A Bump in the Road: An Update on the Waymo v. Uber Litigation

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The Waymo v. Uber trade secrets litigation has been underway for less than two months but the case has already hit quite few speed bumps with multiple discovery battles, Waymo’s efforts to obtain a preliminary injunction from Judge William Alsup of Northern District of California, a fight over arbitration, assertions of 5th Amendment rights, and now an appeal to the Federal Circuit that has temporarily halted a portion of the district court proceedings.

As a quick recap of how we got here, Waymo alleges that one of its former key managers in charge of Waymo’s driverless car business, Anthony Levandowski, downloaded more than 14,000 files to start a competing company—Otto—that Uber later purchased.  The key technology relates to a LiDAR system, which is mounted on top of the car and gives the driverless car the ability to “see” other cars and obstacles.  Waymo is seeking a preliminary injunction enjoining Uber from using or disclosing any of Waymo’s trade secrets and from selling any devices based on Waymo’s patents.  In aid of the PI hearing on May 3, 2017, the parties are engaging in expedited discovery. Since this case started, the docket has been quite active and full of interesting, thorny legal issues.

During the proceedings, Levandowski asserted his 5th Amendment privilege against self-incrimination.  Waymo did not name him as a defendant in this action and is instead battling Levandowski in arbitration.  Uber wants this action to also play out in arbitration but the court hasn’t yet decided which forum gets to keep the case.

Uber contends that none of those 14,000 documents has made its way onto Uber’s servers and devices. But without Levandowski’s testimony, Uber cannot—at this time—explain why Levandowski downloaded the 14,000 documents or what he has or has not done with them.  Uber further argues that it cannot be using Waymo’s trade secrets because Waymo uses a single-lens LiDAR whereas Uber uses a four-lens device.  The court also ordered Uber to submit to an inspection of its LiDAR sensors by an expert and attorney of Waymo’s choosing.

In earlier proceedings, Judge Alsup appeared skeptical of the defendants’ claims, at one point, stating, “I have never seen a record this strong in 42 years.”  He further suggested that Waymo’s PI request “could lead to a preliminary injunction that Levandowski cannot work on this project any more until this case is over.”  Considering that Levandowski is one of the most experienced engineers in this space, such an order would likely harm Uber’s efforts to develop its driverless car technology.

But before we can even get to the upcoming PI hearing, the Fed Circuit will first weigh in on whether Levandowski’s 5th Amendment rights can protect a mysterious “due diligence report.”  This due diligence report was prepared prior to the sale of Otto.  Levandowski intervened in this action to prevent Uber from disclosing on a privilege log info about the report including the author of the report, which Levandowski contends will violate his 5th Amendment privilege.  It appears the report contains reference to the documents that Levandowski downloaded. On April 10, 2017, Judge Alsup ruled that Levandowski’s 5th Amendment right does not prevent Uber from complying with the typical requirements of the priv log.  But before things could get much further, Levandowski appealed the order to the Federal Circuit (which has jurisdiction because of the patent claims in Waymo’s complaint).  The Fed Circuit has stayed Judge Alsup’s order and asked the parties to finish briefing today.  This could be a real short stay if Waymo convinces the Fed Circuit that there’s no substance to Levandowski’s appeal.

Regardless of the length of the stay, it’s clear that these parties are in for a long, contested, and interesting battle.  We’ll keep you posted on how this all plays out.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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