Writing for Corporate Counsel, Eric Fishman and Ross Bagley of Pryor Cashman's Litigation Group assessed the impact of the California federal court's recent decision in Waymo v. Uber Technologies. In that closely-followed case, Google affiliate Waymo alleged that one of Uber's engineers, Anthony Levandowski, misappropriated trade secrets related to Waymo's driverless car technology, then formed his own company, Ottomotto, which he later sold to Uber.
As part of its due diligence before acquiring Ottomotto, Uber agreed to have an outside forensic expert investigate whether current Ottomotto employees who had come from Waymo, including Levandowski, had misappropriated any of Waymo's intellectual property. Once completed, the investigator's report was circulated to Uber, Ottomotto and counsel for the investigated Ottomotto employees.
In the trade secret litigation that followed, Uber refused to turn over the investigator's report, citing work product and attorney-client privilege. In response, Waymo moved to compel production of the report.
"The magistrate judge for the Northern District of California rejected Uber's assertion of the privilege over communications between Ottomotto and Uber prior to the acquisition, finding that the at the time the report was circulated Uber and Ottomotto were on opposite sides of a transaction and were therefore adverse, despite the acquisition's eventual consummation," Fishman and Bagley wrote. The court explained that two clients represented by separate counsel do not create an attorney-client relationship by jointly retaining an agent.
Additionally, the court rejected Uber and Levandowski's contention that communications between them, Ottomotto and the investigator, as Uber's and Ottomotto's agent, were protected by the common-interest doctrine, reasoning that because the common-interest doctrine is actually an anti-waiver exception, it only applies when an initially protected attorney-client communication is shared with a third party.
Read the full analysis of this case in Corporate Counsel.
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