Next Stop for Waymo-Uber Fight Is the Federal Circuit

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U.S. District Judge William Alsup of the Northern District of California has put Google’s trade secrets case against Uber Technologies Inc. on a fast track.

On Thursday, the former Google employee at the center of the case persuaded the U.S. Court of Appeals for the Federal Circuit to slow things down, at least for a couple of days.The Federal Circuit temporarily stayed proceedings while it reviews Alsup’s Monday order that refused to let Uber assert Anthony Levandowski’s Fifth Amendment right against self-incrimination.

The appellate court ordered the parties to wrap up briefing Friday, meaning the stay could be dissolved as soon as the weekend, or extended if the court finds merit to Levandowski’s argument.

Levandowski’s attorneys at Ramsey & Ehrlich urged the appellate court to take a second look in an emergency motion for stay filed earlier Thursday. They argue that Alsup erred while working on “an extremely abbreviated” schedule that curtailed their briefing of the issue.”Mr. Levandoswki recognizes that the district court has set a swift pace for the preliminary injunction proceedings below,” states the motion signed by Amy Craig. “But the dispute over Mr. Levandowski’s privileges is but a small piece of that larger litigation, and a small delay while this court considers the issue will not significantly hamper the litigation.”

Attorneys for Google and its driverless car division, Waymo LLC, have already opposed, saying a stay is unwarranted “because the appeal is baseless and the delay would substantially disrupt the district court’s schedule.”

Alsup has fast-tracked Waymo v. Uber because of “the need to adjudicate Waymo’s claims that it is suffering continuing, irreparable harm from Uber’s violation of Waymo’s rights,” states the opposition signed by Quinn Emanuel Urquhart & Sullivan partner David Perlson.

The motion puts the Federal Circuit, which has jurisdiction over the appeal because the underlying case also includes patent infringement allegations, in a challenging spot. Alsup had originally set a 5 p.m. PDT deadline Thursday for Uber to produce a privilege log that Levandowski says will contain information that could induce authorities to act against him.

The dispute will likely be decided by the Federal Circuit’s motions panel. Thursday’s stay order did not indicate who those judges will be, and the court does not publicize the names of the three judges who rotate onto the panel each month.

Orrick, Herrington & Sutcliffe trade secrets expert James Pooley, who’s not involved in the case, says it’s probably be the first time the Federal Circuit judges have faced the Fifth Amendment issue. That’s because trade secrets disputes only hit the court sporadically and Fifth Amendment issues are rare­—though not unheard of—in trade secret litigation.

Pooley said a Fifth Amendment issue arose in a trade secrets case he handled 25 years ago between Symantec Corp. and Borland International Inc. The Santa Clara County district attorney criminally charged executives accused of spiriting trade secrets from Borland to Symantec, resulting in the executives invoking their Fifth Amendment rights in the civil case between the two companies. Pooley said he could not recall the issue since coming up in a high-profile trade secrets case. “I don’t know that there’s anyone on the Federal Circuit who has had this question before,” he said.

In general, delay is a common strategy for defendants in trade secrets cases, Pooley said. “If you’re looking at a preliminary injunction and ultimately a trial, you do want more time to be able to develop all your defenses as best you can and to find an exit strategy”—typically a settlement, he said.

Preliminary injunction hearings tend to favor plaintiffs because there’s pressure on the judge to preserve the status quo, Pooley said. But if delays push the preliminary injunction hearing closer to a trial date, then a defendant can argue that a decision on an injunction should wait till after trial.

Levandowski argues that more time is needed to preserve his constitutional rights. His attorneys argue that Uber should not be compelled to provide the identity of a third party who prepared a due diligence report on Levandowski’s company before Uber acquired it for $680 million last summer. They say Alsup didn’t even give them a chance to file a reply brief before issuing his ruling.

Alsup ruled that Levandowski’s personal Fifth Amendment right against self-incrimination does not prohibit Uber, which is the defendant in the case, from producing the information. During a hearing last week, Quinn Emanuel partner Melissa Baily urged Alsup to move quickly. Levandowski and Uber should not be allowed to present serial Fifth Amendment motions “while Mr. Levandowski is still running Uber’s self-driving car program and still has [Waymo's] most confidential material,” she told Alsup.

Alsup said he appreciated that Levandowski’s attorneys wanted him to move deliberately. But, he said, “this is a fast-moving industry and I’ve already delayed the [preliminary injunction] hearing till May 3.”

Contact Scott Graham at sgraham@alm.com. On Twitter: @ScottKGraham

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