SAN FRANCISCO — In the latest twist in the knock-down, drag-out trade secrets fight between Uber and Waymo, lawyers for Google’s driverless car division are taking aim at their opposing counsel.
In a court filing Wednesday evening, Waymo’s attorneys at Quinn Emanuel Urquhart & Sullivan claim Uber’s attorneys at Morrison & Foerster failed to disclose they had access to part of a trove of stolen Waymo files.
The MoFo attorneys were asked on a June 1 call whether they had any of the 14,000 files stolen from Waymo by former engineer Anthony Levandowski, according to the filing. They responded that MoFo did not have any of the materials that Levandowski downloaded, the filing said.
But almost two weeks later, MoFo’s co-counsel at Boies Schiller Flexner emailed Waymo’s attorneys to clarify that, in fact, MoFo did have some of the files. The files include “certain materials” that Levandowski and “other persons” provided to digital forensics firm Stroz Friedberg during an investigation prior to Uber acquiring Levandowski’s startup, Ottomotto, according to the filing.
MoFo represented Uber in that acquisition deal, which was initiated about a month after Levandowski left Waymo in January 2016. Ottomotto was represented by O’Melveny & Myers.
“Defendants have never explained why MoFo’s possession of stolen files was not revealed until June 12, why those stolen files were not returned to Waymo … or how the terms of an unproduced contract between two third-parties [Mr. Levandowski and Stroz] could prevent MoFo from returning the stolen files or prevent Defendants from requiring MoFo to do so,” Waymo’s attorneys wrote in the filing.
The referenced June 12 email from Boies Schiller counsel Jessica Phillips reads:
MoFo does not have any downloaded materials (or any copies, excerpts or summaries thereof), except to the extent that any such material may appear: (1) excerpted in or as an exhibit to the Stroz Report, which is privileged; and (2) in certain materials AL and other persons provided to Stroz to which MoFo was given limited access during the Stroz investigation pursuant to the terms of the AL-Stroz contract and the protocol governing the investigation, and under strict conditions preventing MoFo from sharing those materials with anyone, including Uber.
MoFo partner Arturo Gonzalez, one of Uber’s lead attorneys, said that the firm still has the files in question. But he also said that fact was disclosed to Waymo’s attorneys early on in the case when MoFo handed over a list of roughly 3,500 privileged documents. The court ordered Uber’s lawyers to hand over an unredacted privilege log on April 10.
“It’s no secret that Morrison & Foerster represented Uber during the [Ottomotto] acquisition and therefore has privileged information and communications. That’s why we submitted a substantial privilege log,” Gonzalez told The Recorder. “To suggest that there’s sandbagging is pretty silly.” Uber spokeswoman Chelsea Kohler declined to comment on the Waymo filing.
In a related development, U.S. District Judge William Alsup of the Northern District of California, who is presiding over the case, ruled late Wednesday night that Uber must hand over the due diligence report that Stroz produced before Uber’s acquisition of Ottomotto.
The report could be a critical piece of evidence for Waymo in establishing what Uber knew about the files Levandowski took before leaving Waymo. U.S. Magistrate Judge Jacqueline Corley had already ordered Uber to turn over the report, and Alsup rejected attempts by Uber and Stroz to overturn her decision based on attorney-client privilege arguments.
“Uber’s carefully-worded objection suggests the remarkable proposition that information communicated in confidence by anyone to Stroz Friedberg for the purpose of enabling Uber and Ottomotto to obtain legal advice from MoFo and [O'Melveny & Myers] should be covered by the attorney-client privilege,” Alsup wrote. “That suggestion has no basis in the law.”
In its motion, Quinn Emanuel is seeking an order holding Uber in contempt for failing to produce any of the files stolen by Levandowski, despite a ruling by Alsup that it do everything in its power to have the files returned to Waymo by May 31. That order in part led Uber to fire Levandowski, who has asserted the Fifth Amendment and refused to answer questions about the stolen files.
Waymo also says Uber failed to comply with an earlier court order requiring Uber to disclose by March 31 if any of the files taken by Levandowski had been deleted or destroyed.
On June 5, lawyers for Uber disclosed that CEO Travis Kalanick, who resigned earlier this week, was told by Levandowski as far back as March 2016 that he had identified “five discs in his possession containing Google information,” according to the filing. Kalanick then told Levandowski not to bring any of that information to Uber, and that Uber didn’t want it. Shortly thereafter, Levandowski told Uber that he had destroyed the discs, the filing said.
“There is no avoiding the plain fact that Defendants have willfully violated two court orders,” Quinn Emanuel partner Charles Verhoeven wrote. “Waymo respectfully requests that the court promptly issue an order to show cause why defendants should not be held in contempt.”
Ben Hancock is a San Francisco-based reporter for The Recorder and Law.com. He writes about the future of litigation, including third-party finance, legal data analytics, and artificial intelligence in the law. Contact Ben at email@example.com. On Twitter: @benghancock.