By Bryan K. Wheelock, Principal
In Waymo LLC v. Uber Technologies, Inc., [2017-2235, 2017-2253] (September 13, 2017), the Federal Circuit denied intervenor Levandowski’s petition for a writ of mandamus. Waymo alleges that its former employee, Anthony 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 a law firm to investigate Ottomotto employees previously employed by Waymo, including Mr. Levandowski. Waymo sought to obtain the report, which the court permitted, and Levandowski unsuccessfully attempted to block with a write of mandamus. The Federal Circuit said that a petitioner has to show three things to be entitled to the writ:
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.
The Federal Circuit found that Levandowski failed the first test — establishing he had no other adequate remedy. While Levandowski argued that an appeal after the disclosure was in effect no remedy, the Federal Circuit concluded that a post-judgment appeal by either Uber or Levandowski would suffice to protect the rights of Levandowski and ensure the vitality of attorney-client privilege. The Federal Circuit went on to find that Levandowski failed to show that his right to issuance of the writ was clear and indisputable. Finally, the Federal Circuit said that Levandowski had not persuaded it to exercise its discretion here and overrule the District Court.