Google initiated arbitration against two former employees of its self-driving vehicle division who quit and formed Ottomotto, which Uber acquired six months later.  The arbitrator ordered Uber to produce records of its law firm’s due diligence investigation of Ottomotto before the acquisition.  Uber objected and then filed this lawsuit in state court to vacate the arbitrator’s discovery order.  The trial court’s order vacating the arbitrator’s discovery order is an appealable final judgment since it finally resolved the only issue Uber raised in its state court petition, even though the merits of the claims Google asserted in the arbitration remained unresolved.  The order resolved all issues between Google and Uber, which was not a party to the still on-going arbitration. Law firm A was hired by Uber, the potential acquirer, and Ottomotto, the potentially acquired firm, to investigate whether Ottomotto’s employees had carted off any trade secrets from their prior employer, Google.  This decision holds that A’s investigative report is not protected from discovery by any attorney-client privilege because it was jointly directed by and shared with opposing parties in the acquisition negotiations between Uber and Ottomotto. Since law firm A’s investigative report was primarily factual and was evidence critical to Google’s claims that its former employees had stolen its trade secrets, the work product privilege did not protect the investigative report from discovery.

California Court of Appeal, First District, Division 3 (Siggins, P.J.); September 28, 2018 (modified upon denial of rehearing October 25, 2018); 27 Cal. App. 5th 953