SAN FRANCISCO (CN) – A federal judge on Tuesday agreed to push back a highly anticipated trade-secrets showdown between Waymo and Uber to give Waymo more time to review a trove of newly produced evidence following Uber’s "elaborate scheme" to keep from handing it over.
But U.S. District Judge William Alsup questioned whether Waymo still had a case and granted only a short continuance to Dec. 4, dashing its hopes of delaying the trial indefinitely while it reviews millions of files on Uber's former engineer Anthony Levandowski.
Alsup did, however, grant Waymo permission to revise a list of nine trade secrets it plans to try for misappropriation, and said he may allow it to include more if it could justify them.
Waymo, claiming it couldn't review a newly produced due-diligence report before the Oct. 10 jury trial, had at first asked Alsup to push the trial to Dec. 5. But in a brief filed Monday, it said that date was no longer feasible given the volume of documents it had to review.
Although Alsup conceded Tuesday that Waymo deserved more time to review the report because Uber had "set up this elaborate scheme to try to conceal these facts from the public and particularly from Waymo" by claiming attorney-client and joint-defense privilege over it, he said it probably wouldn't bolster what once seemed like ironclad allegations that Uber misappropriated its trade secrets.
"Waymo still has a very strong case against Levandowski. Levandowski is almost a lay-down in your case against him," Alsup told Waymo's lawyers in a grim assessment of their case. But Waymo didn't sue Levandowski due to arbitration clauses in its employment agreements with him.
"All of these documents relate to a time-period before Uber acquired Ottmomotto and will not help," the judge continued. "I think if you had found a smoking gun you would have brought it to me today. You haven't found any of that."
Waymo sued Uber and Levandowski's driverless trucking startup Otto in February, claiming Levandowski had downloaded 14,000 trade-secret files from its server days before resigning to start Otto in 2016. Waymo claims Uber promptly struck a deal to buy the fledgling company from Levandowski and hire him to build driverless cars using its trade secrets.
The Google spinoff had been demanding the due-diligence report, prepared by digital forensics firm Stroz Friedberg as part of Uber's planned acquisition of Otto, since the outset of the case, claiming it would prove the theft. But it only received it this month, after Uber and Levandowski lost separate appeals to avoid producing it.
Waymo's lawyers nonetheless say the parts of the report they've reviewed are damning enough to justify giving them time to review the remaining files in order to flesh out their case.
According to them, the 1.4 million-file report shows Levandowski accessed documents on his personal laptop after signing a term sheet to sell Otto involving three of the nine trade secrets Waymo designated for trial and several more it dropped from its trade-secret list after Alsup ordered it to limit its secrets in exchange for an expedited trial date.
In one brief seeking a continuance, Waymo said it would add at least a claim for conversion based on evidence in the report that Uber, through Stroz and its trial counsel Morrison & Foerster, obtained and kept Waymo’s proprietary information during the due-diligence investigation.
"To say we don't have a case and that's why we're doing it is insulting," Waymo’s attorney Charles Verhoeven said Tuesday, replying to Uber's accusation that Waymo wants a continuance to rejigger its failing case. "We do have a case. We deserve to see it."
But a 33-page summary of the report made public by Waymo on Monday revealed that although Stroz had confirmed that Levandowski took and accessed Waymo's confidential self-driving car files while working at Otto, it couldn't confirm whether he had "transferred" them to Otto or Uber.
Also Tuesday, Alsup heard a motion for a separate bench trial by Otto Trucking, which argued that Waymo's claims against it differed from those against Uber and Ottomotto. Otto is comprised of Ottomotto LLC and Otto Trucking LLC.
Alsup did not indicate how he would rule.
He did, however, sum up his feelings about the case.
"I want to say, and I'm now speaking in the distant future to the Court of Appeals, perhaps to the Supreme Court, maybe to the International Court in The Hague: It is true, despite the excellent quality of the lawyers here, that I cannot trust what they say," the judge said. "I have to evaluate everything that comes in a brief or oral statement through a past history of half-truths.
“It's very hard to get anywhere. In many cases the lawyers are just outstanding and they admit the warts. This case is none of that on both sides."
Waymo is represented by Verhoeven with Quinn Emanuel Urquhart & Sullivan in San Francisco, and Uber by Arturo Gonzalez with Morrison & Foerster, also in San Francisco