“The record is pretty convincing that Mr. Levandowski downloaded 14,000 documents.”

SAN FRANCISCO—A heated discovery process continued to play out today in the lawsuit between Waymo and Uber, when a hearing ended with a federal judge ordering Uber to allow a Waymo-chosen expert and attorney to examine Uber’s LiDAR system. US District Judge Alsup also said he’s likely to order documents to be handed over, beginning with a privilege log. He even suggested that lawyers for Anthony Levandowski, the Uber engineer at the heart of the case, start preparing an emergency appeal motion to challenge him. Those statements came at the end of a hearing that lasted more than an hour, which mainly focused on arguments over a privilege log—essentially, a list of documents that the defendant, Uber, believes should be withheld from the other side for one reason or another. In February, Google’s Waymo self-driving car division filed a lawsuit that accused Levandowski of stealing 14,000 confidential documents while he worked at Google. Today, Levandowski’s lawyer Ismail Ramsey laid out his argument that Waymo lawyers shouldn’t even get a privilege log, because Levandowski has asserted his Fifth Amendment to avoid self-incrimination. “They want to know—what are the files he gave, where are they, and who has them now?” said Ramsey. “The Fifth Amendment prevents this. What they can’t get from Mr. Levandowski, they’re seeking to pry from his lawyers.” Ramsey pointed to a joint defense agreement between Levandowski and various law firms that meant that nothing should be revealed. Even though his client, Levandowski, isn’t the one being asked for documents or testimony, the Uber privilege log is “implicit testimony” that should be protected, he argued. “Where does this joint defense agreement reference privilege logs?” asked US District Judge William Alsup, who is overseeing the case. “It doesn’t,” acknowledged Ramsey. “Where does your agreement refer to the 5th Amendment?” asked Alsup. “It doesn’t, specifically,” said Ramsey. “They want to start down the path—to get to a beginning point, a lead, towards understanding where those documents are. That’s what the 5th Amendment prevents.” Under further questioning, a vague outline became clear of what Ramsey was trying to protect. Uber’s lawyers have a privilege log 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. “We just heard that Mr. Levandowski is asserting his 5th Amendment rights very broadly, and that will have severe consequences on this case,” said Melissa Baily, representing Waymo. “Uber and Otto don’t have 5th Amendment rights. They’re corporations.” She continued:

Mr. Levandowski has not been asked to testify about anything. If they want to assert a common interest privilege, then they can do that in a privilege log. But they need to do it in a lot of detail. And there’s no reason they should not be made to provide the name of a third-party author.

At various times during the hearing, Alsup expressed frustration with both Uber’s and Levandowski’s lawyers and suggested they were trying to confuse and delay. Today’s hearing is the first time the judge had even heard the number of documents Levandowski was concerned with.

Missing report, mystery author

“Well, who’s got the due diligence report?” Alsup asked at one point.

“That, Your Honor, is what we’re fighting about,” said Ramsey. “Exposing that provides a link in the chain. The information could provide a prosecutor a starting point.”

“Well, what’s wrong with that?” said Alsup. “It would be the third party doing the testimony. You are hiding from me what the real facts are, and you want me to be in the dark.”

Ramsey asked for Alsup to review the “in camera,” in a secret proceeding where Waymo’s lawyers wouldn’t get to view them. Alsup agreed to read the unredacted list of the 42 documents in question, while Waymo lawyers were handed a redacted version.

“This is clearly a shell game intended for delay,” said Waymo attorney Baily. “Mr. Levandowski is still at Uber, and still, seemingly, has our documents. Mr. Levandowski is still running Uber’s self-driving car program. Yesterday we heard about a 200 to 400 page privilege log. Today, we heard 42 entries are at issue.”

Alsup was sympathetic to the need to move quickly.

“This is a fast-moving industry,” said the judge. “I’ve already delayed the hearing until May 3rd. Come May 3rd, I don’t want someone saying there are unresolved issues.” He continued:

Right now, the record available to the court, under oath, is pretty convincing that Mr. Levandowski downloaded 14,000 documents, wiped his computer clean, transferred those documents to a thumb drive, and took that thumb drive with him when he went to start a new company. That’s the record—undenied. It’s possible when the Uber opposition [papers] come in, we’ll see it’s completely false. But right now, it’s not. And that record warrants some expedition.
Alsup ended the hearing by saying the record warrants allowing a Waymo expert and attorney to examine Uber’s LiDAR system, the technology at issue in the case. He also said there’s a “substantial risk” he’s going to order the privilege log to be produced, in short order. He suggested that Ramsey start writing up his emergency appeal motion immediately. “I hope the court of appeals will read this record, to see the obfuscation the poor judge has been subjected to on this motion,” Alsup said.

“We didn’t use this stuff”

Uber attorney Arturo Gonzalez briefly spoke to reporters in the hall after the hearing. As to whether the identity of the third party that made the due diligence report can be protected by Levandowski’s 5th Amendment plea, “it’s an interesting legal argument,” he said. It isn’t Uber’s argument, but they’re letting their employee make the case. “We want to respect the judge’s orders, and also respect our employee’s rights,” he said. “Our bottom line is, at the end of the day, we didn’t use any of this stuff,” said Gonzalez. “It didn’t make it to Uber. That’s our story. There’s no evidence that any of those 14,000 files ever made it to an Uber computer. The issue is Levandowski’s personal stuff, which we don’t have access to.” A reporter then asked, why not employ the strategy Alsup had suggested at an earlier hearing—that Uber could compel disclosure by penalizing or firing Levandowski. “We can fire him and we still won’t have the documents,” said Gonzalez. “The courts have made clear that’s the law. You cannot compel the employee to produce them [from a personal computer].” Gonzalez was asked again, why not fire Levandowski? “I concede you can fire someone,” he said. “An employer is not required to threaten to fire people.”

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