Outside Expert was to prepare a “third party report,” which the term sheet defined as “the
written report(s) . . . summarizing in detail all of the facts, circumstances, activities or
events obtained by the Outside Expert from any Diligenced Employee that the Outside
Expert deems are reasonably related to any Bad Act of such Diligenced Employee, in
each case, based on the interviews, forensic due diligence and other due diligence
investigation with respect to all Diligenced Employees conducted by the Outside Expert.”
“Bad Acts” covered any infringement or misappropriation of trade secrets, breach of
fiduciary duty, and violation of any non-solicitation, non-competition, or confidentiality
agreement committed by an employee.
Stroz, an independent third party and digital forensic expert, was the Outside
Expert tasked with performing the pre-signing due diligence and was to be “jointly
directed by and engaged by” Uber and Otto. Stroz was jointly retained in an engagement
letter dated March 4, 2016, by Uber’s outside counsel at Morrison Foerster (MoFo) and
Otto’s outside counsel at O’Melveny & Myers (O’Melveny). Their engagement letter
with Stroz states: “The purpose of the investigation is to ascertain facts that, in the
opinion of [MoFo and O’Melveny], bear on issues of whether certain current or
the record each party believes must remain sealed. Based on the parties’ responses to that
request and in light of the facts and documents that are otherwise already known to be in
the public record, we have redacted portions of this opinion where necessary to protect
information under seal not already in the public domain.
9
prospective employees . . . of Ottomotto have improperly retained on devices or in
storage repositories not belonging to former employers, confidential information
belonging to former employers, and whether such current or prospective employees
breached any fiduciary duty, duty of loyalty, or other confidentiality, non-solicitation,
non-competition or other obligations based in contract, statute or otherwise.”
During the pre-acquisition due diligence, Levandowski was represented by
Donahue Fitzgerald LLP’s John Gardner. Ron was personally represented by Levine &
Baker, LLP. Neither retained Stroz on behalf of their clients.
In and around March 2016, Stroz began its investigation under MoFo’s and
O’Melveny’s supervision and direction. Stroz collected from Levandowski and Ron
various electronic devices and access to various cloud-based storage accounts. In
addition, Stroz interviewed Levandowski and Ron.
Sometime in April 2016, Stroz gave Uber’s counsel at MoFo an oral report on its
preliminary fact finding and memos of interviews with Levandowski and Ron.
On April 11, 2016, Uber and Otto executed the Put Call Agreement and finalized
the indemnification agreement.
That same day, Otto, Levandowski, Ron, and Uber through their respective
counsel executed a “Joint Defense, Common Interest, and Confidentiality Agreement”
“in contemplation of potential investigations, litigation, and/or other proceedings” related
to Uber’s acquisition of Otto. Uber claims that the parties had an oral joint defense and
common interest agreement as of February 24, 2016.
On August 5, 2016, Stroz issued its final, written report to Uber’s MoFo attorneys
and Otto’s O’Melveny attorneys. That report is labeled “Privileged & Confidential [¶]
Attorney Work Product.”
On February 23, 2017, with Google’s arbitration pending against Levandowski
and Ron for the alleged breach of their employment contracts, Google filed a related civil
action, Waymo LLC v. Uber Technologies, Inc., Case No 3:17-cv-00939-WHA in the
United States District Court for the Northern District of California (the “Federal Case”).
In this Federal Case, Waymo, the Google-related self-driving car company, sought
10
damages and injunctive relief against Uber based on alleged trade secret misappropriation
arising out of Uber’s acquisition of Otto.
Waymo moved to compel production of the Stroz report and its exhibits. In June
2017, the magistrate judge granted Waymo’s motion. The magistrate held the Stroz
documents were not protected by Levandowski’s attorney-client privilege because the
“record is clear that Uber and Otto alone engaged Stroz to conduct the due diligence
required by the Term Sheet.” Nor were the documents protected by Uber’s attorney
client privilege because Stroz interviewed Levandowski and Ron in their individual
capacities, not as Otto executives. The magistrate also found the Stroz report was not
protected attorney work product, and not protected under the common interest doctrine.
Over the objections of Uber, Otto, and Levandowski, the district court affirmed the
magistrate’s order. Levandowski unsuccessfully sought mandamus relief in the Federal
Circuit. (See Waymo LLC v. Uber Techs., Inc. (Fed. Cir. Sept. 13, 2007) 870 F.3d 1350.)
In October 2017, Uber released the Stroz report.
As the Federal Case proceeded, the arbitration between Google and Levandowski
and Ron moved forward. Like Waymo did in the Federal Case, Google sought and
moved to compel production of the Stroz-related documents in the arbitration. The
arbitration panel chair found these Stroz Materials were protected by neither the attorney-
client privilege nor attorney work product doctrine. Uber appealed to the full arbitration
panel which summarily affirmed the chair.
Then, Uber successfully petitioned the San Francisco Superior Court to vacate the
panel’s order. The superior court held the Stroz Materials were protected under the
attorney client privilege, and it was not waived when the documents were shared between
Uber, Otto, Levandowski, Ron, and their respective attorneys. The superior court granted
Uber’s petition and vacated the arbitration panel’s decision compelling Uber to produce
the documents.
On January 22, 2018, Google appealed from the Order. We now address it on the
merits.
A. Applicable Standards of Review
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The parties disagree on the standard of review we must apply on appeal and the
standard the superior court should have applied in reviewing the arbitration panel’s order.
Google relies on Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal. 4th
362 (Advanced) to contend we must review the superior court’s order de novo. Uber
argues Advanced says nothing about our standard of review of a court’s order vacating an
arbitrator’s order compelling discovery from a nonparty. It views this case as analogous
to a petition for review of an interlocutory order, citing Costco Wholesale Corp. v.
Superior Court (2009) 47 Cal. 4th 725, 733 (Costco), and submits our review should be
for abuse of discretion.
De novo review is proper here. As we have discussed above, this is a final order
that conclusively resolved the dispute between Uber and Google. Thus, we decline to
employ a review standard more appropriately applied to interlocutory orders, as Uber
urges. Appellate courts review superior court orders vacating a final arbitration award de
novo. (See Malek v. Blue Cross of California (2004) 121 Cal. App. 4th 44, 55-56 (Malek);
Reed v. Mutual Service Corp. (2003) 106 Cal. App. 4th 1359, 1364-1365.) We see no
reason to use a different standard. In addition, to the extent that the superior court’s
ruling rests upon a determination of disputed factual issues, we review them for
substantial evidence. (Malek, supra, 121 Cal.App.4th at pp. 55-56; Reed, supra, 1106
Cal.App.4th at p. 1365.)
When it comes to the standard of review applied by the superior court to the
arbitration panel’s order, the parties not unexpectedly flip positions. Google contends the
superior court erroneously applied the de novo standard and disregarded the arbitration
panel’s findings of fact. Google asserts the superior court should have applied the
deferential abuse of discretion standard. Uber argues the superior court properly applied
the de novo standard. We do not reach this issue because under either standard the
superior court erred in vacating the arbitration panel’s decision.
B. Attorney-Client Privilege
Under California law, an attorney-client communication is one “between a client
and his or her lawyer in the course of that relationship and in confidence.” (Evid. Code,
12
§ 952.) An attorney-client relationship exists when the parties satisfy the definitions of
“lawyer” and “client” as specified in Evidence Code sections 950 and 951, respectively.
For purposes of the attorney-client privilege, “client” is defined in relevant part as “a
person who, directly or through an authorized representative, consults a lawyer for the
purpose of retaining the lawyer or securing legal service or advice from him in his
professional capacity . . . .” (Evid. Code, § 951, italics added.) “Confidential
communication” protected by the privilege refers to “information transmitted between a
client and his or her lawyer in the course of that relationship and in confidence” by
confidential means. (Evid. Code, § 952.) A confidential communication may include “a
legal opinion formed and the advice given by the lawyer in the course of that
relationship.” (City of Petaluma v. Superior Court (2016) 248 Cal. App. 4th 1023, 1032.)
The attorney client privilege may also extend to third parties who have been
engaged to assist the attorney in providing legal advice. (See State Farm Fire &
Casualty Co. v. Superior Court (1997) 54 Cal. App. 4th 625, 639 (State Farm) [“ ‘It is no
less the client’s communication to the attorney when it is given by the client to an agent
for transmission to the attorney, and it is immaterial whether the agent is the agent of the
attorney, the client, or both.’ ”].)
In assessing whether a communication is confidential and thus privileged, the
initial focus of the inquiry is on the “dominant purpose of the relationship” between
attorney and client and not on the purpose served by the particular communication.
(Costco, supra, 47 Cal.4th at pp. 739-740, italics omitted.) “If the trial court determines
that communications were made during the course of an attorney-client relationship, the
communications, including any reports of factual material, would be privileged, even
though the factual material might be discoverable by other means.” (Id. at p. 740.)
The privilege “is to be strictly construed” in the interest of bringing to light
relevant facts. (Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 396.) The
privilege is also to be strictly construed “where the relationship is not clearly
established.” (People v. Velasquez (1987) 192 Cal. App. 3d 319, 327, fn. 4.)
13
“When a party asserts the attorney-client privilege it is incumbent upon that party
to prove the preliminary fact that a privilege exists. [Citation.] Once the foundational
facts have been presented, i.e., that a communication has been made ‘in confidence in the
course of the lawyer-client . . . relationship, the communication is presumed to have been
made in confidence and the opponent of the claim of privilege has the burden of proof to
establish that the communication was not confidential,’ or that an exception exists.
[Citations.]” (State Farm, supra, 54 Cal.App.4th at p. 639.)
Uber never established the Stroz Materials were attorney-client communications
nor could it. The Stroz Materials resulted from a pre-acquisition due diligence process
Uber’s and Otto’s attorneys jointly hired Stroz to perform. Both Levandowski and Ron
had separate personal counsel who never retained Stroz. Uber and Otto attorneys
directed Stroz’s efforts, not the personal attorneys for Levandowski or Ron. Moreover, at
the time Stroz performed its due diligence, the interests of Uber were adverse to those of
Otto, Levandowski and Ron. Uber was in the process of evaluating whether it would
purchase Otto and in doing so indemnify Levandowski and Ron. To that end, when Stroz
interviewed Levandowski and Ron and collected their devices for review, it did not do so
as their agent or on behalf of their attorneys. Levandowski and Ron were the subjects of
an investigation and were not MoFo or O’Melveny clients. Their communications to
MoFo and O’Melveny lawyers through Stroz (the agent) did not constitute information
transmitted from client to lawyer. This is made clear in the Stroz engagement letter. It
provides that “under no circumstances will Stroz Frieberg disclose to Uber or [MoFo] or
any of their representatives any attorney-client privileged communications between
Ottomotto and/or any of its employees, stockholders, officers, members, managers or
directors, on the one hand, and counsel for Ottomotto or counsel to any of such persons,
on the other hand, that are disclosed to or discovered by Stroz Friedberg in its
performance of the services. For the avoidance of doubt, communications between
Ottomotto and/or any of its employees, stockholders, officers, members, managers or
directors, on the one hand, and any of the following attorneys and law firms, on the other
hand, is attorney-client privileged communication and will not be disclosed by Stroz
14
Friedberg to Uber or [MoFo] or any of their respresentatives: O’Melveny & Myers
LLP, . . . .” Thus, Levandowski’s and Ron’s communications with Stroz, as reflected in
the Stroz Materials, and shared with MoFo are not protected by the attorney-client
privilege.
Uber argues that the attorney-client privilege attaches to the Stroz Materials
because Levandowski and Ron were Otto employees when they communicated with
Stroz, who was acting as the agent for Otto’s lawyers at O’Melveny. Uber observes that
“[w]hen a lawyer for a corporation gathers facts from the corporation’s employees in
order to give legal advice to the corporation, those factual communications are
privileged.” Levandowski’s and Ron’s positions as Otto employees or executives does
not alter our analysis. The record shows that neither of them had any attorney-client
relationship with O’Melveny. Each retained separate personal counsel, and the Stroz
engagement letter makes clear that attorney-client privileged information obtained from
Otto employees is not to be shared with Uber and MoFo. Further, Levandowski’s and
Ron’s personal attorneys established additional parameters around sharing certain
information with the MoFo and O’Melveny lawyers. Prior to turning over devices and
account information to Stroz, Ron’s attorney instructed Stroz not to provide MoFo or
O’Melveny or Uber or Otto any of Ron’s privileged documents.4
Next, Uber claims these communications “were made for the purpose of seeking
legal advice” to “assess the potential litigation threats faced” from Google. The record
shows otherwise. The term sheet’s “Indemnity Construct” does not discuss anticipated
litigation. Rather, Diligenced Employees are required to cooperate and make their
devices available to Stroz as a pre-condition to the execution of the Put Call Agreement
and as a means to determine the scope of the indemnified claims. Levandowski did not
comply with the Term Sheet to seek O’Melveny’s legal advice. Rather, he provided
Stroz information to clarify the extent of any obligation arising out of the Indemnity
4
[
REDACTED
]
15
Construct. In a letter written to the MoFo and O’Melveny attorneys, Levandowski’s
lawyer, John Gardner, stated the purposes of the Stroz examination were to “(i) support
the indemnification agreement and (ii) to provide evidence that [Uber] and Otto exercised
due care prior to . . . entering into the Transaction Documents.” Asked in deposition
whether he agreed with the statement by Gardner, Otto’s designated company witness
testified, “You would have to ask Uber about the purposes. As I’ve previously indicated,
my understanding is that it was more broadly related to Uber determining whether to
enter into the transaction, including the indemnification agreement.” The need for legal
advice or to assess potential litigation threat did not drive Levandowski’s or Ron’s
communications with Uber and Otto’s lawyers.
Because Uber was unable to demonstrate Levandowski’s or Ron’s
communications with Stroz were made in the course of an attorney-client relationship,
the attorney-client privilege does not attach.
C. Attorney Work Product
Uber contends that even if the Stroz Materials were not privileged attorney-client
communications, they were protected attorney work product. Google argues the attorney
work product doctrine provides no alternate ground to support the superior court’s
Discovery Order. We agree with Google.
“An attorney’s work product is the product of the attorney’s ‘ “ effort, research,
and thought in the preparation of his client’s case. It includes the results of his own
work, and the work of those employed by him or for him by his client, in investigating
both the favorable and unfavorable aspects of the case, the information thus assembled,
and the legal theories and plan of strategy developed by the attorney—all as reflected in
interviews, statements, memoranda, correspondence, briefs, and any other writings
reflecting the attorney’s ‘impressions, conclusions, opinions, or legal research or
theories’ and in countless other tangible and intangible ways.” ’ [Citations.]” (Meza v.
H. Muehlstein & Co. (2009) 176 Cal. App. 4th 969, 977.)
The attorney work product doctrine, codified at Code of Civil Procedure section
2018.030, provides: “A writing that reflects an attorney’s impressions, conclusions,
16
opinions, or legal research or theories is not discoverable under any circumstances.” (§
2018.030, subd. (a).) All other attorney work product “is not discoverable unless the
court determines that denial of discovery will unfairly prejudice the party seeking
discovery in preparing that party’s claim or defense or will result in an injustice.” (§
2018.030, subd. (b).) The superior court did not address the attorney work product
doctrine in the Discovery Order at issue in this appeal, so it made no relevant findings.
Based on the record, the Stroz Materials do not meet either standard.
The Stroz Materials do not reflect an attorney’s impressions, conclusions,
opinions, or legal research or theories. Rather, the Stroz Materials reflect the result of a
factual investigation into possible past misconduct committed by Levandowski and Ron
in the course of leaving Google so that Uber could decide whether to proceed with the
Otto transaction and indemnify Levandowski and Ron. The materials summarize what
Levandowski and Ron told Stroz without the filter of Stroz’s impressions, conclusions,
opinions or legal theories. The exhibits to the Stroz report report [
REDACTED ]
In addition, the engagement letter between Stroz and counsel further indicates that Stroz
was not authorized to practice law and its services were “limited to non-legal services,”
Thus, the Stroz Materials do not constitute opinion work product that is absolutely
protected under section 2018.030, subdivision (a).
Nor do the Stroz Materials qualify for the limited privilege for non-opinion work
product set forth in section 2018.030 subdivision (b). Substantial evidence in the record
supports a conclusion that denial of discovery will unfairly prejudice Google in preparing
its claims. [
REDACTED
17
] These findings supported the arbitration panel’s conclusion that production of
the Stroz Materials “may be one of the only effective ways for Google to obtain certain
relevant information in this case.”5
Uber disputes that Google showed a “substantial need” for the information, and
further argues Google cannot make such a showing because it elected to proceed with the
arbitration without the Stroz Materials while there are alternative means to access it. We
disagree. There is substantial evidence in this record from which the arbitrators could
conclude the information in the Stroz Materials was material to Google’s claims and
could not otherwise be obtained. Moreover, there is no evidence identifying the
alternative sources for it. We simply give no weight to the fact that Google was
proceeding with the arbitration proceedings in the face of the adverse ruling from the trial
court. These factors do not abate or otherwise negate the prejudice Google will unfairly
suffer from being denied the Stroz Materials in arbitration.
D. Waiver and Common Interest Doctrine
Finally, Google contends even if Levandowski’s communications with Stroz were
protected under the attorney-client privilege or attorney work product, any such privilege
was waived by disclosure to Uber and not preserved by the common-interest doctrine.
Google contends the superior court’s reliance on the common-interest doctrine was
misplaced. Because Uber never established the Stroz Materials were privileged or work
product, we need not reach this issue. (See OXY Resources California LLC v. Superior
Court (2004) 115 Cal. App. 4th 874, 889.)
DISPOSITION
Uber’s motion to dismiss Google’s appeal is denied. The superior court’s
Discovery Order granting Uber’s petition to vacate the arbitration panel’s discovery
5
On March 12, 2018, Google requested we take judicial notice of an order from
the underlying arbitration which it cites to in its reply brief in support of this argument.
In our April 26, 2018 order, we further deferred ruling on the request until our
consideration of this appeal on the merits. We now deny the request as unnecessary to
our resolution of this appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger &
Harrison (1998) 18 Cal. 4th 739, 748, fn. 6.)
18
decision is reversed. The matter is remanded to the superior court with directions to enter
a new order denying Uber’s petition to vacate the arbitration award. Google is awarded
costs on appeal.
19
_________________________
Siggins, P.J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
20
Uber Technologies, Inc. v. Google, LLC, A153653
21
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Honorable Harold E. Kahn
Counsel:
Keker, Van Nest & Peters, Robert A. Van Nest, Dan Jackson, Jo W. Golub, W. Hamilton
Jordan, Rachel E. Meny, Thomas E. Gorman for Defendant and Appellant.
Boies Schiller Flexner, Meredith R. Dearborn, Juan P. Valdivieso, Hamish Hume, Jessica
Phillips for Plaintiff and Respondent.
Goodwin Procter, Andrew S. Ong for Real Party in Interest, Andrew Levandowski.
Taylor & Patchen, Karen S. Dhadialla for Real Party in Interest, Lior Ron.
22