You are defending a recently acquired company in a litigation. As part of pre-acquisition diligence, and prior to the litigation commencing, executives from your client and the company that acquired it shared analysis of facts relevant to the litigation. Now that the acquisition is complete, to what extent can these communications be protected by the attorney-client privilege, the work product doctrine or the common-interest exception to waiver? A recent decision from the Northern District of California strongly signals that companies engaged in pre-merger diligence should use great care in sharing information relating to potential litigations, as it may be very difficult to preclude disclosure down the road.
In Waymo v. Uber Technologies, 3:17-cv-00939, plaintiff and Google affiliate Waymo have asserted state and federal trade secret claims against Uber alleging that one of its engineers, Anthony Levandowski, appropriated Waymo’s trade secrets relating to driverless car technology and formed his own company, Ottomotto, which he then sold to Uber. As part of Uber’s diligence before completing its acquisition of Ottomotto, the two companies agreed that an outside forensic expert would conduct an investigation of whether current Ottomotto employees who had come from Waymo, including Levandowski himself, had misappropriated any of Waymo’s intellectual property. The investigator’s report was completed and circulated to Uber, Ottomotto and counsel for the investigated Ottomotto employees.
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