Contested Report Likely to Be Revealed in Waymo v. Uber

SAN FRANCISCO (CN) — Citing the public’s right to understand Waymo’s trade-secrets lawsuit against Uber over driverless-car technology, a federal judge denied several motions for protective orders over hotly contested evidence Thursday.

U.S. District Judge William Alsup’s ruling indicates that most of a due-diligence report will be revealed. Waymo claims the report, by a third party, will show that Uber and its former engineer Anthony Levandowski stole its trade secrets.

“The transparency of that due diligence report is crucial to the public’s ability to understand the merits of this case, particularly on dispositive motions and at trial,” Alsup wrote. “No movant has shown sufficient reason to override the public interest factor here.”

Alsup’s 3-page ruling indicates that he thought the requests for protective orders too broad. He wrote that Waymo is “free to put in place confidentiality designations that it believes are appropriate … But if any party attempts to file parts of the due diligence report under seal, or to keep it under seal at trial, such attempt will be denied except as to trade secret (and other truly sealable) information.” (Parentheses in ruling.)

Waymo on Tuesday also filed a motion to close the courtroom during part of the jury trial in October. The 12-page motion claims that testimony and evidence in open court could disclose confidential information that would hurt its competitive standing and reveal sensitive financial data and business plans, salaries, bonuses, internal investigations and agreements and negotiations with third parties.

But Alsup, a strong proponent of public disclosure, does not look like an easy sell on that, either. At a Wednesday hearing, he invited the media to file briefs in opposition.

A Waymo spokeswoman declined to comment on Alsup’s order and Waymo’s motion to close the courtroom.

Waymo sued Uber and Levandowksi’s driverless trucking startup Otto in February, accusing him of downloading 14,000 trade-secret files from its server days before resigning to start Otto. Waymo, a Google spinoff, claims Levandowski promptly struck a deal to sell his fledgling company to Uber, which bought Otto to get Waymo’s driverless technology.

Waymo has been demanding the due-diligence report, commissioned by Uber last year to decide whether to acquire Otto, since filing its lawsuit. But Waymo only received the report this month after Uber, claiming privilege, opposed producing it at the trial court level and the Federal Circuit denied a subsequent appeal by Levandowski to keep it out of its hands.

Levandowski promptly moved for a protective order to stop the report from being produced in a potential criminal prosecution. He invoked his Fifth Amendment rights early in the case to avoid testifying about the report at his deposition.

But Alsup declined to issue the protective order

“The Federal Circuit’s opinion made very clear … that Levandowski ‘is not entitled to Fifth Amendment privilege with respect to disclosure in this civil case’ and also ‘cannot invoke attorney-client privilege or work-product protection,'” Alsup wrote Thursday, quoting from the Federal Circuit’s Sept. 13 order. “Levandowski has proffered no other rationale for his motion, much less any rationale that justifies the sweeping relief he seeks.” (Citation omitted.)

Alsup also denied Waymo’s motion to designate various exhibits to the report as “confidential” or “highly confidential — attorney’s eyes only.”

And he denied Uber’s request to show the jury a “slightly redacted” version that omits references to “potential solicitation.”

Neither company sought to keep the entire report under seal.

Although it appears that the report, or most of it, will be made public at trial, Alsup, citing his previous ruling, said he “already has instructed the parties to keep the due diligence report ‘low-level confidential, among [themselves], and not give it to the New York Times and everybody else.”

Uber did not return a request for comment.

Waymo is represented by Charles Verhoeven with Quinn Emanuel Urquhart & Sullivan in San Francisco; Uber by Arturo Gonzalez with Morrison & Foerster, also in San Francisco; and Levandowski by Miles Ehrlich with Ramsey & Ehrlich in Berkeley. They did not return requests for comment.

Trial is set for Oct. 10.

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