27 Cal. App. 5th 953
Cal. Ct. App. 5th2018Background
- Anthony Levandowski and Lior Ron left Google, formed Otto, and Otto was later acquired by Uber; Google initiated arbitration against Levandowski and Ron for contract breaches.
- Google subpoenaed pre-acquisition due-diligence materials prepared by Stroz Friedberg (retained by Uber's and Otto's counsel) in the arbitration.
- The arbitration panel ordered production of the Stroz materials, finding no attorney-client privilege or absolute work-product protection.
- Uber (a nonparty to the arbitration) petitioned San Francisco Superior Court, which vacated the arbitration discovery order and held the Stroz materials privileged.
- Google appealed the superior court’s order; this opinion addresses appealability and the merits (privilege and work product) and reverses the superior court.
Issues
| Issue | Google’s Argument | Uber’s Argument | Held |
|---|---|---|---|
| Appealability of superior court order vacating arbitrator’s discovery ruling | Order is final and appealable under CCP §1294(c) as it resolved the special proceeding between Google and Uber | Not appealable because the order only addressed discovery in an ongoing arbitration and is not a final award | Order was appealable: it finally resolved the dispute between Uber (nonparty) and Google in the special proceeding and fits §1294(c)/final-judgment rules |
| Attorney-client privilege for Stroz materials | Communications to Stroz (retained by counsel) are privileged as agent-for-attorney or as corporate counsel communications | Stroz was jointly retained by Uber/MoFo and Otto/O'Melveny; materials are privileged and protected from disclosure | Privilege does not attach: Stroz investigated subjects (Levandowski/Ron) who had separate counsel; communications were not made in confidence to an attorney in an attorney–client relationship |
| Attorney work-product protection | Materials are work product and at least absolutely protected (or otherwise not discoverable) | Materials are investigatory factual reports and not opinion work product; at most qualified protection applies | Not opinion work product; factual Stroz materials lack absolute protection. They are discoverable because denial would unfairly prejudice Google (qualified work-product standard met for disclosure) |
| Waiver / common-interest doctrine preserving privilege | Any privilege was waived by disclosure to Uber and/or common-interest doctrine does not apply to save it | Disclosure was within a joint-defense/common-interest framework, preserving privilege | Court did not need to decide because materials were not privileged or opinion work product; waiver/common-interest not reached on merits |
Key Cases Cited
- Berglund v. Arthroscopic & Laser Surgery Ctr. of San Diego, L.P., 44 Cal.4th 528 (Cal. 2008) (nonparty to arbitration is entitled to full judicial review of adverse discovery orders)
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (Cal. 2009) (focus on dominant purpose of attorney-client relationship for privilege)
- Advanced Micro Devices, Inc. v. Intel Corp., 9 Cal.4th 362 (Cal. 1994) (standards for appellate review of arbitration-related orders)
- Judge v. Nijjar Realty, Inc., 232 Cal.App.4th 619 (Cal. Ct. App. 2014) (partial arbitration awards and appealability analysis)
- Kaiser Foundation Health Plan, Inc. v. Superior Court, 13 Cal.App.5th 1125 (Cal. Ct. App. 2017) (partial award did not dispose of all issues; appealability limits)
- State Farm Fire & Cas. Co. v. Superior Court, 54 Cal.App.4th 625 (Cal. Ct. App. 1997) (third-party agents assisting counsel can be within privilege scope)
- Malek v. Blue Cross of California, 121 Cal.App.4th 44 (Cal. Ct. App. 2004) (appellate review standard for superior court vacating arbitration awards)
- City of Woodlake v. Tulare County Grand Jury, 197 Cal.App.4th 1293 (Cal. Ct. App. 2011) (appealability where trial court is the last word on an ancillary matter)