from the United States District Court for the Northern
District of California in No. 3:17-cv-00939-WHA, Judge
William H. Alsup.
Charles Kramer Verhoeven, Quinn Emanuel Ur-quhart &
Sullivan, LLP, San Francisco, CA, argued for
plaintiff-appellee. Also represented by David Andrew Perlson;
David Michael Cooper, New York, NY.
Ehrlich, Ramsey & Ehrlich LLP, Berkeley, CA, argued for
intervenor-appellant. Also represented by Ismail Ramsey, Amy
Newman, Wallach, and Stoll, Circuit Judges.
Wallach, Circuit Judge.
Anthony Levandowski, an intervenor, seeks to prevent
discovery sought by Appellee Waymo LLC
("Waymo"). Waymo sued Uber Technologies, Inc.
("Ub-er"), Ottomotto LLC, and Otto Trucking LLC
(together, "Ottomotto") in the U.S. District Court
for the Northern District of California ("District
Court") alleging, inter alia, claims of patent
infringement and violations of federal and state trade secret
laws. Specifically, Waymo alleges that its former employee,
Mr. Levandowski, improperly downloaded thousands of documents
related to Waymo's driverless vehicle technology and then
left Waymo to found Ottomotto, which Uber subsequently
acquired. Before the acquisition closed, counsel for
Ottomotto and Uber (but not counsel for Mr. Levandowski)
jointly retained Stroz Friedberg, LLC ("Stroz") to
investigate Ottomotto employees previously employed by Waymo,
including Mr. Levandowski. The resulting report ("the
Stroz Report") is the subject of the discovery dispute
at issue on this appeal.
discovery, Waymo sought to obtain the Stroz Report using two
separate mechanisms. First, Waymo filed a motion to compel
Uber and Ottomotto to produce the Stroz Report.
Appellant's App. 62. Magistrate Judge Jacqueline Scott
Corley granted Waymo's Motion to Compel. See Waymo
LLC v. Uber Techs., Inc. (Waymo I), No.
17-cv-00939-WHA (JSC), 2017 WL 2485382, at *1 (N.D. Cal. June
8, 2017). Second, Waymo subpoenaed Stroz to obtain the Stroz
Report along with the communications, documents, and devices
provided to Stroz. Appellant's App. 141-42. When Mr.
Levandowski, Ottomotto, and Uber moved to quash the subpoena
by arguing that the Stroz Report is subject to
attorney-client privilege or attorney work-product
protection, the Magistrate Judge denied the motion to quash.
See Waymo LLC v. Uber Techs., Inc. (Waymo
II), No. 17-cv-00939-WHA (JSC), 2017 WL 2676424, at *1,
*7 (N.D. Cal. June 21, 2017). Mr. Levandowski, Ottomotto, and
Uber then filed motions for relief from the Magistrate
Judge's orders in Waymo I and Waymo II,
which the District Court denied. See Waymo LLC v. Uber
Techs., Inc. (Waymo III), No. C 17-00939 WHA,
2017 WL 2694191, at *1 (N.D. Cal. June 21, 2017) (denying
relief from the Magistrate Judge's order in Waymo
I); Waymo LLC v. Uber Techs., Inc. (Waymo
IV), No. C 17-00939 WHA (N.D. Cal. June 27, 2017)
(Appellant's App. 15-20) (denying relief from the
Magistrate Judge's order in Waymo
Levandowski appeals the District Court's denial of relief
from the Magistrate Judge's orders. Because Mr.
Levandowski has failed to satisfy his burden to demonstrate
entitlement to a writ of mandamus, we dismiss.
addressing the merits of the appeal, we must satisfy
ourselves of our jurisdiction to receive and decide this
petition for mandamus. See Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999). We have jurisdiction over
"appeal[s] from . . . final decision[s] of . . .
district court[s] of the United States . . . in any civil
action arising under . . . any Act of Congress relating to
patents." 28 U.S.C. § 1295(a)(1) (2012). In
accordance with the final-judgment rule, "a party may
not take an appeal [pursuant to § 1295(a)(1)] until
there has been a decision by the district court that ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment." Robert Bosch, LLC v.
Pylon Mfg. Corp., 719 F.3d 1305, 1308 (Fed. Cir. 2013)
(en banc) (internal quotation marks and citation
omitted). We also have jurisdiction over three
categories of interlocutory orders from district courts: (1)
those involving injunctions, receiverships, or admiralty, 28
U.S.C. § 1292(a), (c)(1); (2) those certified for
immediate appeal by the district court, id. §
1292(b), (c)(1); and (3) those involving patent infringement
judgments that are final except for an accounting,
id. § 1292(c)(2).
Levandowski acknowledges that the District Court's orders
in Waymo III and Waymo IV are not
appealable final judgments pursuant to § 1295(a)(1).
Oral Arg. at 9:05-10,
default.aspx?fl=2017-2235.mp3 ("Under the doctrine as I
understand it, I don't think [the orders] are
final."). He also acknowledges that those orders do not
qualify as routinely appealable interlocutory orders.
Id. at 9:22-55 (acknowledging that the District
Court did not certify the orders pursuant to § 1292(b)
and that the orders do not fall within the categories
enumerated in § 1292(a)(1)-(3), (c)(2)). Instead, Mr.
Levandowski presents two theories of jurisdiction. First, Mr.
Levandowski requests that we treat his appeals from the
District Court's orders in Waymo III and
Waymo IV as petitions for writ of mandamus pursuant
to 28 U.S.C. § 1651(a), asserting that the discovery
orders from which he appeals will violate his Fifth Amendment
right against self-incrimination, and that the constitutional
aspect, relating to an issue already under criminal
investigation, warrants immediate review. See
Appellant's Br. 3. Second, Mr. Levandowski argues that he
has an immediate right to appeal the District Court's
order in Waymo IV because the "Perlman
doctrine, " as set forth in Perlman v. United
States, 247 U.S. 7 (1918), purportedly provides that
"a third-party privilege holder may immediately appeal
an order compelling a disinterested third party to produce
privileged materials." Appellant's Br. 2. We address
these arguments in turn.
Levandowski Has Not Established His Entitlement to a Writ of
Mandamus, Although a Continuing Confidentiality Order May Be
common law writ of mandamus is codified at 28 U.S.C. §
1651(a), which provides that "all courts established by
[an] Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law."
"[T]he writ of mandamus is an extraordinary remedy to
be reserved for extraordinary situations."
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271, 289 (1988). "The traditional use of the writ
in aid of appellate jurisdiction both at common law and in
the federal courts has been to confine the court against
which mandamus is sought to a lawful exercise of its
prescribed jurisdiction." Cheney v. U.S. Dist. Court
for D.C., 542 U.S. 367, 380 (2004) (internal quotation
marks, brackets, and citation omitted).
petitioner bears the burden of showing entitlement to a writ
of mandamus. Gulfstream, 485 U.S. at 289. To meet
its burden, a petitioner must satisfy each of the following
First, the party seeking issuance of the writ must have no
other adequate means to attain the relief he desires-a
condition designed to ensure that the writ will not be used
as a substitute for the regular appeals process. Second, the
petitioner must satisfy the burden of showing that his right
to issuance of the writ is clear and indisputable. Third,
even if the first two prerequisites have been met, the
issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the
Cheney, 542 U.S. at 380-81 (internal quotation
marks, brackets, and citations omitted). Failure to establish
any of these three prerequisites may suffice to deny a
petition. See Amgen Inc. v. Hospira, Inc., No.
2016-2179, 2017 WL 3427716, at *6 (Fed. Cir. Aug. 10, 2017)
(denying a petition for writ of mandamus for failure to
satisfy the second Cheney prerequisite without
addressing the first and third prerequisites). We address the
Cheney prerequisites in turn.
Levandowski Fails to Satisfy Cheney's First
Cheney's first prerequisite, "the party
seeking issuance of the writ must have no other adequate
means to attain the relief he desires." 542 U.S. at 380
(internal quotation marks, brackets, and citation omitted).
Mr. Levandowski contends that he lacks such alternative means
of relief because "an appeal after disclosure of the
privileged communication is an inadequate remedy."
Appellant's Br. 56 (internal quotation marks and citation
omitted). We disagree.
courts "generally den[y] review of pretrial discovery
orders, " Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 377 (1981), because
"postjudgment appeals generally suffice to protect the
rights of litigants and ensure the vitality of the
attorney-client privilege . . . by vacating an adverse
judgment and remanding for a new trial in which the protected
material and its fruits are excluded from evidence, "
Mohawk, 558 U.S. at 109. Although Mr. Levandowski is
an intervenor, he is not precluded from appealing a final
judgment even if the parties decline to do so. See
Stringfellow v. Concerned Neighbors in Action, 480 U.S.
370, 375-76 (1987) ("An intervenor, whether by right or
by permission, normally has the right to appeal an adverse
final judgment by a trial court."). While Mr.
Levandowski contends that "disclosure of privileged
information would irreparably taint the adversary
process" because "[c]ourts cannot force litigants
to unlearn information, " Appellant's Br. 56, he has
not specified why that general argument applies with greater
force here than in any other case, see id. at 55-58.
Therefore, we conclude that a post-judgment appeal by either
Uber or Mr. Levandowski would "suffice to protect the
rights of [Mr. Levandowski] and ensure the vitality of
attorney-client privilege, " Mohawk, 558 U.S.
at 109; see Stringfellow, 480 U.S. at 375-76, as to
this civil action.
Levandowski contends that disclosure of the Stroz Report
would be "particularly injurious or novel."
Appellant's Br. 56 (quoting Mohawk, 558 U.S. at
110); see Mohawk, 558 U.S. at 110 (discussing the
"appellate options, " including petitioning for
writ of mandamus, available to "litigants confronted
with a particularly injurious or novel privilege
ruling"). His arguments are unpersuasive, for it is