SAN FRANCISCO – Attorneys from Morrison & Foerster may have to take the stand in the fast-approaching trade secrets trial between Google Inc.’s driverless car unit Waymo and Uber to explain why the law firm remained silent about possessing an ex-Waymo engineer’s documents.
U.S. District Judge William Alsup of the Northern District of California on Wednesday sharply rebuked Uber Technologies Inc.’s lawyers at MoFo for not informing him earlier it had the documents in its possession. The files are potentially key to Waymo’s allegations that Uber is ripping off its driverless car technology.
“It’s true that you misled the court, time and time again,” Alsup told MoFo partner Arturo González, one of Uber’s lead attorneys.
But in lieu of holding Uber or MoFo in contempt—as Waymo’s lawyers at Quinn Emanuel Urquhart & Sullivan sought—Alsup said he is “inclined” to order attorneys from MoFo to testify about how the firm handled the documents, so the jury can take that into account in weighing the case.
“I have a feeling that Mr. Verhoeven is going to be able to show that some of those files came from Google, maybe not all of them,” Alsup told González, referring to Quinn partner Charles Verhoeven, Waymo’s lead attorney in the litigation. “So yeah, you can get on the stand and put your assistants on the stand and get them to explain.”
The documents in question were in the possession of Anthony Levandowski, the ex-Waymo engineer who went on to head Uber’s autonomous car development, until he was fired following Waymo’s lawsuit.
Waymo alleges that Levandowksi stole some 14,000 files from Waymo relating to driverless car technology before leaving the company. Alsup, in a preliminary injunction ruling, ordered Uber to do everything in its power to have those downloaded files returned to Waymo by May 31.
Through a series of legal engagements–including for Uber in its acquisition of Levandowski’s own startup, Ottomotto, and for Levandowski in a separate employment arbitration brought by Waymo–MoFo was able to access several sets of documents that Levandowski had on his electronic devices. Those include full “images” of his devices that were retained by MoFo’s litigation vendor, the e-discovery company Epiq Systems Inc.
Waymo said it didn’t find out until June about those documents, and moved for Uber and MoFo to be held in contempt of Alsup’s injunction order. But Verhoeven on Wednesday also said Waymo could accept having MoFo testify at trial in October as a remedy instead.
It is unclear whether the documents that MoFo has actually include any of the stolen Waymo files. MoFo has refused to turn them over amid an appeal by Levandowski at the U.S. Court of Appeals for the Federal Circuit arguing that documents he possessed are privileged. Oral arguments on that issue were heard by the Federal Circuit Aug. 11.
But González said that there are no Waymo files among the documents in MoFo’s possession, although he was coy about what the files actually are. “The downloaded materials [from Waymo] are not at MoFo and Uber never knew that we had these documents,” he said. González added this would be proven if the Federal Circuit affirms Alsup’s ruling that the files Levandowski produced during the acquisition should be turned over to Waymo.
Alsup also pressed González about why Uber had initially claimed attorney-client privilege over a conversation in March 2016 between then-Uber CEO Travis Kalanick and Levandowski—in which Levandowski allegedly told Kalanick he had destroyed five discs of files downloaded from Waymo–only to later waive the privilege and disclose the contents of that conversation.
“What could have possibly possessed a good lawyer like you to claim privilege over that information?” Alsup said, noting that no attorney had been present at the discussion. The judge then accused González of selectively revealing the information only when Uber realized it might be advantageous to its case. (At the same meeting, Kalanick allegedly told Levandowski he did not want any Waymo files to be brought to Uber.)
“You’re not fooling me for a second. I see what’s going on,” Alsup said. “Somebody decided after the fact, ‘Oh, we need that conversation. Let’s disclose it.’ … That’s how slick it was.”