Uber finds one allegedly stolen Waymo file on an employee’s personal device (opens in new tab)

- https://en.wikipedia.org/wiki/William_Haskell_Alsup

I wish more people were like this "I need some more domain-knowledge to understand what's at stake? no problem, let me do some learning." Excellent attitude.

" If his truck driving company gets shut down because of theft of trade secrets on a record that he's not willing to deny, too bad for him. Too bad."

Imagine this was a criminal case where person A is charged with hiring person B to kill person C. Exhibit A is a forum post made by person A asking someone to assassinate person C for $15,000, exhibit B is a $15,000 check from person A to person B, and exhibit C is the gun used to kill person C, legally purchased by person A a few months ago and left at the scene of the crime with person B's fingerprints on it. When called to testify in the trial, person B just claims the 5th amendment and contributes zero evidence either way to the trial. How do you prove that person A didn't hire person B to kill person C? That is easily enough evidence to satisfy a jury's "reasonable doubt" so how can you get out of such a predicament?

That's how bad it is for Uber. The above example is a no-win scenario for person A unless you can convince the jury that the check or the gun were planted by the police (or were otherwise fabricated evidence). Uber can't do that because Google's case is so strong and no one is able to deny the theft of all the files.

   > What if Levandowski has the files on his home 
   > computer or something but they never touched Uber's 
   > system?

So in this case Uber presumably has a similar clause in their employment agreement and are searching relevant employees devices for evidence of the files.

As part of discovery, Uber searched personal computers of some employees (ones who weren't, to be sure, asserting the Fifth.)

It's kind of their problem if their own executive most central to the case won't let them do that; that's Judge Alsup's point.

Second, if the plaintiff desires it, they can sue you and your employer both. Name you both in the same suit. It binds you together and drives you apart at the same time. Let the law suit hang for a while and many people would want to just quit and try to settle, your employer could end up suing you in that case, especially if you doing that damages or appears to damage them. Maybe worse, say the company has the data somewhere and you destroyed your computer to prevent searching, you look like a total liar.

How it works is a trusted forensics guy that you hire, he copies all of your stuff. The lawyers hash out some agreements, your lawyers protect your interests but it's a discovery process that they are agreeing on. Think of it as search terms, they come up with some number of search terms related to the charges. Your lawyers are trying to protect your rights and limit the searches to what is alleged. its not supposed to be fishing. It's a game of sorts though, like a number of terms will be agreed to and then your lawyers want the other guys to waste them on bad searches. Then you pay your guy to search your data and report the findings to the court. He says he found x files with their copyright or that it looks like you formatted your drive the day after you got served or other things. And it's evidence in the case.

Levandowski is asserting his right to remain silent and right now that is sinking Ubers ability to fight any preliminary injunction, given he is working in the exact leading capacity at Uber that these files pertain.

From the transcript:

MR. GONZÁLEZ (Uber's lawyer): So, Your Honor, first of all, we have searched and we are in the process of searching all of our computers for the sorts of information that you referred to. And if we find those documents, we intend to produce those. In addition, Your Honor, we are searching Uber's computer that was assigned to all three of the people that are mentioned in the complaint. We are searching all of their individual Uber computers.

We're really here to talk about two things that are related. One is, anything that Mr. Levandowski may or may not have on his own -- let's just assume hypothetically that he's got something at home -- that is not something we have access to. And I just want to be forthright and tell you that. But the issue here is whether any of the stuff is at Uber. And we are searching for that.

THE COURT: Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court."

You have the authority to do that. And you also have the authority to say, "And if you don't do that, you're fired."

...

THE COURT: This is not a discovery thing. And if he doesn't testify to that at the deposition, well, I guess Uber -- you know, Uber is -- if you think this is going to help you, my preliminary view of it is it's not going to help you; and that if there's not a clear-cut path to showing that those 14,000 documents weren't used, then you're looking at a preliminary injunction.

On the other hand, maybe you can convince me that those 14,000 documents somehow none of them were used. Okay. That's a possibility. That has occurred to me that that's true. I just don't know. I don't know. But if Mr. Levandowski is unwilling to say -- hey, listen, I read in the newspaper that he said he did it so that he could do work at home. That's what I read in the newspaper. I don't know. So, look, if he's not willing to come clean, then that looks bad in a civil lawsuit. In a civil lawsuit.

Now, for criminal purposes, okay, maybe he's got the right to take the Fifth Amendment. But for civil purposes, there's a thing called adverse inferences.

MS. DUNN (Uber's other lawyer): I think one point we want to reinforce -- this actually sounds a lot like what Your Honor is saying -- is that if Your Honor is in the situation where he must draw an adverse inference against Mr. Levandowski, we would ask you to keep open the possibility in your mind that the adverse inference should not be drawn against Uber, which is a separate party. And it is our responsibility to come in and show to you that we have not used this and that we're differently situated.

So in that respect we agree.

THE COURT: Okay. I will say this: I'm not going to prejudge the issue without seeing what your record is. And it's conceivable, it's conceivable that that would fly. But it's also conceivable that I would draw the adverse inference against the employer who has the guy, who's taking the Fifth Amendment, who runs the company. To me that is a -- I don't know. I don't know what I would do.

In this case, almost every person in that room was top-in-class quality. Not a single argument point was misstated by counsel and Judge Alsup's position was carefully crafted so as to be defensible upon appeal, while also being no-nonsense and get across the gravity of the situation to Uber counsel.

A jury in a criminal case is not supposed to hold any weight to someone taking a fifth amendment plea to not talk (since it's a provision really meant to protect the innocent) but with human nature that's unfortunately not the case.

However, since this is a civil case I don't know if the legal system has to be neutral in a Fifth amendment plea. If not that would help Waymo's case, especially since Waymo does have evidence that he downloaded these documents. So Him taking the fifth is just to make sure he doesn't do anything himself that will spawn a criminal conviction later.

(IANAL)

A person has the right to decline to answer questions if they believe that their answers could be used against them as evidence of a criminal act. This particular proceeding is civil rather than criminal so its outcome can't result in any criminal convictions. However, if he were later to be charged with a crime and tried in a criminal court any testimony he gave in this civil action could be used against him as evidence in the criminal trial.

For example, during the News International phone hacking scandal [1] a law firm hired by NI participated in the cover-up, providing a sham "internal investigation" and "clean bill of health"

[1] https://en.wikipedia.org/wiki/News_International_phone_hacki...

I'm not saying all criminals are stupid [Edit: stupid, careless, ignorant, poor at prediction, poor at risk calculation, take your pick] ...just that many are. And the really clever ones are often able to do it without even getting accused. So you're left with a group that has a LOT of facepalm-inducing members.

And sad to say, even filtering the list for people in high ranking positions doesn't help that much. Apparently "actually be a clever criminal" and "be a successful business person" don't overlap a lot. (I imagine "ABLE to be a clever criminal" has more overlap...but most decide not to.)

Side story: When I was a young kid (8?) my mom sternly told me "I don't EVER want to hear of you...committing a crime you can't retire on". Oddly enough, that was far more valuable than just saying "don't commit a crime". It had a logic my young brain could understand more easily than base morals or even evaluating the odds of getting caught. It inured me to a fair amount of peer pressure until I was old enough to decide for myself (and kids have few opportunities to commit huge crimes). Each kid is different, of course, but I recommend this to all parents of young children.

> Summer 2015 - Anthony Levandowski told Pierre-Yves Droz, a colleague at Waymo, that he had talked with an Uber executive about forming a self-driving car startup and that Uber would be interested in buying that startup.

.. whole bunch of stuff around retrieving the design data from Waymo/Google ...

> January 5, 2016 - Levandowski took a walk with Droz. In Pierre-Yves’ deposition, he claims that Levandowski “told him that he planned to ‘replicate’ Waymo’s technology at a new company he was forming.” (Droz 27)

.. another bit of downloading ..

> January 14, 2016 - Levandowski was seen meeting at Uber’s headquarters and the news travelled back to Droz. Droz asked Levandowski about this, and he admitted he had met with Uber and was looking for investors for his new company. (Droz 29, Filing 48)

> January 15, 2016 - Levandowski officially forms 280 Systems (in stealth mode). Note that this was one day after his meeting with Uber. (Filing 49)

> January 27, 2016 - Levandowski resigns from Waymo without notice. (Filing 49)

> February 1, 2016 - Levandowski forms Otto Trucking (this is also in stealth mode). (Filing 49)

If you keep reading, they touch on that several times. It sounds like Uber's lawyers complained to the judge and Google complained "Hey, you didn't ask us first" and then the judge yelled at Uber.

It's complicated by the fact that there are multiple suits going on, both the public lawsuit and some sort of arbitration, and Google has different lawyers representing them for the others.

In the end of the transcript of the session the quote is from, Google was saying they were only trying to redact sensitive PII in the employment agreement (the document that they were arguing about) like name, address, salary, etc. and everyone was OK with that.

I don't think the paragraph implies that at all. Rather it says that Uber has not threatened Levandowski with employment sanctions in order to get him to cooperate with its discovery obligations. Uber could do so without running afoul of the 5th amendment as that only binds the government.

Google's lawyer is arguing that the court ought to treat that as constructive non-compliance. There's no implied allegation of perjury or other criminal behavior.

Implicit assumption? The first paragraph of the TechCrunch article says:

  Uber admitted today that it had found one of the documents Waymo alleges was stolen by a former employee — who left its self-driving car effort to join Uber’s — on the employee’s personal computer.

Then they should have their legal team pilloried and set ablaze for advising them to be this cagey.

> from any old baseless accusation

The accusations may be false, but they are not baseless. They're so strong, in fact, that Uber is probably going to be hit with a preliminary injunction. Baseless accusations, by definition, would not have brought Uber to this stage.

Actually, you shouldn't say anything and get a lawyer. Then listen to them. Pleading the fifth is expressly not an admission of guilt however it is portrayed in the media - often times it is necessary even for innocent parties to invoke. I am not a lawyer and this shouldn't be construed as legal advice.

What is the clear benefit to denying rather than pleading the fifth? I know from Psychology that telling a jury to disregard information makes it seem more valuable and true, but that's more speculative than what you seem to have seen.

For example, I work at Twilio. Let's say I hypothetically have some ideas of things to build on top of Twilio that I could turn into a side business. Maybe these things are features that Twilio might want to build into the platform, or maybe not. If I wanted to start a side biz doing these things, it'd be in my best interests to clear it with Twilio first. They might say "that's out of the scope of anything we'd ever build into our product, so go ahead". Or not.

You don't want to find out several years later, when you're becoming successful, that your old employer has decided to stake a claim on what you're doing.

Obviously, can't hold you in contempt (or at least, can't punish you) if you validly took the 5th, but ...

If it's fishing, you can push back. If it's reasonably targeted to result in actionable evidence, probably not :)

"Or is simply working for a company being sued sufficient to be compelled to produce my personal devices?"

Probably not quite without a good reason. To be clear, it's not just companies. If you were, for example, getting divorced, acrimoniously, expect to have your personal devices subpoenaed (my ex was a family lawyer, this happened all the time)

"This entire concept is deeply troubling to me."

Remember that the goal of the civil justice system is not to let people hide things. They just want to resolve the disputes. The best way is "put all evidence and cards on table". So they try to do that.

In cases where it is embarrassing or whatever, you can get protective orders on who may have access, etc.

But you should fully expect, in any lawsuit, company, your neighbor, whoever, that if they have good reason to believe you have relevant evidence on your personal device, you'll be forced to produce it.

If you don't have relevant evidence, i would push back hard.

But also note. Misuse is strongly actionable:

"(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply.

...

Paragraph (c)(1) gives specific application to the principle stated in Rule 26(g) and specifies liability for earnings lost by a non-party witness as a result of a misuse of the subpoena. No change in existing law is thereby effected. Abuse of a subpoena is an actionable tort, Board of Ed. v. Farmingdale Classroom Teach. Ass'n, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), and the duty of the attorney to the non-party is also embodied in Model Rule of Professional Conduct 4.4. The liability of the attorney is correlative to the expanded power of the attorney to issue subpoenas. The liability may include the cost of fees to collect attorneys’ fees owed as a result of a breach of this duty."