Subpoenas Quashed in Waymo v. Uber Driverless Car War

SAN FRANCISCO (CN) — In another volley in the driverless-car trade-secrets battle between Waymo and Uber, a federal magistrate on Monday quashed two subpoenas served on Waymo’s outside counsel as beyond the scope of a discovery order.

Although U.S. Magistrate Judge Jacqueline Scott Corley granted Keker, Van Nest & Peters’ motion to quash the subpoenas served on it and a Keker Van Nest attorney by Uber’s co-defendant Otto Trucking, she ordered Waymo to let Otto depose two of its employees involved in a forensic investigation of devices owned by Anthony Levandowski, Otto’s founder and the driverless car engineer at the center of the dispute.

“They want Zbrozek,” Corley told attorneys for Keker and Waymo, referring to Sasha Zbrozek, one of the Waymo employees in question who administers the server from which Waymo claims Levandowski stole 14,000 confidential files. “Well, I think they would get this one.”

Waymo sued Uber and Otto in February, claiming Levandowski absconded with the files just before he resigned in January 2016 to set up Otto, a driverless trucking startup.

Uber announced in August 2016 that it had acquired Otto for $680 million.

Waymo claims Levandowski met with Uber’s senior executives days before he resigned, and that Uber purchased Otto to acquire Waymo’s technology so it could get driverless cars to market first.

In its motion to quash, Keker accused Otto of seeking discovery outside the scope of an Aug. 18 order granting the trucking company discovery into communications between Waymo’s employee Gary Brown, who led the forensic investigation, Waymo’s lawyers, and other people involved in the investigation. Keker does not represent Waymo in the trade secrets case, but it does represent it in a related arbitration against Levandowski.

The motion to quash emphasizes Keker’s marginal role in the case. But Otto insisted in an Aug. 27 letter that Keker “directed” the forensic investigation into Levandowki, and said it is entitled to discovery on Keker’s involvement.

The letter cites part of Brown’s first deposition, during which Brown testified that Tom Gorman — the Keker attorney Otto subpoenaed — instructed him to search for evidence corroborating Gorman’s suspicion that Levandowski downloaded the files. Brown said he corroborated the download through “network traffic.”

“It’s very clear that Keker was actually driving the investigation of Anthony Levandowski,” Otto attorney Neel Chatterjee told Judge Corley on Monday.

Brown and Zbrozek have been deposed once already on their communications with Gorman, but both were instructed not to answer based on privilege, according to Chatterjee. The Otto attorney said he also wants to depose Gorman.

Corley also said Monday she would review in-camera communications Waymo has produced under her order, which Chatterjee said were heavily redacted.

Waymo attorney James Baker acknowledged the redactions, but defended them as beyond the scope of the order because they involve investigations Keker conducted unrelated to the one headed by Brown.

Corley, however, said Waymo may have to disclose them “to the extent that they were wrapped up with” communications encompassed by the order.

“Some things just can’t be sliced out,” she said.

Chatterjee is with Goodwin Proctor in Menlo Park, California; Baker with Quinn Emanuel Urquhart & Sullivan in New York.

Trial is set for Oct. 10.

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