During a Wednesday court hearing, a federal judge said that if an Uber engineer accused of a massive data theft from his former employer is going to invoke his Fifth Amendment right to protect against self-incrimination and not hand over materials demanded as part of a recent subpoena and upcoming deposition, then he must at least explain himself privately to the judge.
“What I’ve told you is that you can submit the privilege log to me, in camera, without giving it to anyone else and I can evaluate it, which aspects, if any would be incriminating,” US District Judge William Alsup said, addressing a lawyer representing the engineer, Anthony Levandowski, during the hearing. “I’m not ruling against the ultimate assertion of the privilege, but you’ve got to do more than just say in court, Fifth Amendment—you have to do a privilege log and go through the process.”
The case pits Waymo against Uber, which in turn is in a tense situation with one of its own employees, Levandowski, the head of its self-driving division.
Levandowski is now set to be deposed by Waymo lawyers this Friday at their San Francisco offices. He must also respond to a subpoena by handing over materials that he is accused of stealing— thousands of secret documents from his time with Waymo parent company, Google. On Wednesday, Judge Alsup quashed four of the six distinct items requested in the subpoena, but allowed first the most substantive, the allegedly “misappropriated materials,” to stand. (The third item, “All communications between You and Uber between January 2015 and August 2016,” will also remain.)
A sordid tale
Earlier this year, Waymo sued Uber for alleged patent infringement—Waymo claimed that Levandowski, a former Waymo and Google employee, stole 14,000 confidential documents prior to his departure. Armed with that data, Waymo further alleged, Levandowski founded a company called Otto in early 2016, which was then acquired by Uber for $680 million only months later. Waymo argued that this cache of materials allowed Uber to rapidly and seriously compete with Waymo in self-driving technology. Late last month, Waymo lawyers asked the judge to impose an injunction that would compel Uber to stop using any of the allegedly stolen data.
In late March 2017, Levandowski invoked his Fifth Amendment right to protect against self-incrimination—despite the fact that he neither has been charged with a crime, nor is he a named defendant in the civil suit. So far, the engineer has refused to hand over any documents or data related to the lawsuit. In addition, Uber seems unable to compel Levandowski, who still remains employed at Uber, to give up the information.
“As an employer you cannot force an employee to turn over personal property,” Arturo González, one of Uber’s attorneys, told Ars in a phone interview after the Wednesday hearing. However, he noted, Uber would be “very pleased” if Levandowski would hand over any relevant data that he may have.
During that late March court hearing, when Uber indicated it would not pursue any data that Levandowski held privately, Waymo tried a different tactic. It served Levandowski’s attorneys with a subpoena, commanding Levandowski to produce substantial amounts of materials, and to appear for a deposition on Friday, April 14. Levandowski’s own lawyer, Ismail Ramsey, told Waymo’s lawyers in a letter on Monday that Levandowski “plans to assert his Fifth Amendment rights with respect to any documents requests served on him.”
Waymo’s attorneys, for its part, countered in a Tuesday letter to the judge: “Again, the only reason a subpoena was even required to be served in the first place is because Uber and Mr. Levandowski have attempted to construct an artificial distinction between themselves in an effort to delay their obligations to produce responsive information.”
While the second half of Wednesday’s three-hour hearing focused on lingering disputes in the discovery process, the first half was taken up by lawyers from Waymo and Uber each presenting a primer on the general history and applications of light detection and ranging (LIDAR) technology to the judge. (Levandowski is alleged to have taken numerous LIDAR-related designs, which represent a crucial component in self-driving technology.) Both sides pointed out that LIDAR famously is not used by Tesla, which is also pursuing self-driving work.
Appeal it up
As reported earlier this month, Uber’s lawyers initially resisted producing a privilege log of their own. Uber’s log—a list of which documents shouldn’t be disclosed to Waymo as part of civil discovery—is hundreds of pages long, much of it e-mail from Uber’s systems about the $680 million acquisition of Levandowski’s startup, Otto. Levandowski is concerned about 42 documents that relate to a due diligence report about the Otto acquisition. His lawyers won’t even say who the report’s author is.
Four days after that April 6 hearing, on April 10, Judge Alsup denied Levandowski’s lawyers’ attempt to halt Uber from giving up its privilege log.
“At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege,” Judge Alsup wrote. “That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed.”
Levandowski’s lawyers immediately appealed Alsup’s April 10 ruling on Tuesday to the US Court of Appeals for the Federal Circuit, which handles all patent appeals.
Not so happy days
Levandowski’s new log, which would explain what documents he would not be handing over during the deposition, was originally due Thursday, April 13 at 5:00pm local time, but on Wednesday, Judge Alsup reluctantly extended that deadline until April 19.
“I don’t believe that you need until Wednesday at noon,” the judge said.
On Wednesday, the judge also ordered that by April 25, Uber must produce a description of any and all LIDAR-related work performed by Levandowski, who still currently oversees Uber’s self-driving car program.
“You are ignoring all of the other work and you never mentioned what Mr. Levandowski was doing,” Judge Alsup told Uber lawyers during the Wednesday hearing. “What was he working on? It does leave the impression that you have cleverly written around the problem of what Levandowski was working on even if it didn’t turn into a prototype. That’s a fair question, and they are entitled to an answer.”
Judge Alsup also noted that if Levandowski was going to continue to invoke his constitutional rights during the Friday deposition, that the engineer couldn’t do it in one fell swoop. “It has to be invoked question by question—it’ll be a long day but you have to go through the process,” he said, addressing Waymo attorneys.
Both sides will reconvene before Judge Alsup on May 3 to discuss Waymo’s motion for a preliminary injunction, which could put the brakes on on Uber’s self-driving work.