Photo: Diego M. Radzinschi/ALM

U.S. Magistrate Judge Jacqueline Scott Corley of the Northern District of California has formally thrown a wrench into Uber’s plan to tell jurors that Anthony Levandowski may have had an innocent reason for downloading Google’s autonomous car files.

Corley ruled Monday that a March 29 conversation on the subject between then-CEO Travis Kalanick; Levandowski, then the head of Uber’s driverless car division, and Uber litigation chief Angela Padilla is “classic attorney-privileged communications.” Corley’s ruling, if adopted by U.S. District Judge William Alsup, appears to head off a nascent defense to Google’s claims of trade secret theft.

Uber had taken the unusual position at a spirited hearing last week that the conversation was not privileged. Kalanick and Padilla say Levandowski admitted at the meeting that he downloaded files from Google, but did so only to ensure Google would pay him a promised bonus. According to Kalanick and Padilla, they encouraged Levandowski to tell his story to Alsup, but Levandowski instead asserted his Fifth Amendment rights.

Uber says the conversation wasn’t privileged – although others the same day involving the same parties were – because Padilla was not providing legal advice, but rather offering comfort to Kalanick as a trusted adviser.

“Why was Ms. Padilla a comfort?” Corley wrote in Monday’s order. “Because she was the in-house litigation counsel and Mr. Kalanick was hoping to learn facts relevant to this litigation.”

Under Uber’s theory, a company could “cherry-pick” communications they want their opponent to see, while shielding as privileged less favorable communications, even on the same subject. “The law of privilege is not that unfair,” Corley wrote.

An Uber spokesperson said in a statement that Google and its subsidiary Waymo LLC are trying to keep out evidence that Levandowski downloaded the files for reasons unrelated to Uber. “We think the jury and the public should hear what was said,” the spokesperson said.

Because Kalanick and Padilla have testified, Uber has now waived its privilege in the subject matter of the Levandowski conversations—including other, still-private communications between Kalanick, Levandowski, Padilla and possibly Levandowski’s lawyers, Corley concluded.

Uber attorney Karen Dunn of Boies Schiller Flexner argued at last week’s hearing that any waiver beyond the single March 29 conversation would be inadvertent based on Uber’s good-faith understanding of the law. Corley then gave Dunn less than 3 seconds—let alone an opportunity to confer with her client—to rescind the waiver.

On Monday, Corley nevertheless held that exchange against Uber. “Finally, at oral argument the court offered Uber the opportunity to withdraw its waiver and assert the privilege over the communications, in other words, to rectify the error. Uber declined,” Corley wrote. “Subject matter waiver applies.”

Corley asked the parties to brief just how far the waiver should reach—including whether Levandowski could trump it by asserting his Fifth Amendment rights. (At last week’s hearing, Corley strongly suggested the answer is yes.) The parties were also directed to brief whether “in fairness” Uber should be allowed to waive privilege for the portions Levandowski chooses not to shield. She also asked Alsup to rule on whether it’s too late in any event for Uber to waive any attorney-client privilege.