During the opening 15 minutes of a third day of hearings in Waymo v. Uber, US District Judge William Alsup blasted a Waymo lawyer for Waymo’s attempt to shield its former employees against Uber’s upcoming line of questioning.
The two companies are entangled not only in court via this high-stakes trade secrets lawsuit, but as several former Waymo employees now work at Uber, the startup now wants to depose some of its own employees to better understand how ephemeral messaging—apps such as Wickr or Telegram—was used during their tenure at Waymo. (Waymo is the self-driving car division at Alphabet, Google’s parent company, and Waymo was formerly part of Google.)
Last week, Judge Alsup raised concerns about Uber’s alleged use of ephemeral messaging as a way to avoid civil or criminal litigation as has been claimed by one of its former employees. Uber has now scheduled more depositions prior to a December 22 deadline as the case rapidly moves ahead toward a February 2018 trial.
During the Monday hearing, Uber attorney Arturo González said he wants to ask its current employees who previously worked at Waymo if there was “any written or unwritten policy at Google on the use of ephemeral messaging at work.”
Waymo lawyer David Perlson explained that the company had “concerns about them going into Google policies, fishing for information that might involve attorney-client communications or things like that.”
“We did say they could ask ‘did you use ephemeral communications,’ but we’re going to be providing the policies and what is in there,” he said.
Judge Alsup wasn’t having it.
“This is a direct order and the public ought to be aware,” he said. “I can’t stand it when Waymo or the other side wants it both ways. You have the court’s permission to ask not only the practice, but the policies about ephemeral communications when they were at Waymo and preserve those records where they obstructed your inquiry because they may be shown to the jury.”
A few moments later, Judge Alsup was unequivocal, addressing Perlson. “You’re trying to blame them for ephemeral and they get to show it if you do it just as badly as you do it,” he said.
González added that there was another set of questions that he wanted to ask. “Do you know of anybody else at Waymo or Google? Were you ever instructed to use it or not to use it?”
“You can ask that,” Judge Alsup said.
Waymo v. Uber began back in February, when Waymo sued Uber and accused one of its own former employees, Anthony Levandowski, of stealing 14,000 files shortly before he left Waymo and went on to found a company that was quickly acquired by Uber. Levandowski, who refused to comply with his employer’s demands during the course of this case, has since been fired. Uber has denied that it benefited in any way from Levandowski’s actions.
The case will almost certainly have a huge impact on the future of autonomous vehicles and which companies will dominate the field. If the case makes it to trial and Uber is found liable, it could owe billions in damages.
Last week, the lawsuit has been thrown into chaos as federal prosecutors suddenly—and highly unusually—sent a still-sealed November 22 letter to the judge about their investigation. Judge Alsup had previously referred possible criminal behavior by Uber to be examined by prosecutors. No criminal charges have been publicly filed.
However, in the wake of the federal investigation stemming in part from a newly revealed May 2017 demand letter sent on behalf of and ex-Uber employee, the judge has delayed the start of the trial to early February 2018.