Taking an Appeal of Third Party Arbitration Discovery

Uber Techs., LLC v. Google, Inc., No. A153653 (D1d3 Oct. 10, 2018)

The California Arbitration Act permits arbitrators and arbitral bodies to issue subpoenas. See Code Civ. Proc. § 1282.6. But a non-party that gets a subpoena issued out of an arbitration has never consented to having a private party adjudicate its rights. So, as the California Supreme Court has made clear, the nonparty can take the matter to a superior court and file a special proceeding for a de novo review of any order compelling discovery. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 44 Cal. 4th 528 (2008). Which is what happened here. 

This is a litigation spun out of the Google v. Uber self-driving car dispute. Google claims that two former Google Dudes allegedly stole trade secrets that they used to form Ottomotto, a competitor, which they subsequently sold to Uber. Since the Dudes were Google employees, the matter is in arbitration under the arbitration policy in their contracts.

Uber knew it was going to get sued over this stuff. So in conjunction with Ottomotto, their counsel hired a Forensic Shop to diligence the Dudes and their devices. The Forensic Shop was to make sure there wasn’t any evidence of exfiltration of Google IP and report back. Forensic Shop interviewed Dudes in connection with its investigation.

Google subpoenaed Uber for Forensic Shop’s interview memos. Over Uber’s work product and privilege objections, the arbitrator ordered the memos produced. Uber petitioned the trial court to vacate the order. Which it did. Google appealed.

There’s a threshold issue as to whether the trial court order is appealable. A third party’s petition for review of a discovery order is essentially a petition to vacate an arbitral award against that party. It has no other participation in the arbitration, so the award against it is essentially final. So when the superior court affirms the arbitrator, it’s makes sense that the third party gets to appeal under § 1294.

The twist here is that unlike in Berglund, the losing party in the superior court is a party to the arbitration, which is ongoing. There’s thus a nontrivial argument that that party (Google) should have to wait till the arbitration is final, and then, if it loses, raise the issue as a grounds to vacate the award.

But § 1294 says that any order vacating an arbitration award is generally appealable. And so far as the dispute between Google and Uber goes, the discovery order is basically a final award. There’s nothing left to decide between the parties. So the court holds that an appeal was properly taken.

As to the merits, the Forensic Shop very clearly worked for Uber and Ottotmotto's counsel, not the Dudes, who were interviewed in their personal capacity. The interview memos thus aren’t subject to the attorney-client privilege. Dudes weren’t using the Forensic Ship to communicate with their own attorneys or their agents. 

The memos could, however, be work product of Uber or Ottomotto’s counsel, gathered at their direction by their agent, Forensic Shop. They aren’t opinion work product, however—they simply relay the facts of what was stated in the interviews. And since there was evidence (which is redacted in the opinion) that the memos were the sole source of the info Google needed, the qualified privilege for fact work-product would have to give way.

Reversed.