The Waymo-Uber legal saga continues. Waymo, Alphabet's self-driving company, claimed on Monday that Uber violated a court's order to produce any and all documents in its possession that so much as mentioned information from the 14,000 confidential files allegedly downloaded by autonomous-
engineer Anthony Levandowski before he left Alphabet. Levandowski is now the head of all of Uber's self-driving efforts.
In a letter filed publicly to Judge William Aslup, Waymo's attorney says that Uber's search for the documents was "willfully" limited and insufficient, and did not include an investigation of the personal devices of Levandowski, now a VP of engineering. After conducting its investigation of Levandowski's work computer, the computers of two other people named in the suit and seven randomly chosen employees, Uber only produced 900 documents.
Waymo's attorneys are asking the judge to either compel Uber to produce the documents it claims Levandowski stole, or to assume that the ride-hail company is withholding them because it was using - and is continuing to use - the stolen information to develop its self-driving system.
"Uber's conduct plainly is designed to delay the expedited proceedings ordered by this Court and stonewall Waymo's request for preliminary relief," the court filing reads. "Specifically, for purposes of Waymo's motion for preliminary injunction, the Court should issue an adverse inference that the downloaded files were and continue to be used by Uber in the development of its custom LiDAR system."
An Uber spokesman says the company only produced those 900 documents after it conducted what it calls an "extensive search," because it doesn't believe it has the files and can't force its employees to turn over personal property. Uber also points out that Waymo could have sued Levandowski personally, but it chose not to.
To make matters worse for Uber, Levandowski asserted his Fifth Amendment rights last week after his legal counsel warned that he could face criminal charges. In other words, Levandowski can't be compelled by the courts or by Uber to produce any documents that could incriminate him.
It's important to note that Levandowski has hired his own criminal counsel - even though he's not named as a party in Alphabet's suit. That has put Uber, which is valued at $70 billion, in a tricky spot.
"Frankly, we obviously have a conflict here," Uber's attorney Arturo Gonzalez said to Judge Aslup during a closed-door hearing last week.
Uber's attorneys told the judge that they'd "love" to have Levandowski give his account of the case, according to court transcripts reviewed by Recode.
"I would love to put Mr. Levandowski on the stand to explain to you what happened, because I think he has a good story to tell," Gonzalez said. "But I can't force him to do that."
Uber's best bet to convince the judge not to grant Waymo's request for an injunction is to prove that it hasn't used any of Waymo's proprietary designs in its own self-driving system - regardless of what documents either Uber or Levandowski may have in their possession.
"If I cannot get a declaration from [Levandowski] then, Your Honor ... We're going to demonstrate to you that we are not using any of these things that they say he may have taken," Uber's attorney said.
Waymo's attorneys assert that not only do Uber's attorneys have sufficient access to Levandowski to retrieve these files, but that Uber is liable for his actions, since the company would have benefited from any trade secrets the executive allegedly brought to the competing ride-hail company from Alphabet.
The letter reads, in part:
"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 ... Indeed, the same attorneys representing Uber also represent Mr. Levandowski personally in the Levandowski arbitration, and these attorneys presently argue (without support) that this suit should be merged with that arbitration. It is these same attorneys who simultaneously represent to this Court that they have not and cannot review Mr. Levandowski's files."
During the closed-door hearings, Levandowski's attorney, Miles Ehrlich, told the judge that he may change his mind about asserting the Fifth Amendment, but because the case is moving quickly now, he simply wanted to protect his client.
"It could well change," Ehrlich said. "And I also in fairness to Uber need to make clear ... This is Mr. Levandowski's rights at stake. We're representing him, not Uber."
In the meantime, Uber has filed for a motion to arbitrate the case, arguing that because Waymo's case is entirely predicated on actions Levandowski allegedly committed during his employment, it should be bound by his employment agreement. In fact, Waymo is currently in the middle of arbitration with Levandowski -- which began in October -- whom they accused of using confidential information to poach employees for competing companies.
Those arbitration documents, which were made public on Monday, also reveal that Levandowski was allegedly involved with two other competing companies while he was still at Alphabet. The first is a company called Odin Wave -- which Waymo alleges that Levandowski is the owner of - and the second is Tyto Lidar, which Otto acquired in May of 2016.
Google was also interested in acquiring Tyto Lidar -- a little-known laser-radar startup - which merged with Odin Wave, according to the company.
Uber is expected to file its opposition to Waymo's request for a preliminary injunction on Friday. If a judge rules in Waymo's favor, Uber would have to stop using anything that Waymo included in a list of trade secrets. A hearing for the injunction is set for early May.
© 2017 Re/Code under contract with NewsEdge/Acquire Media. All rights reserved.
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