SAN FRANCISCO—At a hearing that stretched for more than four hours yesterday, lawyers for Waymo and Uber hammered out the final rules that will govern what evidence is presented in their upcoming trial. Here are five questions that both sides view as paramount for getting their side of the story out to the jury.
Before that, here’s a quick roundup of the Waymo v. Uber basics. Waymo sued Uber in February, claiming that Anthony Levandowski, a former Google engineer, stole 14,000 files just before he left Google to create his own startup, Otto. Within months, he sold Otto to Uber for $680 million and became the head of Uber’s self-driving car project. Levandowski, who is not a defendant in the case, pled the Fifth Amendment rather than answer questions about the allegations. He was fired after he wouldn’t comply with court orders related to discovery.
Uber denies any of the trade secrets ever got to its servers, and the company says its self-driving car technology was built independently.
The case is nearing trial on October 10. Waymo has asked for that date to be pushed back, but US District Judge William Alsup, who is overseeing the case, hasn’t ruled on that request yet.
Without further ado, here are some of the key questions that the two companies fought over, which will govern the rules of how they can present their story. There were dozens of motions filed over courtroom proceedings, but these were the most hotly debated. In all cases, Judge Alsup will be issuing a ruling on them later, in writing.
When did each side get their evidence, and what will the jury hear about it?
Waymo is upset about how late it got some of the key evidence in the case—including the “due diligence” report that informed Uber executives about risks associated with buying Levandowski’s startup.
A key part of Uber’s case is its argument that whatever Levandowski may have done, none of it made it to Uber servers—proved by extensive searches. Waymo wants to place limits on what Uber can say about that searching, arguing they didn’t get a sufficient chance to fact-check it through depositions and discovery.
“He was going to tell the jury about all the searching they did. I don’t know how many servers,” said Waymo lawyer Charles Verhoeven. “He had his whole spiel. He’s repeated it every time. But we can’t test that,” because they haven’t yet deposed the expert who did the searches.
“They’ve been in our house, a dozen times,” countered Uber lawyer Arturo Gonzalez. “They had inspections, we fired Levandowski, and our expert used search terms that they gave us.” The expert who did the searches will be deposed and will testify, Gonzalez assured the judge.
Can Uber portray Levandowski as uncooperative?
How Levandowski gets portrayed is key to the case for both sides, since he may well end up being forced to testify in court and then plead the Fifth Amendment on the stand.
Waymo lawyers say Uber shouldn’t be allowed to effectively throw Levandowski under the bus, because they received so little evidence during discovery about his alleged non-cooperation.
“I took the deposition of Mr. [Travis] Kalanick [the former CEO of Uber],” Verhoeven said. “Any time I asked him about something where a lawyer was in the room—which was almost 100 percent of the time—Mr. Kalanick was instructed not to answer. So I have no discovery about their claim, that [Levandowski] didn’t cooperate.”
“The fact that Mr. Levandowski didn’t cooperate is fairly evident, from the fact that he has taken the Fifth Amendment—and was fired,” responded Uber lawyer Karen Dunn. “I’m surprised at this point this is even controversial, since it’s so evident he did not [cooperate], and that’s one of the reasons he was terminated.”
Then there’s the question of “why isn’t Levandowski in the case?”
Waymo doesn’t want Uber to suggest Levandowski should have been a defendant in the case. That wasn’t an option, said Waymo’s lawyer, in part because Waymo wanted to keep its case in federal court. “There’s nothing improper about that,” he said.
“This is a lawsuit motivated in substantial part by the decision to compete with Uber and to not partner with Uber,” said an attorney for Uber. “This is an important part of the presentation of the case.”
Alsup said he had trouble seeing Waymo’s point on this one. “In every patent case, the defendant always argues—this isn’t about patents, it’s not about IP, this is just one competitor trying to put another out of business,” Alsup said. Turning to Waymo’s attorney arguing the motion, he said: “Have you ever made that argument? I bet you have.”
Defendants claiming a lawsuit is anti-competitive is just a “general theme,” said Alsup, and he was unlikely to preclude Uber from making the claim.
Can Uber bring up the “bonus theory?”
Uber suggests that the reason Anthony Levandowski downloaded 14,000 documents is as a kind of insurance policy to make sure Google paid him the bonus he was due.
Uber “invented” the bonus theory when the company “decided to throw Levandowski under the bus,” said Waymo lawyer Verhoeven. “There’s zero evidence that would even get close to supporting this silly notion that he would download all these documents to blackmail Google or show Google that he should get paid both. ‘I stole your trade secrets, so pay me more money?’ It doesn’t make sense.”
Furthermore, Google paid him. Levandowski apparently e-mailed an acquaintance about it, writing “booooom,” with five Os, according to Verhoeven.
Uber attorney Karen Dunn pointed out that Levandowski did express real concerns about getting paid. But ultimately, Uber doesn’t know why he performed the alleged downloads, Dunn said.
“What you have here, this alternative theory, is exceedingly weak,” Alsup concluded. “You don’t have a single piece of evidence that he did it for that reason. You have timing, and then you want to draw a fantastic inference from that.”
How, and when, can the lawyers address Levandowski likely showing up and taking the Fifth?
Waymo wants to mention Levandowski taking the Fifth in its opening statement.
“He’s a very big witness in this case, and we’re concerned that the jury’s going to be like—what’s going on?” Verhoeven said.
“It’s a very big decision to make, to decide if he’s going to come to court to invoke [his Fifth Amendment rights],” Dunn said. “As you say, he probably will, but that will depend on Your Honor’s decision.” If Waymo were to say that Levandowski will plead the Fifth in their opening statement, “that’s extremely prejudicial,” said Dunn.
“It’s 99 percent going to happen,” Alsup said.
Alsup ended the hearing with some points about his scheduling and courtroom procedures. The case will proceed for about two weeks and have 10 jurors, the sides agreed. He won’t rule on Waymo’s request to delay the trial date until at least the middle of next week, when there is a hearing on the matter.