Levandowsk Motion and Yoo Letter

Case 3:17-cv-00939-WHA Document 466 Filed 05/18/17 Page 1 of 21
1 MILES EHRLICH (Bar No. 237954)

miles@ramsey-ehrlich.com
2 ISMAIL RAMSEY (Bar No. 189820)
izzy@ramsey-ehrlich.com
3 AMY CRAIG (Bar No. 269339)
amy@ramsey-ehrlich.com
4 RAMSEY & EHRLICH LLP
803 Hearst Avenue
5 Berkeley, CA 94710
(510) 548-3600 (Tel)
6 (510) 291-3060 (Fax)
7
Attorneys for Non-Party Anthony Levandowski
8
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12 WAYMO LLC, ) Case No.: 3:17-cv-00939-WHA
)
13 ) NON-PARTY ANTHONY
Plaintiff, ) LEVANDOWSKIS NOTICE OF
14 ) MOTION; MOTION FOR
v.
) INTERVENTION UNDER RULE 24
15 ) AND MODIFICATION OF ORDER
UBER TECHNOLOGIES, INC., et al., ) GRANTING IN PART AND DENYING
16 ) IN PART PROVISIONAL RELIEF;
Defendants. ) MMEMORANDUM OF POINTS AND
17 ) AUTHORITIES
)
18 ) Date: To be set by the Court
) Time: To be set by the Court
19 ) Place: Courtroom 8, 19th Floor
) Judge: The Honorable William H. Alsup
20
21
NOTICE OF MOTION AND MOTION FOR INTERVENTION AND MODIFICATION
22
OF COURTS MAY 11, 2017, ORDER GRANTING PROVISIONAL RELIEF
23
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
24
PLEASE TAKE NOTICE that, on at a date and time selected by this Court in the
25
26 courtroom of the Honorable William H. Alsup, San Francisco Courthouse, Courtroom 8, 19th
27 Floor, 450 Golden Gate Avenue, 19th Floor, San Francisco, California 94102, non-party
28
i
NON-PARTY ANTHONY LEVANDOWSKIS MOTION TO INTERVENE AND MODIFY MAY 11, 2017 ORDER
Case No. 3:17-cv-00939-WHA
1 Anthony Levandowski will move and hereby does bring a motion for intervention for the limited
2 purpose of requesting a modification of the Courts May 11, 2017 Order Granting in Part and
3 Denying in Part Plaintiffs Motion for Provisional Relief (Docket No. 433). Specifically, Mr.
4 Levandowski requests modifications to paragraphs 2(b), 4, and 5 under Scope of Relief
5 Granted, to the extent they seek to compel Mr. Levandowski to waive his Fifth Amendment,
6
attorney-client privilege, work product protection, and common interest privilege. This motion
7
is brought pursuant to Federal Rule of Civil Procedure 24 and the Fifth Amendment to the U.S.
8
Constitution.
9
This motion is based upon this Notice of Motion and Motion; the Memorandum of Points
10
and Authorities in support thereof; the records, pleadings, and documents on file in this action;
11
and such further and additional evidence and argument as may be presented at or before the time
12
of the hearing on this motion.
13
14 Date: May 18, 2017 Respectfully submitted,
15
16 /s/ Ismail J. Ramsey
17 Miles Ehrlich
Ismail Ramsey
18 Amy Craig
Ramsey & Ehrlich
19 Counsel for Non-Party
20 Anthony Levandowski
21
22
23
24
25
26
27
28
ii
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................... 1
3 II. FACTUAL BACKGROUND .............................................................................................. 3
4
III. MOTION TO INTERVENE ................................................................................................ 6
5
A. Intervention as of Right ....................................................................................................... 6
6
7 B. Permissive Intervention ....................................................................................................... 8
8 IV. THE COURT MUST MODIFY ITS ORDER TO AVOID VIOLATING MR.
9 LEVANDOWSKIS FIFTH AMENDMENT RIGHTS ...................................................... 9
10
A. Supreme Court Precedent Prohibits the Government from Attempting to Overcome an
11
Individuals Fifth Amendment Privilege by Threatening to Fire Him .............................. 10
12
B. The Courts Order That Uber Must Threaten Mr. Levandowski with Termination and
13
Its Subsequent Execution by Uber is Unconstitutional Government Action................ 11
14
15 C. The Court Should Modify its Order ................................................................................... 16
16
17
18
19
20
21
22
23
24
25
26
27
28
iii
1 TABLE OF AUTHORITIES
2 CASES
3 American Tel. & Tel., 642 F.2d at 1292.......................................................................................... 8
4 Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ..................................................................... 15
5 Blum v. Yaretsky, 457 U.S. 991 (1982) ......................................................................................... 12
6 Convertino v. United States DOJ, 674 F. Supp. 2d 97 (D.D.C. 2009) ........................................... 8
7 Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000)............................................ 3
8 Fisher v. United States, 425 U.S. 391 (1975) ................................................................................. 7
9 Garrity v. State of New Jersey, 385 U.S. 493 (1967)................................................ 1, 9, 10, 11, 15
10 Hoffman v. United States, 341 U.S. 479 (1951)............................................................................ 10
11 In re Grand Jury Proceedings, 735 F.2d 1330 (11th Cir. 1984) ................................................ 7, 8
12 In re Grand Jury Subpoena (Newparent, Inc.), 274 F.3d 563 (1st Cir. 2001)................................ 7
13 In re Katz, 623 F.2d 122 (2nd Cir. 1980).................................................................................... 7, 8
14 Johnson v. Knowles, 113 F.3d 1114 (9th Cir. 1997)..................................................................... 12
15 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) ............................................ 8
16 Lefkowitz v. Cunningham, 431 U.S. 801 (1977) ........................................................................... 11
17 Luna v. Massachusetts, 354 F.3d 108 (1st Cir. 2004)................................................................... 11
18 Malloy v. Hogan, 378 U.S. 1 (1964) ............................................................................................. 10
19 Minnesota v. Murphy, 465 U.S. 420 (1984) ................................................................................. 11
20 Peterson v. City of Greenville, 373 U.S. 244 (1963) .................................................................... 12
21 Quinn v. United States, 349 U.S. 155 (1955)................................................................................ 10
22 Sackman v. Liggett Group, 167 F.R.D. 6 (E.D.N.Y. 1996) ........................................................ 7, 8
23 Simmons v. United States, 390 U.S. 377 (1968) ........................................................................... 15
24 Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) ......................... 6, 7
25 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987)........................................... 9
26 Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999).................................... 12
27 Uniformed Sanitation Men Assn v. Commr of Sanitation, 392 U.S. 280 (1968) ....................... 11
28
iv
1 United States v. Bright, 596 F.3d 683 (9th Cir. 2010) .................................................................. 10
2 United States v. Goodpaster, 65 F. Supp. 3rd 1016 (D. Or. 2014) ............................................... 11
3 United States v. Oregon, 745 F.2d 550 (9th Cir. 1984) .................................................................. 6
4 United States v. Sideman & Bancroft, LLP, 704 F.3d 1197 (9th Cir. 2013) ................................ 15
5 United States v. Stein, 541 F.3d 130 (2nd Cir. 2008) ............................................................. 12, 14
6 Waller v. Financial Corp. of Am., 828 F.2d 579 (9th Cir. 1987).................................................... 7
7 STATUTES
8 18 U.S.C. 1832 ............................................................................................................................. 3
9
U.S. CONST. art. III 1 ................................................................................................................. 11
10
RULES
11
Federal Practice and Procedure 1911, 357 (2d ed. 1986) ............................................................ 8
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v
1 MOTION FOR INTERVENTION AND MODIFICATION OF MAY 11, 2017 ORDER

2 GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR
3 PROVISIONAL RELIEF
4 I. INTRODUCTION
5
The bite of the Courts May 11, 2017 Preliminary Injunction Order, as it relates to non-
6
party Anthony Levandowski, can be summarized quite simply:
7
Waive your Fifth Amendment rights . . . or I will have you fired.
8
The choice is yours, Mr. Levandowski.
9
But, even when framed as a choice, this command runs counter to nearly a half century
10
of United States Supreme Court precedent, beginning with Garrity v. State of New Jersey, 385
11
U.S. 493 (1967), in which the Court held that the Fifth Amendment forbids a government entity
12
from threatening an individual with the choice between self-incrimination and job
13
forfeiture. Id. at 497, 500. As the Supreme Court observed in Garrity, the option to lose
14
[ones] means of livelihood or pay the penalty of self-incrimination is the antithesis of free
15
choice to speak out or to remain silent. Id. at 497. As the Supreme Court made clear, whenever
16
a state actor imposes this choice between the rock and the whirlpool, it engages in unlawful
17
constitutional compulsion, which, among other things, operates to immunize any resulting
18
testimonial statements. Id. at 496.
19
As this litigation has proceeded, Mr. Levandowski has consistently asserted his Fifth
20
Amendment privilege to avoid being forced to answer questions or produce documents relating
21
to any materials he allegedly misappropriated from Waymo. See, e.g., Docket Nos. 131, 147,
22
169, 230, 244, and 382. Yet, on the same day that the Court formally referred this matter to the
23
United States Attorneys Office for investigation of possible theft of trade secrets (Docket No.
24
428), the Court, in its May 11, 2017 Order, expressly mandated that Uber, Mr. Levandowskis
25
employer, exercise the full extent of [its] corporate, employment, contractual, and other
26
authority to cause Mr. Levandowski to return allegedly downloaded materials to
27
28
1
1 Waymo. Docket No. 433 at 22-23 (emphasis added). The Court further ordered that Uber
2 employ the full extent of [its] authority and influence to obtain cooperation from Mr.
3 Levandowski with respect to a procedure to determine every person who has seen or heard any
4 part of any downloaded materials, what they saw or heard, when they saw or heard it, and for
5 what purpose. Id. at 24 (emphasis added).
6 The Courts order, as written, leaves little room for interpretation. Anything short of
7 firing Mr. Levandowski to get him to waive his Fifth Amendment rights and attorney-client
8 privileges 1 would put Uber at risk of contempt, since it would fail to measure up to the Courts
9 command that Uber exercise every lawful power it has over Mr. Levandowski. Indeed, the Court
10 goes so far as to warn that, [i]n complying with this order, Uber has no excuse under the Fifth
11 Amendment to pull any punches as to Levandowski. Id. at 23 n.9 (emphasis added).
12 Unsurprisingly, despite the fact that Uber had previously accorded respect to Mr. Levandowskis
13 legal rights, the company has now heeded this Courts direct and unambiguous command by
14 threatening Mr. Levandowski with termination unless he relinquishes his Fifth Amendment
15 rights and claims of attorney-client privilege. See Yoo Letter to Levandowski, Ramsey
16 Declaration Exh. A (received May 16, 2017).
17 This Court is, unquestionably, a state actor. It acts through its power to compel private
18 parties, such as Mr. Levandowskis employer, in cases over which it presides. When a court
19 orders an employer to do everything in its power to force an employee to speak, cooperate, and
20 discard his Fifth Amendment rights, the threat of termination is not the mere discretionary choice
21 of a private employer. It is an act by the judicial branch of our federal government compelling
22 an individual to choose between preserving his livelihood and preserving his constitutional
23 rights. Nearly fifty years of Supreme Court precedent forbid the government from putting an
24 individual to such an unconstitutionally coercive choice.
25
26
1
27 Throughout this brief, reference to attorney-client privileges is used a shorthand reference to attorney-client
privilege, joint defense/common interest privilege, and work product protection.
28
2
1 In an effort to remedy this situation, and avoid the consequences of any further
2 constitutional compulsion, Mr. Levandowski respectfully moves this Court to (a) permit him to
3 intervene to protect his constitutional rights and attorney-client privilege, and (b) modify the
4 May 11, 2017 Order Granting in Part and Denying In Part Plaintiffs Motion for Provisional
5 Relief (Preliminary Injunction Order) to make clear that the Court is not ordering Uber to
6 terminate Mr. Levandowski or otherwise take adverse employment action to coerce him to waive
7 his Fifth Amendment rights and attorney-client privileges.
8 II. FACTUAL BACKGROUND
9
Waymos complaint alleges that Mr. Levandowski was involved in steal[ing] and
10
misappropriat[ing] intellectual property. See, e.g., Docket No. 23 10, 11 & p. 11 IV.D.
11
These claims conjure the threat of criminal sanction under 18 U.S.C. 1832 or other similar
12
federal or state statutes. And, indeed on May 11, 2017, the Court formally referred this case to
13
the United States Attorneys Office for investigation of possible theft of trade secrets. Docket
14
No. 428. Mr. Levandowski is faced with a clear possibility[ ] of prosecution, and his Fifth
15
Amendment privilege against self-incrimination is implicated. Doe ex rel. Rudy-Glanzer v.
16
Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000).
17
As reflected in the transcripts and pleadings listed below, Mr. Levandowski has
18
consistently and repeatedly asserted his Fifth Amendment privilege to refuse to provide
19
potentially incriminating materials or statements in connection with this litigation:
20
21 March 29, 2017: Case Management Conference before Judge Alsup, Transcript
(Docket No. 131) at 5:14-6:18, 9:16-10:1, 10:16-19 24:22-25:21, 26:18-27:2,
22
38:7-39:4.
23
April 4, 2017: Non-Party Anthony Levandowskis Motion for Modification of
24 Courts Order Dated March 16, 2017 (Docket No. 147).
25
April 6, 2017: Hearing before Judge Alsup on Motion for Modification of Courts
26 Order and Motion to Intervene, Transcript (Docket No. 169) at 4:21-6:21.
27
28
3
April 12, 2017: Hearing before Judge Alsup, Transcript (Docket No. 230) at 78:3-
1
81:9.
2
April 13, 2017: Intervenor-Appellant Anthony Levendowskis Emergency Motion
3 to Stay Pending Resolution of Appeal (USCA Case No. 17-1904 Federal Circuit,
Docket No. 2).
4
5 April 14, 2017: Intervenor-Appellant Anthony Levendowskis Reply In Support
of Emergency Motion to Stay Pending Resolution of Appeal (USCA Case No. 17-
6 1904 Federal Circuit, Docket No. 8).
7
April 14, 2017: Deposition of Anthony Levandowski.
8
April 19, 2017: Levandowskis Fifth Amendment Submission (publicly filed)
9 (Docket No. 244).
10
May 11, 2017: Levandowskis Request for Leave to File In Camera Submission
11 in Support of Opposition to Waymos Motion to Compel (Docket No. 382).
12 Throughout this litigation, Mr. Levandowski has remained an employee of Uber, and
13 Uber has not previously threatened to terminate him based on his decision to preserve his
14 constitutional rights or attorney-client privileges. See May 15, 2017 Letter from Salle Yoo to
15 Anthony Levandowski, Ramsey Declaration, Exh. A. 2 To the contrary, Uber has respected Mr.
16 Levandowskis rights and privileges. Id. at 3.
17 On May 11, 2017, the Court granted in part and denied in part Waymos motion for
18 provisional relief. Docket No. 433. This Court concluded that Mr. Levandowskis invocation of
19 his right against self-incrimination had concealed evidence from Waymo and this Court:
20 Levandowski has broadly asserted his Fifth Amendment privilege. And troves of
likely probative evidence have been concealed from Waymo under relentless
21 assertions of privilege that shroud dealings between Levandowski and defendants
in secrecy.
22
23 Id. at 18-19. The Court therefore ordered Uber to exercise the full extent of [its] corporate,
24 employment, contractual, and other authority to cause Mr. Levandowski to return allegedly
25 downloaded materials to Waymo LLC. Id. at 22-23. The Court further mandated that Uber
26
2
27 Ms. Yoos letter is dated May 15, 2017, but was not delivered to counsel for Mr. Levandowski
until May 16, 2017. Ramsey Decl. 2.
28
4
1 employ the full extent of [its] authority and influence to obtain cooperation from Mr.
2 Levandowski (among others) in a procedure to determine and set[ ] forth every person who has
3 seen or heard any part of any downloaded materials, what they saw or heard, when they saw or
4 heard it, and for what purpose. Id. at 24. The Court further ordered a detailed accounting of
5 communications with Stroz Freidberg as well as Mr. Levandowskis communications with his
6 personal counsel. Id.
7 Uber has now executed on the Courts order. Two days ago, on May 16, 2017, Uber sent
8 Mr. Levandowski a letter, demanding, inter alia, that he waive his Fifth Amendment and
9 attorney-client privileges and provide Uber with (a) written statements about the allegedly
10 downloaded materials and uses to which they may have been put; (b) oral interviews and
11 consultations about the allegedly downloaded materials and the uses to which they may have
12 been put; and (c) the allegedly downloaded materials themselves, for return to Waymo. Yoo
13 Letter to Levandowski, Ramsey Decl. Exh. A.
14 Ubers letter expressly threatens Mr. Levandowski with termination if he fails to comply
15 with these demands, and it explains Ubers understanding that the Preliminary Injunction Order
16 expressly requires Uber to take such action:
17 We understand that this letter requires you to turn over information wherever
located, including but not limited to, your personal devices, and to waive any
18 Fifth Amendment protection you may have. Also, the requirement that your
lawyers cooperate with us and turn over information that may be in their
19 possession may invade your attorney-client privilege. While we have respected
your personal liberties, it is our view that the Courts Order requires us to make
20 these demands of you. Footnote 9 of the Order specifically states that in
complying with this order, Uber has no excuse under the Fifth Amendment to pull
21 any punches as to Levandowski. (Order at 23, no. 9.) Thus, we must demand
that you set these privileges aside and confirm that you will promptly comply
22 with the Courts Order.
23 Finally, as you know, your employment at Uber is on an at-will basis. See A.
Levandowski Employment Agreement, Aug. 17, 2016 5(a) (August 17, 2016
24 Employment Agreement). As a condition of your employment at Uber, you
must comply with all of the requirements set forth in this letter. If you do not
25 agree to comply with all of the requirements set forth herein, or if you fail to
comply in a material manner, then Uber will take adverse employment action
26 against you, which may include termination of your employment and such
termination would be for Cause.
27
28
5
1 Yoo Letter to Levandowski at 3-4 (emphasis in original), Ramsey Decl. Exh. A.

2 III. MOTION TO INTERVENE
3
Mr. Levandowski is not a party to this action. He therefore moves to intervene to protect
4
his Fifth Amendment and attorney-client privileges and prevent the Court from
5
unconstitutionally forcing him to choose between his privileges and his continued employment.
6
A. Intervention as of Right
7
8 Federal Rule of Civil Procedure 24(a)(2) provides that a court must permit intervention
9 when the applicant claims an interest relating to the property or transaction that is the subject of
10 the action, and is so situated that disposing of the action may as a practical matter impair or
11 impede the movants ability to protect its interest, unless existing parties adequately represent
12 that interest. The Ninth Circuit applies
13 a four-part test under Rule 24(a): (1) the application for intervention must be
timely; (2) the applicant must have a significantly protectable interest relating to
14 the property or transaction that is the subject of the action; (3) the applicant must
be so situated that the disposition of the action may, as a practical matter, impair
15 or impede the applicants ability to protect that interest; and (4) the applicants
interest must not be adequately represented by the existing parties in the lawsuit.
16
17 Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). The four-
18 factor test is satisfied in this case.
19 Timeliness: Mr. Levandowskis motion to intervene is timely. See United States v.
20 Oregon, 745 F.2d 550 (9th Cir. 1984) (stating that the timeliness requirement for intervention as
21 of right should be treated more leniently than for permissive intervention because of the
22 likelihood of more serious harm and citing cases for the proposition that the timeliness inquiry
23 should be construed favorably to the intervenor). The Preliminary Injunction Order was filed
24 publicly on May 15, 2017, see Docket No. 433, and Uber delivered its letter executing the
25 Courts order the next day, see Ramsey Decl. 2. The Courts order requires Uber to comply
26 with various provisions by May 31 and June 23, 2017, respectively, Docket No. 433 at 22-26,
27
28
6
1 and Ubers letter seeks Mr. Levandowskis compliance with its various demands by May 22 or
2 24, 2017, Yoo Letter to Levandowski at 3-4, Ramsey Decl. Exh. A.
3 Protectable Interest: [T]he interest test is primarily a practical guide to disposing of
4 lawsuits, and Rule 24(a) should be given a liberal construction in favor of applications for
5 intervention. Waller v. Financial Corp. of Am., 828 F.2d 579, 582 (9th Cir. 1987) (quotation
6 marks omitted); see also Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th
7 Cir. 2001).
8 Furthermore, Mr. Levandowskis interest in protecting his Fifth Amendment and
9 attorney-client privileges is precisely the type of interest that gives rise to mandatory intervention
10 under Rule 24(a). Intervention is mandated under the rule when the applicant seeks to protect a
11 privilege. See, e.g., In re Grand Jury Subpoena (Newparent, Inc.), 274 F.3d 563, 570 (1st Cir.
12 2001) (Colorable claims of attorney-client and work product privilege [are] . . . a textbook
13 example of an entitlement to intervention as of right.); In re Grand Jury Proceedings, 735 F.2d
14 1330, 1331 (11th Cir. 1984) (reversing denial of intervention where an applicant sought to
15 intervene to protect his attorney-client privilege); American Tel. & Tel., 642 F.2d at 1292
16 (finding that protecting the work product privilege is a sufficient interest to mandate
17 intervention); Sackman v. Liggett Group, 167 F.R.D. 6, 20-21 (E.D.N.Y. 1996) (granting
18 intervention by applicants who sought to protect a joint-defense privilege). That rule applies
19 with equal force in situations in which the applicant, like Mr. Levandowski, seeks to protect his
20 Fifth Amendment privilege against self-incrimination. See In re Katz, 623 F.2d 122, 125-26
21 (2nd Cir. 1980) (reversing the denial of intervention in a case in which the applicants attorney
22 had received a grand jury subpoena, and the applicant sought to assert pursuant to Fisher v.
23 United States, 425 U.S. 391 (1975) his Fifth Amendment and attorney-client privileges over
24 documents in the attorneys possession).
25 Impediment to Mr. Levandowskis Ability to Protect His Interest: Relatedly, the Courts
26 Preliminary Injunction Order may impair or impede [Mr. Levandowski]s ability to protect his
27 privileges. See In re Grand Jury Subpoena (Newparent, Inc.), 274 F.3d at 570; In re Grand Jury
28
7
1 Proceedings, 735 F.2d at 1331; American Tel. & Tel., 642 F.2d at 1292; In re Katz, 623 F.2d at
2 125-26; Sackman v. Liggett Group, 167 F.R.D. at 20-21. Without intervention, Uber will be
3 required to execute the unconstitutional threat presenting Mr. Levandowski with the untenable
4 Hobsons choice: either waive the Fifth Amendment and attorney-client privileges or lose your
5 job. And without this opportunity to seek the requested relief, Mr. Levandowski will have no
6 practical way to protect his interests and privilegeseither he accepts the rock of termination,
7 or the whirlpool of possible self-incrimination and waiver of attorney-client privileges.
8 No Adequate Protection by Existing Parties: It is obvious that the parties to this action
9 cannot be expected to adequately protect Mr. Levandowskis interests. Indeed, rather than resist
10 the Courts order, Uber has already sent Mr. Levandowski a letter executing the order and
11 demanding that Mr. Levandowski waive his privileges or face termination. See Yoo Letter to
12 Levandowski, Ramsey Decl. Exh A.
13 B. Permissive Intervention
14
In the alternative, the Court should grant intervention under Federal Rule of Civil
15
Procedure 24(b). The district court has the discretion to grant permissive intervention where the
16
intervenors claim . . . and the main action have a question of law or fact in common.
17
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002). The rule is liberal:
18
If there is a common question of law or fact, the requirement of the rule has been satisfied and it
19
is then discretionary with the court whether to allow intervention. Id. at 1109 (quoting 7C
20
Wright, Miller & Kane, Federal Practice and Procedure 1911, 357-63 (2d ed. 1986)). Courts
21
will grant permissive intervention where a non-party like Mr. Levandowski seeks to oppose
22
production of materials subject to a claim of privilege. See, e.g., Convertino v. United States
23
DOJ, 674 F. Supp. 2d 97, 109 (D.D.C. 2009) (Without the right to intervene in discovery
24
proceedings, a third party with a claim of privilege in otherwise discoverable materials could
25
suffer the obvious injustice of having his claim erased or impaired by the court's adjudication
26
without ever being heard.). Further, the grant of permissive intervention will protect Mr.
27
28
8
1 Levandowskis right to appeal orders of this Court: An intervenor may appeal from all
2 interlocutory and final orders that affect him . . . whether the right under which he intervened
3 was originally absolute or discretionary. Stringfellow v. Concerned Neighbors in Action, 480
4 U.S. 370, 376 (1987) (quoting Moore & J. Kennedy, Moores Federal Practice para. 24-15, pp.
5 24-169-24-170 (2d ed. 1985)).
6 Because Mr. Levandowski seeks to protect his constitutional rights, and no other party
7 will carry that burden, Mr. Levandowski must be permitted to intervene.
8 IV. THE COURT MUST MODIFY ITS ORDER TO AVOID VIOLATING MR.
9 LEVANDOWSKIS FIFTH AMENDMENT RIGHTS
10
By forcing Mr. Levandowski to choose between his Fifth Amendment right against self-
11
incrimination and his employment at Uber, the Courts May 11, 2017 order violates the
12
constitutional principles expressed in Garrity v. New Jersey and its progeny. The Court must
13
modify the order to relieve Mr. Levandowski of this unconstitutional choice between the rock
14
and the whirlpool.
15
We respectfully request that the Court remove from the Preliminary Injunction Order
16
language that compels Uber to terminate Mr. Levandowski or otherwise threaten Mr.
17
Levandowski with adverse employment action if he continues to invoke his Fifth Amendment
18
privilege and/or seeks to preserve his attorney-client privilege. Specifically, we ask the Court to
19
withdraw the following mandates:
20
The directive that Uber must immediately and in writing exercise the full extent of
21
their corporate, employment, contractual, and other authority. Docket No. 433 at 23:
22
1-3.
23
The directive that Uber do whatever it can, such as threaten Levandowski with
24
termination, to induce Mr. Levandowskis compliance. Id. at 23 n. 9.
25
The directive that Uber refrain from pull[ing] any punches as to Levandowski. Id.
26
The directive that Defendants accounting shall include all persons who fit the
27
28
9
1 foregoing description, including Levandowski and his separate counsel. Id. at 24:
2 12-14.
3 The directive that Defendants must also use the full extent of their authority and
4 influence to obtain cooperation with the foregoing procedure from all involved. Id.
5 at 24:22-25.
6 The directive that Defendants give a detailed accounting of conversations and
7 disclosures to Stroz Freidberg, communications between Mr. Levandowski and his
8 personal counsel, and/or communications between Mr. Levandowskis personal
9 counsel and Uber that are subject to attorney-client privileges. Id. at 24:3-8; 24:12-
10 14.
11 A. Supreme Court Precedent Prohibits the Government from Attempting to
12 Overcome an Individuals Fifth Amendment Privilege by Threatening to Fire Him
13 A central tenet of our democracy for more than four hundred years, the Fifth Amendment
14 enshrines the fundamental guarantee that the state may not force an individual to incriminate
15 himself. Garrity, 385 U.S. at 500; see also Quinn v. United States, 349 U.S. 155, 161 (1955);
16 United States v. Bright, 596 F.3d 683, 692 (9th Cir. 2010). [A]ny compulsory discovery by
17 extorting the partys oath . . . to convict him of crime. . . is contrary to the principles of a free
18 government. . . . It may suit the purposes of despotic power, but it cannot abide the pure
19 atmosphere of political liberty and personal freedom. Malloy v. Hogan, 378 U.S. 1, 9 n.7
20 (1964). Given its central importance to our criminal justice system, [t]his provision of the
21 [Fifth] Amendment must be accorded liberal construction in favor of the right it was intended to
22 secure. Hoffman v. United States, 341 U.S. 479, 486 (1951).
23 In Garrity, the Supreme Court held that the government may not compel an individual to
24 choose between self-incrimination or job forfeiture. 385 U.S. at 497, 500. The Garrity Court
25 recognized that when the government presents an individual with a choice between the rock and
26 the whirlpool of either waiving his Fifth Amendment or losing his livelihood, the government
27 has exacted such a high price for the exercise of the Fifth Amendment that the resulting
28
10
1 statements are deemed to be constitutionally compelled. 385 U.S. at 497-98; see also Lefkowitz
2 v. Cunningham, 431 U.S. 801, 806 (1977) (stating that, under Garrity and its progeny, the
3 government cannot penalize assertion of the constitutional privilege against compelled self-
4 incrimination by imposing sanctions to compel testimony). When the government attempts to
5 induce an individual to waive his Fifth Amendment privilege by threatening the loss of
6 employment, any waiver is considered compelled, the government is prohibited from employing
7 such compulsion. Id. at 500; see also, e.g., Minnesota v. Murphy, 465 U.S. 420, 434-35 (1984);
8 Uniformed Sanitation Men Assn v. Commr of Sanitation, 392 U.S. 280, 282-83 (1968); United
9 States v. Goodpaster, 65 F. Supp. 3rd 1016, 1024 (D. Or. 2014).
10 B. The Courts Order That Uber Must Threaten Mr. Levandowski with
11 Termination and Its Subsequent Execution by Uber is Unconstitutional
12 Government Action
13 Two days ago, in an effort to comply with this Courts Preliminary Injunction Order,
14 Uber, by letter, threatened Mr. Levandowski with termination if he does not waive his Fifth
15 Amendment and attorney-client privileges. Yoo Letter to Levandowski, Ramsey Decl. Exh. A.
16 The only question is whether that attempted compulsion is a product of government action. See,
17 e.g., Luna v. Massachusetts, 354 F.3d 108, 111-12 (1st Cir. 2004). Given the plain language of
18 the Courts order, the question answers itself this is government action, not private action.
19 This Court is a body of the federal government. U.S. CONST. art. III 1. And, put
20 simply, the Courts Preliminary Injunction Order initiated the threat against Mr. Levandowskis
21 employment, which a private party simply carried out. A federal court has no contractual power
22 to terminate a private employee. But it has the power of compulsion, backed by contempt. In
23 delivering the threat to Mr. Levandowskis employment, Uber merely acted as an instrumentality
24 of the Courts own command. State action jurisprudence should persuade the Court to recognize
25 that the threat originated from the Court itself, a government entity.
26 Courts have articulated various tests to determine when facially private action in fact
27 constitutes state action for legal purposes. See Johnson v. Knowles, 113 F.3d 1114, 1118 (9th
28
11
1 Cir. 1997) (The Supreme Court has articulated four distinct tests for determining when the
2 actions of a private individual amount to state action: (1) the public function test; (2) the joint
3 action test; (3) the state compulsion test; and (4) the governmental nexus test.). The most
4 clearly applicable test in this case is the state compulsion test. Under that test, state action may
5 be found when the government has exercised coercive power or has provided such significant
6 encouragement, either overt or covert, that the [private actors] choice must in law be deemed to
7 be that of the State. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); see also Peterson v. City of
8 Greenville, 373 U.S. 244, 247-48 (1963); United States v. Stein, 541 F.3d 130, 147 (2nd Cir.
9 2008); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 836-37 (9th Cir. 1999);
10 Johnson, 113 F.3d at 1118.
11 Here, the Court has coerced the threat to Mr. Levandowskis employment or, at the
12 very least, provided . . . significant encouragement to that threat. Blum, 457 U.S. at 1004. As
13 noted above, prior to the Courts order, Mr. Levandowski had remained employed at Uber
14 without experiencing any threat to his employment or other coercion by Uber to relinquish his
15 Fifth Amendment or attorney-client privileges.
16 The Preliminary Injunction Order expressly requires Uber to force Mr. Levandowski to
17 choose between his Fifth Amendment and attorney-client privileges and his employment.
18 Docket No. 433 at 22-26. The Court mandated that Uber exercise the full extent of [its]
19 corporate, employment, contractual, and other authority to cause Anthony Levandowski to
20 return the allegedly downloaded materials to Waymo LLC. Id. at 22-23. The Court also
21 ordered that Uber employ the full extent of [its] authority and influence to obtain cooperation
22 from Mr. Levandowski (among others) with a procedure to determine and set[ ] forth every
23 person who has seen or heard any part of any downloaded materials, what they saw or heard,
24 when they saw or heard it, and for what purpose. Id. at 24. Removing any doubt about the
25 thrust of these requirements, in footnote 9, the Court explicitly addressed the possibility that Mr.
26 Levandowskis employment would be threatened, and stated that Uber has no excuse . . . to pull
27 any punches as to Levandowski. Id. at 23 n.9.
28
12
1 Responding to an earlier argument from Uber referencing the Glanzer case, the Court in
2 that same footnote rejected the suggestion that a private employer is prohibited from pressuring
3 its own employee to waive his Fifth Amendment rights:
4 Perhaps defendants mean to suggest that Uber cannot use any employer authority
to pressure Levandowski to produce the 14,000-plus downloaded files. If so, the
5 suggestion is baseless. Glanzer produced the foregoing quote as an example of
how certain sanctions stemming from a partys refusal to answer a question on
6 Fifth Amendment grounds are too costly. This order, however, threatens no
sanctions against Levandowski. It simply directs Uber, a private employer, to do
7 whatever it can to ensure that its employees return 14,000-plus pilfered files to
their rightful owner. If Uber were to threaten Levandowski with termination for
8 noncompliance, that threat would be backed up by only Ubers power as a private
employer, and Levandowski would remain free to forfeit his private employment
9 to preserve his Fifth Amendment privilege. No binding case law holds that the
Fifth Amendment prohibits such actions by private employers. In short, in
10 complying with this order, Uber has no excuse under the Fifth Amendment to pull
any punches as to Levandowski.
11
12 Id. (emphasis added).
13 But Mr. Levandowski does not contend that the Fifth Amendment would bar adverse
14 action from a private employer when that action is the product of purely private discretion,
15 untainted by government coercion. That is plainly not the case here, however, as Uber
16 threatened no adverse employment action until the Court explicitly ordered Uber to exercise the
17 full extent of its corporate, employment, and contractual powers and influence to induce Mr.
18 Levandowskis cooperation (and the attendant waivers of his Fifth Amendment and other
19 privileges). The Courts order, as written, requires Uber to threaten Mr. Levandowskis
20 employment because that unique power is among the things that are within the full extent of
21 Ubers authority, and because it is precisely the type of punch that the Court warned Uber not
22 to pull. Docket No. 433 at 23-24 & n.9. Under the current language of the Courts order, Uber
23 could be held in contempt of court for doing anything short of firing Mr. Levandowski if he does
24 not relinquish his rights within a matter of just a few short weeks. Indeed, Uber wrote in its
25 letter that it believed the Court was explicitly ordering it to issue this threat to Mr.
26 Levandowskis employment. Yoo Letter to Levandowski at 3-4, Ramsey Decl. Exh A.
27
28
13
1 In short, the Preliminary Injunction Order is not a mere acknowledgment of a private

2 employers separate zone of discretion; it is an explicit command to a private employer to fire
3 every bullet it hasup to and including terminationto force an employee to forego
4 fundamental individual rights that the law and our Constitution guarantee. And through its
5 power to hold Uber in contempt, the Court has coerced or, at minimum, strongly encouraged
6 Uber to threaten Mr. Levandowskis employment. The Hobsons choice that Mr.
7 Levandowski now faces is a direct product of government action.
8 The case of United States v. Stein, 541 F.3d 130, 147 (2nd Cir. 2008), which arose from
9 the criminal investigation of KPMG, is illustrative of the ways in which more subtle government
10 statements can operate to compel the actions of private entities and violate the rights of
11 individual employees. In Stein, which involved a Sixth Amendment claim, the Second Circuit
12 affirmed a finding of coercionand thus state actionwhere KPMG had refused to pay for
13 indicted former employees attorneys as a result of a Department of Justice memorandum that
14 directed prosecutors to consider a companys advancement of legal fees as a factor in
15 determining whether to indict the company, and the prosecutors references to this memorandum
16 during negotiations with the company. 541 F.3d at 146-51. The Courts Order to Uber in this
17 case, of course, is far more direct and unambiguous than the governments conduct at issue in
18 Stein.
19 It must also be emphasized that Ubers letter seeks statements and materials beyond
20 words out of Mr. Levandowskis own mouth, but also from his personal attorneys. The letter
21 requires Mr. Levandowski on pain of termination to [i]nstruct all your personal attorneys
22 to cooperate with us in this same investigation and to share any relevant information they have
23 with us. Yoo Letter to Levandowski at 3, Ramsey Decl. Exh. A. This provision apparently
24 responds to the Courts order that Defendants accounting shall not be limited to Uber but shall
25 include all persons who fit the foregoing description, including Levandowski and his separate
26 counsel, Docket No. 433 at 24 (emphasis added), although it appears that the Courts order is
27
28
14
1 only intended to require Uber to state which people have seen or heard any part of any
2 downloaded materials . . . . including . . . separate counsel. Id.
3 The Courts requirement to collect information from Mr. Levandowskis counsel, as well
4 as consultants working for legal counsel, also crosses into constitutionally improper compulsion.
5 Materials and information in the possession of counsel are protected by Mr. Levandowskis Fifth
6 Amendment privilege. United States v. Sideman & Bancroft, LLP, 704 F.3d 1197, 1201 (9th Cir.
7 2013) (stating that the Fifth Amendment protection against the compelled disclosure of records
8 extends to prevent an individuals attorney from being compelled to produce documents if that
9 production would violate the individuals Fifth Amendment rights). Moreover, the fundamental
10 principle of Garrity and its progeny, although addressed by its terms to coerced waiver of
11 constitutional rights, applies with equal force when the government seeks improperly to compel
12 an individual to waive his attorney-client privilege.
13 Instructive in this regard is Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (en banc),
14 in which the Ninth Circuit considered the dilemma faced by a habeas petitioner alleging that his
15 state trial counsel was constitutionally ineffective. The court sought to avoid imposing on the
16 petitioner the painful choice of, on the one hand, asserting his ineffective assistance claim and
17 risking a [re-]trial where the prosecution can use against him every statement he made to his first
18 lawyer and, on the other hand, retaining the privilege but giving up his ineffective assistance
19 claim. Id. at 723. Relying in part on Simmons v. United States, 390 U.S. 377 (1968), in which
20 the Supreme Court held that a criminal defendant must be relieved of the Hobsons choice
21 between waiving his Fifth Amendment privilege against self-incrimination and his right to
22 pursue the exclusion of evidence under the Fourth Amendment, id. at 393-94, the Bittaker court
23 ruled that federal courts are required to enter protective orders in habeas cases precluding use of
24 the privileged materials for any purpose other than litigating the federal habeas petition. 331
25 F.3d at 717, 723, 728. A critical lesson in Bittaker is that a district court must take affirmative
26 steps to avoid, to the maximum extent possible, a situation in which an individual is forced to
27
28
15
1 choose between preserving his attorney-client privilege and vindicating some other important
2 right or privilege.
3 C. The Court Should Modify its Order
4
Because the Courts order unconstitutionally requires Mr. Levandowski to choose
5
between his Fifth Amendment and attorney-client privileges and his employment, it must be
6
amended. We ask this Court to modify its order to clarify that Uber is not required to fire Mr.
7
Levandowski, nor take any adverse employment action against him, if he refuses to provide
8
documents, physical materials, or oral or written statements on the grounds that doing so would
9
violate his Fifth Amendment or attorney-client, work product, or common interest privileges.
10
11
12
Date: May 18, 2017 Respectfully submitted,
13
14 /s/ Ismail J. Ramsey
15 Miles Ehrlich
Ismail Ramsey
16 Amy Craig
Ramsey & Ehrlich
17
Counsel for Non-Party
18 Anthony Levandowski
19
20
21
22
23
24
25
26
27
28
16
Case 3:17-cv-00939-WHA Document 466-1 Filed 05/18/17 Page 1 of 2
1 MILES EHRLICH (Bar No. 237954)

miles@ramsey-ehrlich.com
2 ISMAIL RAMSEY (Bar No. 189820)
izzy@ramsey-ehrlich.com
3 RAMSEY & EHRLICH LLP
803 Hearst Avenue
4 Berkeley, CA 94710
(510) 548-3600 (Tel)
5 (510) 291-3060 (Fax)
6
Attorneys for Intervenor Anthony Levandowski
7
8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO DIVISION
11 WAYMO LLC, ) Case No.: 3:17-cv-00939 WHA
)
12 )
Plaintiff, ) DECLARATION OF ISMAIL J.
13 ) RAMSEY IN SUPPORT OF NON-
v.
) PARTY ANTHONY LEVANDOWSKIS
14 ) MOTION TO MODIFY THIS COURTS
UBER TECHNOLOGIES, INC., et al., ) MAY 11, 2017 ORDER GRANTING IN
15 ) PART AND DENYING IN PART
Defendants. ) PLAINTIFFS MOTION FOR
16 ) PROVISIONAL RELIEF
)
17 )
)
18 )
19
20
21
22
23
24
25
26
27
28
DECLARATION OF ISMAIL J. RAMSEY

Case No. 3:17-cv-00939 WHA
1 I, Ismail J. Ramsey, declare and affirm as follows:

2 1. I am a partner at Ramsey & Ehrlich LLP and am a member of the Bar of the State
3 of California. I am counsel of record in the above-captioned action for non-party Anthony
4 Levandowski. I make this declaration in support of Non-Party Anthony Levandowskis Motion
5 to Modify This Courts May 11, 2017 Order Granting in Part and Denying in Part Plaintiffs
6 Motion For Provisional Relief. I have personal knowledge of the matters stated herein and could
7 and would competently testify thereto if called upon to do so.
8 2. Attached as Exhibit A to this declaration is a true and correct copy of a letter, dated
9 May 15, 2017, that was emailed from Ubers legal department to Mr. Levandowski and his
10 counsel on the afternoon of May 16, 2017.
11
12 This declaration is made under penalty of perjury under the laws of the United States on
13 May 18, 2017.
14
/s/ Ismail J. Ramsey
15
Ismail J. Ramsey
16
17
18
19
20
21
22
23
24
25
26
27
28
1
DECLARATION OF ISMAIL J. RAMSEY
Case No. 3:17-cv-00939 WHA
DocuSign Envelope ID: D180681E-FCBC-4638-8269-BE6ECAFD2E92
May 15, 2017
Via Federal Express and Email
Mr. Anthony Levandowski

c/o Ismail Ramsey, Esq.
Miles Erlich, Esq.
Ramsey & Erlich LLP
Berkeley, CA 94710
Re: Waymo LLC v. Uber Technologies, Inc. et al., Case No. C 17-00939 WHA
Dear Anthony:
As you know, an order was issued on May 11, 2017 (the Order), by the United States
District Court Judge overseeing the lawsuit brought by Waymo LLC (Waymo) against Uber
Technologies, Inc. (Uber), Ottomotto LLC, and Otto Trucking, LLC (collectively,
Defendants). A copy of that Order is attached to this letter.
In general, Defendants have been ordered to take a number of immediate steps with
respect to your employment at Uber and with respect to all files, if any, that Waymo claims you
downloaded prior to leaving your employment at Google. Uber takes it obligations under the
Order very seriously, intends to comply fully, and expects you to do the same.1
First, in accordance with paragraph 3 of the Order, this letter confirms what was already
decided on April 27, 2017: you are completely removed and recused from any role or
responsibility pertaining to LiDAR at Uber. See Order at 23 3(a). This action now has the
force of a Court order, not just a voluntary decision by you and Uber. You should therefore
understand that under penalty of contempt of court you are prohibited from any action that
involves any role, responsibility, communication, or contact of any kind with Ubers LiDAR
efforts. You are likewise prohibited from having any communication about LiDAR or anything
related to the subject of LiDAR with any officer, director, employee, agent, supplier, consultant,
or customer of Uber. See id. 3(b). This prohibition includes both written and oral
communications, and includes even highly generalized statements, if those generalized
statements could be construed as related to LiDAR. Uber is required to take all steps in its
power to ensure compliance with these prohibitions. Accordingly, you are hereby prohibited
from using any laptop, tablet, computer, cell phone, or other electronic device that is not owned
by Uber in connection with any and all employment activities at Uber, unless you agree that
Uber can search any such device to ensure compliance with the Order. Otherwise, you may only
perform Uber-related work on Uber-owned electronic devices. Please note that we will monitor
1
As you know, Ottomotto LLC is now part of Uber, and therefore all references to Uber in this
letter encompass both Uber and Ottomotto. We expect counsel for Otto Trucking LLC will
separately be addressing with you how it intends to comply with the Order.
1
any and all documents and communications you have to ensure your compliance with the Order
and the provisions of this letter.
Second, Uber has been ordered to exercise the full extent of [its] corporate, employment,
contractual, and other authority to (a) prevent Anthony Levandowski and all other officers,
directors, employees, and agents of defendants from consulting, copying, or otherwise using the
downloaded materials; and (b) cause them to return the downloaded materials and all copies,
excerpts, and summaries thereof to Waymo (or the Court) by MAY 31 AT NOON. See Order at
23 2. The term downloaded materials means any and all materials that Anthony
Levandowski downloaded from Waymo and kept upon leaving Waymos employment,
regardless of how long he kept them for and whether or not any such materials qualify as trade
secrets or proprietary or confidential information. Id. at 1. You should understand
downloaded materials to include all copies, excerpts, and summaries thereof, whether in your
possession or in the possession of (a) Stroz Friedberg LLC, (b) any attorney who has represented
you for any reason, and/or (c) any other person to whom you ever sent or gave downloaded
materials. See id. & 24 4.
To comply with these provisions, you must do the following:
If you deny ever having taken any downloaded materials from Google, you must
attest to that fact fully and completely in a written statement and provide that
statement to the Uber legal department.
If you are unable to unequivocally deny ever having taken any downloaded materials
from Google, you must immediately:
o Provide to our outside counsel at Morrison & Foerster, who will provide them
to Waymos lawyers or to the Court, any downloaded materials in your
possession (and not keep any copies thereof).
o Instruct every person that you have reason to believe may be in possession of
any downloaded materials to provide those files to our outside counsel at
Morrison & Foerster, who will provide them to Waymos lawyers or the Court
(and not to keep any copies thereof).
o If you or anyone else has destroyed any downloaded materials, you must attest
to those facts fully and completely in a written statement and provide that
statement to the Uber legal department.
In addition, this letter confirms that you are (and always have been) prohibited from
consulting, copying, or otherwise using any downloaded materials for any reason or purpose
whatsoever, including, without limitation, any activities undertaken with respect to your
employment at Uber. See id. at 23 2(a) & 3(c).
2
We are required to return any downloaded materials to the Court or Waymo by May 31,
2017. To ensure that deadline is met, we need confirmation of your complete compliance with
the foregoing requirements by no later than May 24, 2017.
Third, the Court has ordered us to conduct a thorough and complete investigation
pertaining to the downloaded materials, to be completed by June 23, 2017. See id. at 24 4.
This accounting is an extremely extensive and onerous requirement that requires maximum
cooperation and effort by all involved. Accordingly, you must do the following:
(a) Make yourself immediately and continuously available at any point from now until at
least June 23, 2017, upon our request or our attorneys request, to assist in this
investigation and to provide full interviews and consultations as needed to identify all
of the information required by the Court.
(b) Instruct all your personal attorneys to cooperate with us in this same investigation and
to share any relevant information they have with us.
(c) If you have not fully complied with our prior request to return all Uber-owned
documents in your possession, custody, or control, you must immediately return all
such documents to us.
(d) Provide us with a list of every person to whom you ever sent or gave any downloaded
material, or excerpts, summaries, or copies thereof, the date on which you sent or
gave such person such downloaded material.
(e) Provide us a list of every person, including employees, officers, directors, agents,
suppliers, customers, or consultants -- associated with Uber or Otto with whom you
communicated on the subject of LiDAR. If you possess any notes or records
referencing the communication, provide us with copies of those notes or records, as
well.
Given the June 23 deadline for our accounting, we must have your compliance with the
foregoing beginning immediately, and we expect that your provision of the information
described above will be substantially complete within one week of your receipt of this letter.
We understand that this letter requires you to turn over information wherever located,
including but not limited to, your personal devices, and to waive any Fifth Amendment
protection you may have. Also, the requirement that your lawyers cooperate with us and turn
over information that may be in their possession may invade your attorney-client privilege.
While we have respected your personal liberties, it is our view that the Courts Order requires us
to make these demands of you. Footnote 9 of the Order specifically states that in complying
with this order, Uber has no excuse under the Fifth Amendment to pull any punches as to
Levandowski. (Order at 23, no. 9.) Thus, we must demand that you set these privileges aside
and confirm that you will promptly comply with the Courts Order.
3
Finally, as you know, your employment at Uber is on an at-will basis. See A.

Levandowski Employment Agreement, Aug. 17, 2016 5(a) (August 17, 2016 Employment
Agreement). As a condition of your employment at Uber, you must comply with all of the
requirements set forth in this letter. If you do not agree to comply with all of the requirements
set forth herein, or if you fail to comply in a material manner, then Uber will take adverse
employment action against you, which may include termination of your employment and such
termination would be for Cause.
If you comply with these requirements, your employment at Uber will continue on an at-
will basis. For the avoidance of doubt, Uber retains the sole right to determine whether you are
in compliance with the requirements set forth above.
We continue to believe that no Waymo trade secrets have ever been used in the
development of our self-driving technology, and we remain confident that we will prove that fact
in due course. Until then, we insist that you do everything in your power to assist us in
complying with the Order.
Very truly yours,
Uber Technologies, Inc.
______________________________
By: Salle Yoo
General Counsel
cc: Travis Kalanick
Enclosures: May 11, 2017 Order (public version)
4
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
SAN FRANCISCO DIVISION
6
7
WAYMO LLC, ) Case No.: 3:17-cv-00939-WHA
8 )
)
9 Plaintiff, ) [PROPOSED] ORDER GRANTING
v. ) NON-PARTY ANTHONY
10 ) LEVANDOWSKIS MOTION FOR
) INTERVENTION AND
11 UBER TECHNOLOGIES, INC., et al., ) MODIFICATION OF MAY 11, 2017
) ORDER GRANTING IN PART AND
12 Defendants. ) DENYING IN PART PROVISIONAL
) RELIEF
13 )
)
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING NON-PARTY ANTHONY LEVANDOWSKIS MOTION FOR INTERVENTION AND
MODIFICATION OF ORDER GRANTING IN PART AND DENYING IN PART PROVISIONAL RELIEF (DKT. #433)
1 Upon consideration of Non-Party Anthony Levandowskis Motion for Intervention and

2 Modification of May 11, 2017 Order Granting In Part and Denying in Part Provisional Relief
3 (publicly filed on May 15, 2017, Docket No. 433), this Court hereby:
4
5 1. GRANTS Non-Party Anthony Levandowskis Motion for Intervention under Federal
6 Rule of Civil Procedure 24, for the limited purpose of allowing Mr. Levandowski to
7 fully litigate his Motion for Modification of the Courts May 11, 2017 Order Granting
8 in Part and Denying in Part Provisional Relief (Docket No. 433), and
9
10 2. GRANTS Non-Party Anthony Levandowskis Motion to Modify the Courts Order
11 Granting in Part and Denying in Part Provisional Relief (Docket No. 433) by hereby
12 ORDERING that Uber is NOT REQUIRED by the Courts Order to terminate Mr.
13 Levandowski or otherwise coerce Mr. Levandowski through adverse employment
14 action if he continues to invoke his Fifth Amendment privilege and/or seeks to
15 preserve his attorney-client privilege, common interest privilege, or work production
16 protection.
17
18 IT IS SO ORDERED.
19
20 Dated: _________________, 2017 ________________________________
HONORABLE WILLIAM H. ALSUP
21
United States District Court Judge
22
23
24
25
26
27
28
1
[PROPOSED] ORDER GRANTING NON-PARTY ANTHONY LEVANDOWSKIS MOTION FOR INTERVENTION AND
MODIFICATION OF ORDER GRANTING IN PART AND DENYING IN PART PROVISIONAL RELIEF (DKT. #433)

Levandowsk Motion and Yoo Letter

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Levandowsk Motion and Yoo Letter

Transféré par

Droits d'auteur :

Formats disponibles

Case 3:17-cv-00939-WHA Document 466 Filed 05/18/17 Page 1 of 21

1 MILES EHRLICH (Bar No. 237954)

1 MOTION FOR INTERVENTION AND MODIFICATION OF MAY 11, 2017 ORDER

16 Levandowskis rights and privileges. Id. at 3.

1 Yoo Letter to Levandowski at 3-4 (emphasis in original), Ramsey Decl. Exh. A.

12 that interest. The Ninth Circuit applies

18 factor test is satisfied in this case.

19 Timeliness: Mr. Levandowskis motion to intervene is timely. See United States v.

1 In short, the Preliminary Injunction Order is not a mere acknowledgment of a private

1 MILES EHRLICH (Bar No. 237954)

DECLARATION OF ISMAIL J. RAMSEY

1 I, Ismail J. Ramsey, declare and affirm as follows:

May 15, 2017

Via Federal Express and Email

Mr. Anthony Levandowski

To comply with these provisions, you must do the following:

Finally, as you know, your employment at Uber is on an at-will basis. See A.

Very truly yours,

Uber Technologies, Inc.

cc: Travis Kalanick

Enclosures: May 11, 2017 Order (public version)

1 Upon consideration of Non-Party Anthony Levandowskis Motion for Intervention and

Vous aimerez peut-être aussi