Judge Alsup:<p>"If your guy is involved in criminal activity and has to have criminal lawyers of the caliber of these two gentlemen, who are the best, well, okay they got the best. But it’s a problem I can’t solve for you. And if you think I’m going to cut you some slack because you’re looking at—your guy is looking at jail time, no. They [Waymo] are going to get the benefit of their record. And if you don’t deny it—if all you do is come in and say, “We looked for the documents and can’t find them,” then the conclusion is they got a record that shows Mr. Levandowski took it, and maybe still has it. And he’s—he’s still working for your company. And maybe that means preliminary injunction time. Maybe. I don’t know. I’m not there yet. But I’m telling you, you’re looking at a serious problem."<p>...<p>"Well, why did he take [them] then?". "He downloaded 14,000 files, he wiped clean the computer, and he took [them] with him. That's the record. He’s not denying it. You're not denying it. No one on your side is denying he has the 14,000 files. Maybe you will. But if it's going to be denied, how can he take the 5th Amendment? This is an extraordinary case. In 42 years, I've never seen a record this strong. You are up against it. And you are looking at a preliminary injunction, even if what you tell me is true."<p>Uber is having a very bad day when a Federal judge starts talking like that. A preliminary injunction looks likely. If Uber can't find anything, this goes against them. Nobody has denied that Levandowski copied the files. Uber paid $600 million for Otto's technology and people. Even if the files didn't make it to Uber's computers, Waymo can probably get a preliminary injunction shutting down much of Uber's self-driving effort. Then Uber gets to argue that their technology is different from Waymo's. It's going to be hard to argue independent invention when all the people are from Google's project.
Offhand, this kind of sounds like a parent asking their teenager to go and search their own room for drugs.<p>"Nah, I didn't find anything. I found this plastic bag that looks like it mighta had something in it, but I'm pretty sure my friend left it here and it was empty when he brought it."<p>"Okay son, go search again."
It is surprising that Google did not push the court to appoint a third party discovery firm to handle the device imaging process and to provide a report to the court.<p>Maybe both parties' intense desire for privacy in this matter has driven Google to this strategy.<p>The seeming ludicrousness of the result - Alsup's "go try again, harder this time" - is not caused by this case's parties playing badly. It is caused by poorly defined and understood laws surrounding what constitutes a defensible search. Data handling in this stage of legal proceedings is imperfect, and can be manipulated by both parties to drive up the cost of litigation, or to strategically avoid disclosing the key breadcrumb documentation that would otherwise have led to the smoking gun(s).<p>Edit: Please find the court reporter transcript here: <a href="http://www.documentcloud.org/documents/3533784-Waymo-Uber-3-29-17.html#text/p3" rel="nofollow">http://www.documentcloud.org/documents/3533784-Waymo-Uber-3-...</a><p>Judge Alsup's comments are fairly aggressive in comparison to most commercial litigation, but the no-nonsense tone is par for the course.
This judge is mighty impressive, and since it's so much in fashion these days to be suspicious of institutions, I want to highlight this passage:<p>THE COURT: If you all keep insisting on redacting so much information, like -- and you're the guilty one on that, Mr. Verhoeven -- then arbitration looks better and better. Because I'm not going to put up with it. If we're going to be in a public proceeding, 99 percent of what -- 90 percent, anyway, has got to be public.
[..]<p>THE COURT: The best thing -- if we were -- one of the factors that you ought to be considering is maybe you should -- if you want all this stuff to be so secret, you should be in arbitration. You shouldn't be trying to do this in court and constantly telling them not to, or you putting in -- the public has a right to see what we do.
[..]
And I feel that so strongly. I am not -- the U.S. District Court is not a wholly owned subsidiary of Quinn Emanuel or Morrison & Foerster or these two big companies. We belong to the public.
And if this continues, then several things are going to happen. One, we're going to call a halt to the whole -- we're going to stop everything. And we're going to have document-by-document hearings in this room,
'“To the extent Uber tries to excuse its noncompliance on the grounds that Mr. Levandowski has invoked the Fifth Amendment and refused to provide Uber with documents or assistance, Waymo notes that Mr. Levandowski remains — to this day — an Uber executive and in charge of its self-driving car program. Uber has ratified Mr. Levandowski’s behavior and is liable for it,” Waymo attorney Charles K. Verhoeven wrote in a letter to the court (emphasis his).'<p>Ouch.
Interesting statement here from the judge and Uber's attorney (Gonzalez). Gonzalez worked for Alsup at some point in their careers.<p>Judge Alsup: Look. I want you to know I respect both
sides here. And everyone knows I know Mr. González from the
days when he was a young associate and I was a partner, and he
was working for me on cases. And he has gone on to be a much
better lawyer than I ever was.
But you shouldn't have asked for in camera on this. This
could have all been done in the open. I'm sorry that
Mr. Levandowski has got his -- got himself in a fix. That's
what happens, I guess, when you download 14,000 documents and
take them, if he did. But I don't hear anybody denying that.<p><a href="https://assets.documentcloud.org/documents/3533784/Waymo-Uber-3-29-17.pdf" rel="nofollow">https://assets.documentcloud.org/documents/3533784/Waymo-Ube...</a>
I just realized how stark the prisoners dilemma here between Uber and Levandowski is. Based on what Alsup was saying today that if Uber can't produce counter-evidence by May 3rd, they are staring down the barrel of a preliminary injunction, they're damned if they fire him and damned if they don't.<p>1. Levandowski remains at Uber. Keeps asserting his fifth amendment rights, which means that Uber can't present evidence to thwart Googles theft claims. Judge files a preliminary injunction, sad trombone, no self-driving cars for Uber.<p>2. Uber fires Levandowski. Now, he has no reason to protect Uber, the incentives for him are to avoid criminal prosecution. He could even do a deal with Google or a prosecutor to cooperate in the civil case in exchange for avoiding criminal prosecution. Uber is then likely to lose the <i>actual</i> case, sad trombone, no self driving cars for Uber.<p>As others have pointed out, the stakes for Uber are incredibly high, they missed the china train and if they can't catch the self-driving-car train, then their $50+ billion valuation is up in smoke.<p>Man I wish I could be shorting Uber right now.
"Judge William Alsup, who is presiding over the case, ordered Uber to search more thoroughly for the documents."<p>Judge Alsup always winds up with the most interesting cases :-)
This story is fascinating for tech people everywhere and we should all pay attention.<p>We all have big dreams of starting our own company some day (I know do) and many of us work for big corporations that would rather we never go anywhere and work for as little as possible. (admittedly the markets are forcing them to pay us a lot but they aren't doing it out of good will).<p>The outcome of this will teach us all very valuable lessons. I can't be the only one who is a little paranoid that if I start my own shit I'll be sued or that I may even be sued for some of the side projects I'm working on even though I've never taken any code or resources from my company.
A lot of people seem confused by the idea that a party can request personal documents someone else has.<p>Just like in criminal land, civil land has subpoenas.
Parties can issue subpoenas for most things to other parties.
In federal court, civil subpoenas are covered by Federal Rules of Civil Procedure rule 45.<p><a href="https://www.law.cornell.edu/rules/frcp/rule_45" rel="nofollow">https://www.law.cornell.edu/rules/frcp/rule_45</a><p>Outside of the exceptions listed, yes, you would be required to produce information you have.
This resolved to the Judge ordering a deeper search:<p>"[The Judge] told Uber to search using 15 terms provided by Waymo, first on the employees’ computers that had already been searched, then on 10 employees’ computers selected by Waymo, and then on all other servers and devices connected to employees who work on Uber’s LiDAR system."<p>Seems interesting that there's not a more comprehensive system or way to search for these since Google is clearly in possession of the specific documents they claim are stolen.<p>The way they're continuing the Judge's order to look for "15 terms" almost makes it seem like the extent of the original search was tied to file name or document titles or something?
Are there any opensource autonomous/driverless car projects with substantial momentum. This seems like something so foundational to the next 50 to 100 years that it needs to be 'owned' by everyone.
It seems to me that even if Uber proves that Levandowski never downloaded the files to Otto, much less Uber, they still are in deep trouble unless they can prove that he never laundered the information in them through his brain to help Otto or Uber develop their technology.
I don't really get how the orders to search for documents on employee-owned devices are possibly enforceable. What stops employees with incriminating data from just throwing their devices in a river before they can be searched?
It seems like Uber has to prove a negative here - because Google has evidence Levandowski took the files they need to show they don't have theM? Or that the files weren't involved in their self driving IP? Not sure how they're supposed to do that.
What Google really wants is to prove that Uber is using the technology in the product it is developing. So the question is how Google will go about trying to prove that, and what Uber would need to do to prove it is not.
I'm curious how Uber (a private company) got access to someone's personal laptop. If my employer demanded access to my personal machine I'd tell them to pound sand.
Aren't you supposed to settle criminal cases before civil ones? Is the guy formally indicted?<p>If they just did the criminal trial first, he couldn't claim 5th protections, right?
i have a very very bad feeling that one day in a distance future employer will be demand your sign over anything that come from your head over to them before they will offer you job.