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Waymo LLC v. Uber Technologies, Inc.

United States Court of Appeals, Federal Circuit

September 13, 2017

WAYMO LLC, Plaintiff-Appellee
v.
UBER TECHNOLOGIES, INC., OTTOMOTTO LLC, OTTO TRUCKING LLC, Defendants ANTHONY LEVANDOWSKI, Intervenor-Appellant STROZ FRIEDBERG, LLC, LYFT, INC., LIOR RON, Movants

         Appeals 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.

          Miles Ehrlich, Ramsey & Ehrlich LLP, Berkeley, CA, argued for intervenor-appellant. Also represented by Ismail Ramsey, Amy Craig.

          Before Newman, Wallach, and Stoll, Circuit Judges.

          Wallach, Circuit Judge.

         Appellant Anthony Levandowski, an intervenor, seeks to prevent discovery sought by Appellee Waymo LLC ("Waymo").[1] 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.

         During 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 II).[2]

         Mr. 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.

         Jurisdiction

         Before 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).[3] 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, [4] id. § 1292(c)(2).

         Mr. 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, http://oralarguments.cafc.uscourts.gov/ 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.

         I. Mr. Levandowski Has Not Established His Entitlement to a Writ of Mandamus, Although a Continuing Confidentiality Order May Be Supported

         The 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).

         The 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 "prerequisites":

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 circumstances.

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.

         A. Mr. Levandowski Fails to Satisfy Cheney's First Prerequisite

         Under 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.

         Appellate 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.

         Mr. 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 ...


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