"If your guy is involved in criminal activity and has to have criminal lawyers of the caliber of these two gentlemen, who are the best, well, okay they got the best. But it’s a problem I can’t solve for you. And if you think I’m going to cut you some slack because you’re looking at—your guy is looking at jail time, no. They [Waymo] are going to get the benefit of their record. And if you don’t deny it—if all you do is come in and say, “We looked for the documents and can’t find them,” then the conclusion is they got a record that shows Mr. Levandowski took it, and maybe still has it. And he’s—he’s still working for your company. And maybe that means preliminary injunction time. Maybe. I don’t know. I’m not there yet. But I’m telling you, you’re looking at a serious problem."
...
"Well, why did he take [them] then?". "He downloaded 14,000 files, he wiped clean the computer, and he took [them] with him. That's the record. He’s not denying it. You're not denying it. No one on your side is denying he has the 14,000 files. Maybe you will. But if it's going to be denied, how can he take the 5th Amendment? This is an extraordinary case. In 42 years, I've never seen a record this strong. You are up against it. And you are looking at a preliminary injunction, even if what you tell me is true."
Uber is having a very bad day when a Federal judge starts talking like that. A preliminary injunction looks likely. If Uber can't find anything, this goes against them. Nobody has denied that Levandowski copied the files. Uber paid $600 million for Otto's technology and people. Even if the files didn't make it to Uber's computers, Waymo can probably get a preliminary injunction shutting down much of Uber's self-driving effort. Then Uber gets to argue that their technology is different from Waymo's. It's going to be hard to argue independent invention when all the people are from Google's project.
For those who don't recognize the name, this is the same judge that learned some Java for the Oracle v. Google case (and has an undergrad degree in mathematics). Every time I read his name I know it's going to be a fun ride and the lawyers will not be able to get away with anywhere near as much shenanigans as they usually do. Although his ruling regarding API copyright in the Google case was overturned, he has a really strong record of making judgments that stand the test of appeals.
The courts are actually pretty first-class. Take a look at the transcript posted elsewhere in this thread for a reference to the transparency of the system, and how this judge is defending it. Supreme Court cases also make for pretty fun reading sometimes, and there's no denying that judges tend to be extremely smart and conscientious.
I'm not sure if you mean the judge's entire name or the name 'Haskell', but just in case you didn't know: Haskell (the language), as well as the functional concept of currying were both named after a mathematician called Haskell Curry :)
Dude he learned Java for a court case? My respect for this man grows immense. What a G.
I wish more people were like this "I need some more domain-knowledge to understand what's at stake? no problem, let me do some learning." Excellent attitude.
> The judge is interested in learning the basic technology and learning publicly known art. This would be a good opportunity for a young lawyer to present in court.
How thoughtful to promote young lawyers like that! Nice judge.
Word Perfect is used for many court cases because it is the only WYSIWYG word processor that paginates footnotes according to the US legal rules. In fact, it had a lock on the DoJ market for ages (and maybe still does) based solely on that. Word could never accommodate it because it breaks backwards compatibility (and whatever you say about MS's shady past, this is something that they stuck to even though it cost them a fair amount). I worked on WP when Corel first acquired it...
Ideally, his political leanings are not involved in his judicial decisions.
For whatever it's worth he clerked for the FDR-appointed justice https://en.wikipedia.org/wiki/William_O._Douglas, was in the US Dept. of Justice under Carter and Reagan, was appointed to the federal court by Clinton, and is a registered Democrat.
We need more judges outside of the D.C. circuit. Technology knowledge is SORELY lacking among the current crop, for that reason alone we need a voice like his.
Judges are supposed to be non-partisan, but in reality a small number of decisions come down to what basically amounts to personal preference. There are sometimes laws and decisions supporting both sides of the argument and the judge is allowed to pick, as long as they can back it up with prior rulings or laws supporting their decision. Once the judge picks, that sets a precedent for future judges to rule the same way since judges tend to value a stable set of rulings and rarely overturn previous decisions (after all the appeals are settled out, of course) unless something major has changed since then.
So if a particular ruling comes down to personal preference and a judge personally leans conservative, they'll likely rule in a conservative fashion on those small number of cases. If they lean liberal, they'll likely rule in a liberal fashion. You often see this in Supreme Court decisions where the justices are split along political lines, with the conservative justices ruling for the conservative side of the argument and the liberal justices ruling for the liberal side.
That being said, the political stance of most lower judges doesn't matter as they have little impact on case law and few opportunities to make political decisions in their job.
Judge Judy was a New York judge from 1982–1996, starting as a criminal court judge and then promoted to supervising family court judge in Manhattan, until her retirement (followed by tv show).
Those shows are pretty interesting. The judges aren't real judges (though most of them were judges in the past). You might wonder, as I did, why on earth defendants who are often obviously in the wrong, would agree to go on the show. The way they often work is if the plaintiff wins their judgement fee is paid by the producers of the show (not the defendant). If the defendant wins both parties receive an appearance fee. It's a binding arbitration as well so going on the show is a great deal for the defendant because there is no financial repercussions to them, it may get them out of a potential judgement in a real civil court, and they might even make some money. All it costs them is potentially looking like an idiot on national television.
Thanks a lot for explaining that. I always wondered in the back of my mind how it actually fit into the legal system. Now I know it doesn't at all! But, I'm glad the participants at least have some fiscal benefit in the end
It's often by self-selected committee. All the judges (or their aides) get in a room and they divvy up the cases among themselves. There is often some other things that effect that too (like "on call" judges who handle various time sensitive proceedings, or agreed upon ways to split up cases nobody wants).
So judges can be assigned cases they are interested in or suited for through that system.
Wow, I never realized that. In Germany judges must be selected "in abstract" beforehand, so that when a case is filed the judge is already determined.
And the court's secretary must under no circumstances tell anyone who is next in rotation (most courts use some sort of modified rotational system), not even the judges!
Any deviation would make certain that revision would be granted.
How is Uber supposed to prove that they don't have the files? I'm asking purely from a legal / process perspective - would they have to turn over all their data to discovery, or something? If they legitimately don't have the files, how could they satisfy the judge? Or is it not possible that they don't have the files? What if Levandowski has the files on his home computer or something but they never touched Uber's system?
Imagine this was a criminal case where person A is charged with hiring person B to kill person C. Exhibit A is a forum post made by person A asking someone to assassinate person C for $15,000, exhibit B is a $15,000 check from person A to person B, and exhibit C is the gun used to kill person C, legally purchased by person A a few months ago and left at the scene of the crime with person B's fingerprints on it. When called to testify in the trial, person B just claims the 5th amendment and contributes zero evidence either way to the trial. How do you prove that person A didn't hire person B to kill person C? That is easily enough evidence to satisfy a jury's "reasonable doubt" so how can you get out of such a predicament?
That's how bad it is for Uber. The above example is a no-win scenario for person A unless you can convince the jury that the check or the gun were planted by the police (or were otherwise fabricated evidence). Uber can't do that because Google's case is so strong and no one is able to deny the theft of all the files.
This is a civil case, so Waymo's burden isn't "reasonable doubt", it's "preponderance of the evidence". In other words: is it more likely than not that Otto stole their tech from Waymo?
This is a much easier bar to clear as a plaintiff. It's the defense's job to make the case that it's more likely than not that they didn't do whatever they're accused of doing.
In this case specifically, one side has extensive computer records that strongly suggest wrongdoing, and the other side hasn't yet produced any evidence -- or even any statements -- contradicting that. Good luck, guys.
Without knowing the law, it seems like Uber could construct a viable legal defence around admitting that they inappropriately got access to these files, while simultaneously arguing that they should not face an injunction blocking work on self-driving technology, because the current technology they're developing differs significantly enough from the proprietary tech Google is trying to claim ownership over.
But it's kinda telling that they are _not_ doing that, isn't it? Just shows how badly Uber screwed up and how Waymo's evidence of theft cannot be so easily dismissed.
> What if Levandowski has the files on his home
> computer or something but they never touched Uber's
> system?
One of the things that surprised me about Google's employee agreement was that by signing it, the employee gives permission to Google to search any and all digital devices associated with the employee whether or not they are owned by Google. When I asked an employment lawyer about it he suggested it was fairly boilerplate (if a bit extreme) and designed to combat situations exactly like this, party A sues the employer based on behavior of employee B who may have been doing nefarious things 'off book'.
So in this case Uber presumably has a similar clause in their employment agreement and are searching relevant employees devices for evidence of the files.
Yikes. Most jurisdictions I've worked a clause like that would be entirely unenforcable.
In Norway, employer even have only limited rights to access things like your employer owned devices if they are personal to you, on the basis that it would be an invasion of privacy unless a lot of steps have been taken to prevent you from accessing or storing personal information on it.
Though in a case like this where they have evidence that implies wrongdoing, that would be sufficient to search equipment the employer owns or have financed. The barrier for searching private equipment is massively higher, though, and would normally require going to court.
Personally I'd never consider working for anyone that demanded a clause like what you outlined. I understand their liability concerns, but the at the same time if they won't trust me, then I can't trust them.
Similar in Finland. Employer isn't allowed to manually track any identifying data (such as IP addresses or e-mail recipients) in their own corporate networks, let alone the actual contents. In case of suspected wrongdoing, automatically collected logs can be handed over to the police for investigation.
Coming from this background the extremely lax privacy protections guaranteed for US based services are always somewhat creepy.
I have read employment agreements in full for all jobs I have ever taken as well as read few of other people who have consulted me about such agreements. I have also read two books on IP laws and researched enough online. I do not think this clause is boilerplate.
On the other hand, whenever someone questions these lawyers about such clauses, they always tell you, ha, this is completely normal, it's boilerplate.
How are they going to do this? Can they enter his house and then search his computer and disks? Take anything and ask for his password to decrypt them? If they simply ask him, and he wouldn't want them to find these files, he could delete them or put them on an encrypted stick that they don't know about.
It works the same as any other contract works. You ask the other party to fulfill their obligations according to the contract they signed -- in this case, submitting their systems for review. If they refuse, then you take them to court for breach of contract.
You can give up many of your constitutional rights to other people or corporations. Like privacy. They could ask him for a password and he would either tell them or be fired.
Though not all Google employees sign this, just the Project X experimental ones.
I have a friend who went through something like this. First off, depending upon the nature of the exact charges there are situations where if it appears you lied or hid or intentionally destroyed evidence the court can find against you and just assume the worst when punishing. So there is a reason to be honest.
Second, if the plaintiff desires it, they can sue you and your employer both. Name you both in the same suit. It binds you together and drives you apart at the same time. Let the law suit hang for a while and many people would want to just quit and try to settle, your employer could end up suing you in that case, especially if you doing that damages or appears to damage them. Maybe worse, say the company has the data somewhere and you destroyed your computer to prevent searching, you look like a total liar.
How it works is a trusted forensics guy that you hire, he copies all of your stuff. The lawyers hash out some agreements, your lawyers protect your interests but it's a discovery process that they are agreeing on. Think of it as search terms, they come up with some number of search terms related to the charges. Your lawyers are trying to protect your rights and limit the searches to what is alleged. its not supposed to be fishing. It's a game of sorts though, like a number of terms will be agreed to and then your lawyers want the other guys to waste them on bad searches. Then you pay your guy to search your data and report the findings to the court. He says he found x files with their copyright or that it looks like you formatted your drive the day after you got served or other things. And it's evidence in the case.
Levandowski is asserting his right to remain silent and right now that is sinking Ubers ability to fight any preliminary injunction, given he is working in the exact leading capacity at Uber that these files pertain.
I've got to assume that not helping your employer's defense in a case like this has got to be a fire-able offense. Then at least Uber could sue him too in order to claim some degree of innocence. (Not that it would necessarily work - I doubt it would, but it's got to be a better strategy than this one).
And the judge even suggests as much - Uber could order him to testify (in the civil suit with Uber as defendant) or fire him if he refuses. But he continues working there today.
Though it is difficult to imagine what he is going to say to counteract the very strong impression of some cloak and dagger data theft. And even if against all odds he comes up with some believable story, it's not like Waymo need him to make their case. IIRC, the start of this whole case was some board manufacturing house sending Waymo an Uber design that looked very much like their own. So the moment they move into expert testimony on the similarity of the two product designs Uber is going to be royally screwed.
IANAL. However, some thoughts for your consideration: California is an at-will state and this doesn't matter. Walking into your employer's office is a fireable offence in California.
So yes, he can be fired for this. What that would achieve, other than looking like an admission of guilt (ironically this may guarantee his continued employment at Uber unless they are prepared to give up their self-driving car department entirely to this case. He may be very sure about his position until this case - and all the appeals that follow are entirely done. After that, yeah he'll be fired. That's a decade from now).
Frankly I do believe that the odds are good that Mr. Levandowski has in fact hired a lawyer, and has decided that the would rather use the protections the criminal justice system offers him personally rather than risking $600 million (or more) and jail time.
The problem is that anything used in a court case becomes part of the public record and can be used in other court cases, including the separate criminal case against Mr. Levandowski.
So may I ask, if your lawyer told you that. You own, let's say $700 million. You could either maximally defend your employer, and through that risk 85%-90% of your net worth and jail time, or you could maximally defend yourself and create as high a burden as possible for Google/Waymo to achieve anything against you personally.
If his contract either with Uber or Google conflicts with this, I believe (without research) that it does not matter : a contract does not have the necessary weight to override constitutional amendments unless explicitly permitted in the relevant amendment. Google has filed a police complaint, thereby offering this option to Mr. Levandowski, and there's no backing out now.
I believe any good lawyer would tell Mr. Levandowski to do this. For very, very good reasons.
You're absolutely right about the motivations from the Levandowski side. He certainly has his own lawyers giving him advice, and some of it is clearly aimed at protecting himself from potential future criminal charges.
But that doesn't mean that his legal strategy jibes well with Uber's strategy. Uber and Levandowski are joined at this hip in this case, but they have different fears and motivations. I just wonder if Uber would have a better chance if they parted ways with Levandowski and turned this into a three-way conflict. There have clearly been some differences in legal strategy between Levandowski and Uber.
His primary concern should be his own future and well being. At the same time, from Uber's perspective, if a key employee is refusing to help your defense by withholding information (something he is legally allowed to do), then the only leverage you have over them may be their position in the company.
From what I gather the judge is only saying that things look very bad for Uber/their employee as it is. So he's basically telling them "Help me out here, and show us the evidence so we can see for ourselves if things are as bad as Google is showing them to be. Otherwise we just have Google's evidence to go on, and it's looking very bad for you!"
That's not really the issue. The issue is whether the judge is going to impute Levandowski's failure to cooperate to Uber.
From the transcript:
MR. GONZÁLEZ (Uber's lawyer): So, Your Honor, first of all, we have searched and we are in the process of searching all of our computers for the sorts of information that you referred to. And if we find those documents, we intend to produce those. In addition, Your Honor, we are searching Uber's computer that was assigned to all three of the people that are mentioned in the complaint. We are searching all of their individual Uber computers.
We're really here to talk about two things that are related. One is, anything that Mr. Levandowski may or may not have on his own -- let's just assume hypothetically that he's got something at home -- that is not something we have access to. And I just want to be forthright and tell you that. But the issue here is whether any of the stuff is at Uber. And we are searching for that.
THE COURT: Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court."
You have the authority to do that. And you also have the authority to say, "And if you don't do that, you're fired."
...
THE COURT: This is not a discovery thing. And if he doesn't testify to that at the deposition, well, I guess Uber -- you know, Uber is -- if you think this is going to help you, my preliminary view of it is it's not going to help you; and that if there's not a clear-cut path to showing that those 14,000 documents weren't used, then you're looking at a preliminary injunction.
On the other hand, maybe you can convince me that those 14,000 documents somehow none of them were used. Okay. That's a possibility. That has occurred to me that that's true. I just don't know. I don't know. But if Mr. Levandowski is unwilling to say -- hey, listen, I read in the newspaper that he said he did it so that he could do work at home. That's what I read in the newspaper. I don't know. So, look, if he's not willing to come clean, then that looks bad in a civil lawsuit. In a civil lawsuit.
Now, for criminal purposes, okay, maybe he's got the right to take the Fifth Amendment. But for civil purposes, there's a thing called adverse inferences.
MS. DUNN (Uber's other lawyer): I think one point we want to reinforce -- this actually sounds a lot like what Your Honor is saying -- is that if Your Honor is in the situation where he must draw an adverse inference against Mr. Levandowski, we would ask you to keep open the possibility in your mind that the adverse inference should not be drawn against Uber, which is a separate party. And it is our responsibility to come in and show to you that we have not used this and that we're differently situated.
So in that respect we agree.
THE COURT: Okay. I will say this: I'm not going to prejudge the issue without seeing what your record is. And it's conceivable, it's conceivable that that would fly. But it's also conceivable that I would draw the adverse inference against the employer who has the guy, who's taking the Fifth Amendment, who runs the company. To me that is a -- I don't know. I don't know what I would do.
Sounds like he is. The guy still runs the part of Uber's company that is under question here. They could fire him, but they have not. They want their cake - not being penalized for his adverse inference - while eating it too - letting him run the part of the company that is in question. And they have not denied that he took the files in question. With no one disputing it Google's claim stands and that alone, with or without adverse inference, might be enough for the prelim injunction.
Which says a lot about the company. In most industries, stealing from your former employer would get you fired immediately. Especially if it draws the company itself in a lawsuit. Usually the first action is to suspend the employee and cut all access to demonstrate that you don't support the behaviour. The way Uber acts looks a lot like they want to profit from the stolen files.
> stealing from your former employer would get you fired immediately
Since that would pretty much be an admission of guilt, you leave out an important detail here. This will only happen if your new employer both believes you did it, and that they will lose the case and get an unacceptable penalty imposed on them as a result.
If they intend to defend themselves, the behavior would be reversed : Legal would strongly object to your firing (or quitting) until the case is over, including all appeals and the terms for any further appeals are over and done with.
Yes. Judges have extreme latitude in what they consider and how they run a trial. Consider the recent case in Hawaii ruling on the travel ban. Quote: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."
(The reference is to the President's statements before and after the election)
Many seem to be surprised reading this transcript. Yet the tone this judge is using isn't anything special. You can see that he takes extreme care not to disadvantage one side, without pretending to be some sort of soulless automaton.
There's a difference between considering details that have been entered into the record by the parties, and saying "oh I saw X in the newspaper". I assume in that case the plaintiff took the President's statements and put it in their filings.
But the judge wasn't using the newspaper report as part of his consideration. He was just offering it up as something that the defendant should be willing put into the court record (instead of taking the Fifth). The fact that it appeared in a paper is, OTOH, clear-as-day evidence that stuff is not being shown to the court, which he's saying has some value as a datapoint on its own (irrespective of the content).
Jury members, to be poignant about it, are not trusted to be objective. They are peers of the defendant. Historically they were the proletariat, and hence uneducated, base, and instinctive.
Judges are supposed to be people who can be trusted to be objective. They are chosen (or, before they were elected, and politics became divisive) for their trustworthiness and objective scholarship. Historically they were well educated, of a higher class, perceived to be of a higher moral character.
The point is judges are expected to be mostly objective, and use external information responsibly.
> Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court."
So Uber says that to Levandowski, and he says "Sure, I'm an obedient employee, I'll give you the file if I have it. I don't have the file." Lying under oath is punishable by law (hence taking the 5th), but lying to your employer is (AFAIK) not.
Now if the judge is satisfied with that, then fair enough, but I doubt he would be. If he wants Uber to require that Levandowski not take the 5th as a condition of further employment he should just say so.
> Uber has the authority to say to its employees, "If you have anything at home you bring it in here
Wait, what? In the opinion of the court, a company has the authority to demand that their employee hands over the contents of his personal computer? That doesn't sound right... please, somebody tell me the US judicial system isn't that retarded!
> In the opinion of the court, a company has the authority to demand that their employee hands over the contents of his personal computer?
This is absolutely the case with at-will employment, and maybe even with an executive or officer directly involved in a case even without that (and an executive likely has a contract that puts them under something other than simple at-will terms.)
> That doesn't sound right... please, somebody tell me the US judicial system isn't that retarded!
If you don't like the law, that doesn't make the judiciary retarded for correctly explaining it.
To me it sounds like you are saying no, an employer cannot compel you to give them your personal information, but that they can terminate your employment if you refuse to hand it over
is that what you meant? I think 08-15's concern was more along the lines of an employer having the ability to demand someone to give up their personal information without their consent.
Considering this is an American federal court case between two American companies, concerning an American employee, for actions in America, I don't think "Yes but in Europe..." is relevant.
Obviously there are limits on what a company can ask its employees to do. I don't think a company would get very far if it required employees to bring in nude photos or dress up in blackface or something.
But in this case these are files that are related to the day job, and are materially impacting the business. Seems like they would be on solid ground conditioning further employment on furnishing the files.
If they want, your employer could demand that you wear pink underwear of a particular brand at all times when in the building and fire you if you did not.
That is a very american perspective though. In Germany you are not allowed to fire someone for these reasons (you might be able to dismiss him for no reason at all but the contract will not be over for quite a long time)
So the authority of a company firing somebody over not handing over their laptop can be reasonably questioned.
> As long as it's not discrimination based, you can fire someone for any reason.
Every decision to choose one course of action over another is "discrimination-based"; you mean as long as it is not discrimination on an expressly-prohibited basis.
But what are Germany's laws about discovery? This seems like a problem that would have occurred even before computers: if an executive is handwriting letters at home to engage in illegal activity for the benefit of their company, does a German court have authority to search the home?
This is an American case, and it's being litigated in accordance with American law, so the judge is using American rules about employment to achieve the goal here. I would be surprised if there weren't some way to accomplish the same goal in Germany.
The comment you're replying to wasn't meant as a comment on the case, but to rebut the idea that "at-will employment" is some sort of universally-valid, natural state. It's just one of many possible answers, and every society has come up with their own.
Regarding discovery, I must say that the US system is actually more advanced than Germany, where, in civil law, there isn't really a doctrine for recovering incriminating evidence (or otherwise compelling evidence) from the opposite side, apart from a few specific circumstances.
I'm not convinced "at-will" employment extends this far, especially in California. There are still protections against being fired for reasons unrelated to your job.
They have evidence that he stole documents from a competitor. Asking him to prove he doesn't have any of those documents or be fired seems perfectly reasonable.
It's part of the standard employment contract, as a nuclear option that's only invoked in cases like this.
Basically, if the employee refuses and the company fires the employee, the company can shield itself from liability by cutting ties with the employee and telling the court that they had no idea what the employee was up to and didn't condone it at all.
I mean, can't it? California is an "at-will" employment state, right? They could presumably fire an employee for refusing to straight up burn their own house down.
That would constitute arson, and arson is a crime. It's not legal to procure criminal behavior, whether by an employment contract or by other coercive means.
Technically, arson is burning down someone else's property. It's not a criminal offence to burn down a house you own, though it is likely a non-criminal fire code violation.
I don't think that's right. For example, in the California Penal Code,
"A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." [1]
The incendiary's ownership or not of the property doesn't matter.
For purposes of this paragraph, arson of property does
not include one burning or causing to be burned his or
her own personal property unless there is an intent to
defraud or there is injury to another person or another
person’s structure, forest land, or property.
Just as you'd expect. Whether the property in question are books you own, or a shed, or your entire house it's your property and it's not a crime to turn your property into a bonfire so long as doing so doesn't break other criminal laws.
As an aside, it's striking how poorly someone can come off when their conversational speech is quoted verbatim. A lot of cutting and some paraphrasing goes on when publishing interviews to avoid this. Doesn't appear to be an issue in this discussion, but if a clearly intelligent judge can come off as somewhat dithering on reading a transcript, it's a good reminder to give others the benefit of the doubt when they're quoted verbatim.*
*I'm experiencing a bit of Baader Meinhof here. Just today I learned of something called the conversational Trump Trench. Basically the idea is that these days almost any conversation will end up sliding into being about Trump, or being perceived to be about Trump. So I feel the need to say I didn't have him in mind when I started writing this, and I don't personally support Trump. But even when reading Trump quotes, probably still worth keeping this in mind.
For your first few transcripts, it will stick out at you. After you've read a few transcripts from nervous people giving a deposition, you'll see what dithering properly looks like. You'll also begin to see that overly fluid long pieces of prose in back-and-forth discussion aren't natural - they indicate an individual has rehearsed their statement.
In this case, almost every person in that room was top-in-class quality. Not a single argument point was misstated by counsel and Judge Alsup's position was carefully crafted so as to be defensible upon appeal, while also being no-nonsense and get across the gravity of the situation to Uber counsel.
When you are being questioned by authorities, even if you are 100% clear/not guilty in the matter the simple fact of the matter is that it is very unlikely that you will be 100% accurate in your testimony to the authorities. Little details (even when correct) can be twisted by the authorities who have an incentive to get a conviction. So the fifth amendment was created to give legal protection to individuals who do not wish to testify or talk with authorities themselves and allow them to utilize an impartial 3rd party lawyer to manage the conversation flow.
A jury in a criminal case is not supposed to hold any weight to someone taking a fifth amendment plea to not talk (since it's a provision really meant to protect the innocent) but with human nature that's unfortunately not the case.
However, since this is a civil case I don't know if the legal system has to be neutral in a Fifth amendment plea. If not that would help Waymo's case, especially since Waymo does have evidence that he downloaded these documents. So Him taking the fifth is just to make sure he doesn't do anything himself that will spawn a criminal conviction later.
The judge specifically says that the 5th is only valid in criminal cases and leads to adverse inference in a civil case like this. Meaning the judge is very well able to assume that files ended up at Uber if they don't show enough effort to produce proof. So the fact that the employee uses the 5th hurts Uber significantly in this case.
The 5th covers several rights of a person accused of a crime. In this context they are referring to the amendment's protection against self incrimination: "nor shall be compelled in any criminal case to be a witness against himself."
A person has the right to decline to answer questions if they believe that their answers could be used against them as evidence of a criminal act. This particular proceeding is civil rather than criminal so its outcome can't result in any criminal convictions. However, if he were later to be charged with a crime and tried in a criminal court any testimony he gave in this civil action could be used against him as evidence in the criminal trial.
It's not normal or appropriate for a judge to include that in his judgment. I don't think he brings up the lawyers to show that he seems guilty, but to show that he definitely is taking this seriously. Plaintiff has really good evidence, suspect has lawyered up in a BIG way, and the defendant is just kind of doing nothing. Whether he's guilty or not, I think the judge is trying to point out to them that this is a major case and they're the only ones not acting like it.
A court can draw adverse inference based on defendant's actions. So yes the judge can say that, but you'll note he says "we're not there yet, I don't know." and words to that effect. He is warning them that this doesn't look good for you but I haven't made up my mind so don't take this as judgment.
The case is not at trial yet. They're still in discovery and coming up on a possible preliminary injunction. Evidence is coming in and going on record, but it's not evaluated at this stage. That's why the judge makes remarks like "we're not there yet".
This is a hearing for a preliminary injunction. It comes before the actual trial. So we're pretty close to "there", for the purposes of the injunction. The idea is you stop the (possibly) bad behaviour based on the evidence at hand, to prevent long term damage while the trial winds its way through the courts.
Levandowski isn't a defendant in this case, Uber is. By all accounts he could tell them to fuck off, and he pretty much does that if you read the transcript.
It's an absurd position to take. Maybe he picked his lawyers based on quality of the lawyers he'd be facing. I've met some of Google's lawyers, and if I were being sued by them, I'd get the best damn lawyers my money could buy.
Offhand, this kind of sounds like a parent asking their teenager to go and search their own room for drugs.
"Nah, I didn't find anything. I found this plastic bag that looks like it mighta had something in it, but I'm pretty sure my friend left it here and it was empty when he brought it."
> Offhand, this kind of sounds like a parent asking their teenager to go and search their own room for drugs.
I have expressed this attitude to corporate lawyers before, and asked them how the system deals with bad actors.
Basically, if a judge catches you lying during discovery, they can issue a default judgement against you and impose very serious additional damages. For example:
A sufficiently annoyed judge has a broad range of sanctions available for punishing people who get caught gaming the system. (Some of these sanctions may take years to fully play out, though.)
Penalties or no, law firms have certainly participated in covering up illegal behaviour in the past.
For example, during the News International phone hacking scandal [1] a law firm hired by NI participated in the cover-up, providing a sham "internal investigation" and "clean bill of health"
Moreover, I've seen 'mistakes' and intentionally 'last minute' delivery of documents myself at trials, along with what essentially amounts to blatant filibustering. It was considered 'part of the game'. No one was punished.
It's good for everyone that the police can't skirt around the rules of discovery and present 'last minute evidence' that denies peoples' right to a free trial, yes.
Respondent is the term for the party advocating against overturning a previous ruling during an appeal. Defendant is correct in this case because this is not an appeal.
The terminology varies quite widely from place to place, but it's common for the word "defendant" to be used in both criminal and civil cases in the USA. Respondent's correct too.
A lot of times you'll even see official documents not really pick a side on the question of terminology. They'll say things like "defendant/respondent" or "petitioner/plaintiff".
If finding and reporting the documents already threatens bankrupt the defendant, imposing additional sanctions for lying about finding the documents isn't much of a threat.
Sanctions against a company, sure. But sanctions against a lawyer, up to and including the threat of disbarment, threatens a person's entire career and livelihood. Not that you can't find a lawyer willing to stomach the risk of walking close to that line and use their career as table stakes, but you'll pay them accordingly.
A federal judge calling out your defendant's shenanigans so strongly raises that personal risk of sanctions to the lawyer of continuing to defend that client. And the defendant will keep having lawyers bail out until they either get their act together or the case ends (probably not in their favor, since they can't even keep a lawyer around for long).
Which is so absurd on the face of it that it almost certainly can't be what's happening here.
Having had an inside view into several situations which received public coverage, it's clear to me that the old adage of, “a man always has two reasons for what he does—a good one, and the real one,” applies not just to people, but to the entities they wield.
Also, there is no reason to believe that a bad actor would steal 14,000 documents from a previous company, and then on the first day on the job go and upload them to the company git server.
If I knew I was being nefarious, I would keep those documents on a completely airgapped computer in a private (non-company) space, only reference them when I was alone, and then bring information into the company only through my brain(and probably, with a reasonable parallel reconstruction already determined).
I don't disagree with your assessment in general, the problem is that when you take the set of "criminals", and then further drill in to "criminals that actually get accused", you rapidly change the ratio of "clever" to "think-they-are-clever".
I'm not saying all criminals are stupid [Edit: stupid, careless, ignorant, poor at prediction, poor at risk calculation, take your pick] ...just that many are. And the really clever ones are often able to do it without even getting accused. So you're left with a group that has a LOT of facepalm-inducing members.
And sad to say, even filtering the list for people in high ranking positions doesn't help that much. Apparently "actually be a clever criminal" and "be a successful business person" don't overlap a lot. (I imagine "ABLE to be a clever criminal" has more overlap...but most decide not to.)
Side story: When I was a young kid (8?) my mom sternly told me "I don't EVER want to hear of you...committing a crime you can't retire on". Oddly enough, that was far more valuable than just saying "don't commit a crime". It had a logic my young brain could understand more easily than base morals or even evaluating the odds of getting caught. It inured me to a fair amount of peer pressure until I was old enough to decide for myself (and kids have few opportunities to commit huge crimes). Each kid is different, of course, but I recommend this to all parents of young children.
This isn't about criminals exactly. It's about an engineer thinking "My future job is going to be a huge pain without access to the shared drive that has all our notes and matlab scripts and research papers. Maybe I'll just make a copy and keep it for occasional reference in case I need to look something up.".
"Also I'll set up a company through a straw man and convince my employer to buy it for a few hundred million, in case I ever need a few hundred million.
Then, I'll abscond with those documents and few select google employees and start my own thing. With matlab and LIDARS! Which reminds me: I should really take a long walk with this Travis guy. Maybe he has a need for 'occasional reference'".
When you take the set of "criminals", and then further drill in to "criminals that actually get accused", you rapidly change the ratio of "clever" to "think-they-are-clever".
There's a DOJ investigator for white-collar crimes who has a sign in his office/interrogation room: "If you're here, you're not as smart as you thought you were."
I've got a feeling that if you plot intelligence along the x-axis and "self-assessed probability that I can get away with it" on the y-axis, you'd see a classic bathtub curve.
I don't disagree, but my point is this: Finding these files on Uber servers certainly is, if not proof of guilt, at least very damning. However, lack of files on Uber servers isn't proof of innocence.
> I'm not saying all criminals are stupid [Edit: stupid, careless, ignorant, poor at prediction, poor at risk calculation, take your pick] ...just that many are. And the really clever ones are often able to do it without even getting accused. So you're left with a group that has a LOT of facepalm-inducing members.
Right, it's a classic example of survivorship bias.
If you look at the evidence Google presented, I'm really not convinced he thought things through at all. For someone seemingly trying to do something illegal, he's been curiously inept:
> Summer 2015 - Anthony Levandowski told Pierre-Yves Droz, a colleague at Waymo, that he had talked with an Uber executive about forming a self-driving car startup and that Uber would be interested in buying that startup.
.. whole bunch of stuff around retrieving the design data from Waymo/Google ...
> January 5, 2016 - Levandowski took a walk with Droz. In Pierre-Yves’ deposition, he claims that Levandowski “told him that he planned to ‘replicate’ Waymo’s technology at a new company he was forming.” (Droz 27)
.. another bit of downloading ..
> January 14, 2016 - Levandowski was seen meeting at Uber’s headquarters and the news travelled back to Droz. Droz asked Levandowski about this, and he admitted he had met with Uber and was looking for investors for his new company. (Droz 29, Filing 48)
> January 15, 2016 - Levandowski officially forms 280 Systems (in stealth mode). Note that this was one day after his meeting with Uber. (Filing 49)
> January 27, 2016 - Levandowski resigns from Waymo without notice. (Filing 49)
> February 1, 2016 - Levandowski forms Otto Trucking (this is also in stealth mode). (Filing 49)
It is surprising that Google did not push the court to appoint a third party discovery firm to handle the device imaging process and to provide a report to the court.
Maybe both parties' intense desire for privacy in this matter has driven Google to this strategy.
The seeming ludicrousness of the result - Alsup's "go try again, harder this time" - is not caused by this case's parties playing badly. It is caused by poorly defined and understood laws surrounding what constitutes a defensible search. Data handling in this stage of legal proceedings is imperfect, and can be manipulated by both parties to drive up the cost of litigation, or to strategically avoid disclosing the key breadcrumb documentation that would otherwise have led to the smoking gun(s).
It's not so surprising given that if Uber doesn't find anything, Google would have a much better chance at the Prelim. Injunction. Hiring a 3rd party firm isn't needed since Google is ahead either way, and Uber doesn't need a third party firm to search its own system (or at least, hopefully they don't).
I'm really surprised at how the search is going too (by the article). "Go find these documents." "Didn't find them." "Okay go again." "Okay." Now if you're an employee that has any of those documents and you weren't searched the first time, there's no way you'll be caught with the documents by the time the second search starts.
My reading is that it's not the results being judged, but the process of the search. Given the high confidence that seems to be assigned to the claim that 14,000 documents were downloaded, "we asked our employees to give us what they have, and this is all we got" isn't good enough.
This judge is mighty impressive, and since it's so much in fashion these days to be suspicious of institutions, I want to highlight this passage:
THE COURT: If you all keep insisting on redacting so much information, like -- and you're the guilty one on that, Mr. Verhoeven -- then arbitration looks better and better. Because I'm not going to put up with it. If we're going to be in a public proceeding, 99 percent of what -- 90 percent, anyway, has got to be public.
[..]
THE COURT: The best thing -- if we were -- one of the factors that you ought to be considering is maybe you should -- if you want all this stuff to be so secret, you should be in arbitration. You shouldn't be trying to do this in court and constantly telling them not to, or you putting in -- the public has a right to see what we do.
[..]
And I feel that so strongly. I am not -- the U.S. District Court is not a wholly owned subsidiary of Quinn Emanuel or Morrison & Foerster or these two big companies. We belong to the public.
And if this continues, then several things are going to happen. One, we're going to call a halt to the whole -- we're going to stop everything. And we're going to have document-by-document hearings in this room,
"[...] the Court first states its strong concern that the memorandum in support of the motion to compel is overly redacted. Our federal courts belong to the public, and the public and the press have a legitimate interest in looking over our shoulders to see the work in progress in our courts. The essence of our work concerns evaluating competing arguments. Parties should not hide those arguments under seal out of a desire to shroud business dealings in secrecy. [...] This theme runs throughout the brief history of this case. Please do not claim privacy over anything less than true trade secrets or other material clearly deserving to be under seal."
So from what I understand, Google is litigating this in public, but their lawyers, such as Mr. Verhoeven, are redacting everything on their side they don't want public. This makes it sound like Google is doing this in public mainly to hurt Uber as much as possible in the court of public opinion. Am I wrong in interpreting Google's actions this way?
Sounds like this and many other conflicts Google had with Mr. Lewandowsky over the years should have been dealt with in arbitration. This just looks like Google acting out a vendetta against Mr. Lewandowsky. They tolerated his actions when he worked for them and even after he left to work for himself, but turned against him once he joined a competitor.
While on paper, it doesn't appear that Mr. Lewandowsky is a saint, Google doesn't look good here either. Google's behavior here should give any engineer pause about considering Google as a place to work. California doesn't allow non-compete agreements, and this looks like Google attempting to achieve the effects of a non-compete through litigation. "If we can't hire and keep Mr. Lewandowsky, then we'll make sure our competitors can't either."
A vendetta against Mr. Levandowski? Google paid him $120 million, and he then took that same technology for another multi hundred million dollar payday from Uber. Mr. Levandowski's avarice is basically something I can't really comprehend.
> So from what I understand, Google is litigating this in public, but their lawyers, such as Mr. Verhoeven, are redacting everything on their side they don't want public. This makes it sound like Google is doing this in public mainly to hurt Uber as much as possible in the court of public opinion. Am I wrong in interpreting Google's actions this way?
If you keep reading, they touch on that several times. It sounds like Uber's lawyers complained to the judge and Google complained "Hey, you didn't ask us first" and then the judge yelled at Uber.
It's complicated by the fact that there are multiple suits going on, both the public lawsuit and some sort of arbitration, and Google has different lawyers representing them for the others.
In the end of the transcript of the session the quote is from, Google was saying they were only trying to redact sensitive PII in the employment agreement (the document that they were arguing about) like name, address, salary, etc. and everyone was OK with that.
'“To the extent Uber tries to excuse its noncompliance on the grounds that Mr. Levandowski has invoked the Fifth Amendment and refused to provide Uber with documents or assistance, Waymo notes that Mr. Levandowski remains — to this day — an Uber executive and in charge of its self-driving car program. Uber has ratified Mr. Levandowski’s behavior and is liable for it,” Waymo attorney Charles K. Verhoeven wrote in a letter to the court (emphasis his).'
No, that's a completely non-substantiative quote from an attorney for one side that contains the implicit assumption that Uber really does have the documents and is actively committing crimes in discovery to prevent the discovery from working. Not only is it not an unbiased source, it's basically a source being paid to be biased. Which is fine; I am generally down with the philosophy of adversarial justice. But you shouldn't read much of anything at all into that quote.
For those of us on the outside, while we are justified in considering that a possible hypothesis, we are also justified in looking at the facts and considering that it may indeed be the case that these documents were never given to Uber. I for one have no trouble believing that the documents were downloaded by an individual but that they were never given to Uber, as I rather suspect "keeping more than one really ought from one's previous job but never raising to the level of actually giving that stuff to one's next employer" is really quite common.
"that contains the implicit assumption that Uber really does have the documents and is actively committing crimes in discovery to prevent the discovery from working"
I don't think the paragraph implies that at all. Rather it says that Uber has not threatened Levandowski with employment sanctions in order to get him to cooperate with its discovery obligations. Uber could do so without running afoul of the 5th amendment as that only binds the government.
Google's lawyer is arguing that the court ought to treat that as constructive non-compliance. There's no implied allegation of perjury or other criminal behavior.
He invoked the fifth. Uber could fire him, but I don't seriously expect them to be able to get more out of him than the court itself can. Would you rather lose your job or go to prison isn't a hard question to answer, after all.
If Uber fires him, they run the risk of him throwing them under the bus, in exchange for legal leniency.
That's a problem with criminal conspiracies - you either have to stand by your partners, or hold a threat worse then jail time over their heads. Easy for a mob boss, less easy for a unicorn.
That's true. But at the same time, it seems to me, Uber lawyers are arguing that Uber is not responsible for Lewandowski's defence strategy even when that hurts Uber. If an employee works against his company, he is usually fired. Uber his looking bad either way here.
> No, that's a completely non-substantiative quote from an attorney for one side that contains the implicit assumption that Uber really does have the documents
Implicit assumption? The first paragraph of the TechCrunch article says:
Uber admitted today that it had found one of the documents Waymo alleges was stolen by a former employee — who left its self-driving car effort to join Uber’s — on the employee’s personal computer.
Until the facts of the case come out, don't fall into the dangerous dark hole of fully buying into either story.
The other day I booted my old galaxy s3 to put a new ROM on it and turn it into a dashcam. I found on it that google drive had offline backed-up some documents from a company I had worked at several years ago, and no longer did. Should I be sued for trade secret theft?
I don't find this to be the same. What you did could be defended easily by saying it was an accident and you behavior would have been nonmalicious. You didn't purposely back up some old files, start a new company with the same exact tech from those said files then sell the new company 2 months later for a cool 680mill. If you did that then yes your old employ would definitely have a case against you. If your story is as described they company would lose.
You have your facts mixed up. The person who was found with a single document was not the defendant, it was someone else from Google. And we don't know what that file was. Was it downloaded years ago? Was it a README file? Was it an XLS file that he worked on a couple of years ago that he was writing? We don't have any information yet.
All of the first part of the things you said is a part of the accusation.
>Waymo says he took 14,000 documents, while Kshirsagar and Radu Raduta took only a few. Waymo is now asking for Uber to turn over those stolen documents as part of the discovery process
My understanding is that part of the case is deciding if it is true that 14,000 documents were taken.
So again, the only known truth is that a single document was found on a guy's device.
What I am concerned with is that we all fall into the "Uber BAD, Waymo GOOD" trap simply because Waymo is kicking up a big shitstorm. Let the process of law happen, let the facts of the case arise, before we pass judgement.
The taking of 14,000 documents is actually assumed to be true currently for the purposes of this case. That's because Uber is in no position to deny it, only Lewandowsky could. And he can't deny it, because then he could no longer invoke his right to remain silent.
Of course, the documentation from Waymo/Google is also pretty strong apparently. Simply saying "I didn't do that" would be insufficient.
> Uber is in no position to deny it, only Lewandowsky could. And he can't deny it, because then he could no longer invoke his right to remain silent.
So he should give up his 5th amendment right to fend off an accusation? I don't think so, that doesn't sound like justice to me.
>documentation from Waymo/Google is also pretty strong apparently.
pretty
apparently
Come on man, you know what angle I'll go for here. Why are you letting that slip? The documentation aka evidence hasn't been seen yet because this case hasn't gone to court. None of the most relevant facts of the case have come to light.
I'm happy to hop on the "Uber is evil" train after the case, but it is painful to watch the normally quite rational people on HN fall for such a typical fallacy of justice.
>> Uber is in no position to deny it, only Lewandowsky could. And he can't deny it, because then he could no longer invoke his right to remain silent.
> So he should give up his 5th amendment right to fend off an accusation? I don't think so, that doesn't sound like justice to me.
That's how the 5th amendment works. It gives you the right to avoid self-incrimination, but if you invoke that right and there is other evidence against you then you'd better have some other way of refuting that evidence.
edit: given that even a simple question was downvoted, I can only conclude that there are likely a lot of Google employees downvoting anything that doesn't support Google's side in this dispute.
I downvoted you because–considering your strong opinions–it seems unlikely that this is a question asked in good faith. And even if, it is answered both in the article, as well as pretty much implied in the headline.
Yes it has - or at least enough that the judge found it compelling. I'd speculate it was something like download logs or something. From the reporting of the story I've read there doesn't seem to be anyone arguing that Lewandowsky didn't access the files. The question seems to be about if they made it to Uber.
I any case I don't think that is relevant to the question regrading the 5th amendment, and I suspect that is why you are being downvoted.
Lewandowsky and Uber's interests don't align here. It's pretty easy to see a scenario where Uber loses this case and then sues Lewandowsky.
Of course Uber wants Lewandowsky to give up his rights here. Lewandowsky has some pretty complex trade-offs to consider.
given that even a simple question was downvoted, I can only conclude that there are likely a lot of Google employees downvoting anything that doesn't support Google's side in this dispute.
I'm not sure how you figure that. I'd imagine it would be Uber employee's downvoting you, since your question really shows the big problems Uber is facing.
It's a civil case, not criminal. You only need a perponderance of evidence and if you invoke the 5th it's perfectly legal to make an adverse inference against you.
How would lawsuits work if that wasn't possible? Civil lawyers aren't able to use as many powers in evidence gathering as prosecutors. If uber's current tactic was allowed then every company would hire a designated employee who would have a paper trail of all the company's misdoings lead to him. That employee then pleads the fifth, the company does a shrug, and that's the end of the lawsuit
> So he should give up his 5th amendment right to fend off an accusation
You're missing the point. The fifth just says that you can't have your silence held against you. Once you answer the question by saying anything at all, then the answers can be used against you, especially if you're lying. I believe he's under oath in these proceedings.
> None of the most relevant facts of the case have come to light.
No, we're talking about the judge's statements, somebody who has seen all the evidence and is speaking as a professional jurist.
And unlike the rest of the Uber accusations, he has gone on record with these statements after seeing some fairly strong documented evidence. The fact that we haven't seen it yet is immaterial.
>So he should give up his 5th amendment right to fend off an accusation? I don't think so, that doesn't sound like justice to me.
Note that this is really complicated because this is a civil trial, with a different standard of guilt (preponderance vs. beyond a reasonable doubt), and where invoking the 5th Amendment can definitely be held against you. If this were a criminal trial- and he did it correctly- invoking the 5th Amendment could not be used against him, but in civil case, it most definitely can be used against you.
It's reasonable for it to be used against Mr Lewandowsky, but is it reasonable to use it against his employer?
Many people have their opinion on whether Uber is evil or not, but any employer that forces you to give up a right that Constitution affords you if you're potentially facing criminal charges sounds evil to me.
If the court wants him to testify in a civil case instead of asserting his 5th amendment right, they should find a way to guarantee immunity or that he won't face criminal charges.
OJ Simpson pleaded the 5th too and then later took the stand because the criminal case was litigated before the civil case.
Futher, specific to your question: the court doesn't care one way or another. They'll take his testimony if he wants to give it, and they'll have it even easier to make a decision without. A civil court is also unlikely to be in a position to grant any immunity.
Neither google nor the court care about the conflicts of interest on the defendants' side. I'd even agree with you that at-will employment is evil, and legitimately pleading the 5th shouldn't be enough to fire someone. But specifically in this case, Lewandowsky could be fired even if he were employed by the French government – he could then sue himself, and the findings of the google/uber trial would probably determine his claim of wrongful dismissal.
They claim that they knew this happened more than a year ago. The veracity of their logs, or at the very least the chain of custody of those logs, should seriously be called into question at this point.
They should have litigated against Mr. Lewandowsky after he founded Otto using documents they claim to know he stole more than a year ago.
> My understanding is that part of the case is deciding if it is true that 14,000 documents were taken.
It is, but that's a much later part of the case. The present part of the case is complying with discovery orders and considering preliminary injunctions, which does weigh what the parties are claiming and able to offer to support those claims, but does not involvethe kind of formal, detailed presentation and weighing of evidence that will happen at trial.
If enough engineers leave company A and join company B and all are working in the same field, I would expect at least some of those employees to have documents from their previous employer, even if only accidentally.
The fact that they've only found one document and only on the personal laptop of a single employee seems to suggest that they actually did a good job in due diligence.
Does anyone know how many former Waymo engineers now work at Uber?
Why's this guy being downvoted? In an era of "but her emails" are we really surprised that an employee's phone could have hundreds of for example corporate emails leftover, if not other documents depending on what tech they use.
Given that your example has essentially no similarity with the situation in question, why would you ask?
That is not a rhetorical question - I'm pretty sure you're capable of distinguishing the facts of the Waymo case[1] from "some documents ...[from] several years ago".
So, why?
[1] Meetings and other shady activity before quitting, logs of ~14k documents pulled, immediate aqui-hire, etc. etc. etc.
We have exactly as much actual evidence as what is in my situation.
Unless I am mistaken, all that I have read indicates that the 14k doc pull is a part of Waymo's accusation, AKA unproven. The immediate aqui-hire etc could just be a slimy poach.
How? A competitor is obligated by capitalism to do everything they can to level the competition. An accusation doesn't make fact.
This is such a classic justice tale I'm sure it's memorialized in fable. You get accused of witchcraft: well that's weird, you sure have a lot of herbs around, huh? (bay leaves and garlic) What's that giant kettle for? (making soup. With bay leaves and garlic) Etc. The mere accusation can turn normal things into another incriminating "fact" when that is just not the case.
> How? A competitor is obligated by capitalism to do everything they can to level the competition. An accusation doesn't make fact.
There's no principle in capitalism, nor law, that would require(!) you to level false criminal accusations against competitors. The opposite is true. If Google's case were found to be entirely without merit, and intentionally so, they'd be liable for criminal prosecution themselves.
Even the whole you-must-everyting-to-increase-shareholder-value-shtick is mostly a myth, by the way(mo).
An accusation with even a tiny bit of evidence supporting it can rightly be the basis of a conclusion of fact when the standard (as is generally the case in civil court) is preponderance of the evidence, and no evidence is presented on the other side.
No kidding. However, the present issues with a request for a preliminary injunction I require the court weighing, based on the information provided by the parties, a number of factors, including likelihood of success on the merits. As the "preliminary" part of the name hints, that's not a final assessment of the evidence, however deliberately wotholding exculpatory evidence now has adverse consequences.
Judge Alsup's comments on pages 14 and 15 of the transcript mirror the statement you're attempting to discredit. Perhaps it is a bit more concerning when the argument is made by the trier-of-fact himself.
Yeah, reading through pages 14 -> 20 Uber sounds like they're in some shit. Essentially Levandowski wants to keep his criminal 5th amendment protections at the same time Uber is keeping him as head of the division and the judge thinks it already looks likely he stole 14,000 documents. Uber's almost trying to launder his criminal protections into their civil case while he's still running the department they accused him of stealing the IP for?
IANAL but this does not sound good:
Judge: "And if [Levandowski] doesn't testify to that at the deposition, well, I guess Uber -- you know, Uber is -- if you think this is going to help you, my preliminary view of it is it's not going to help you; and that if there's not a clear-cut path to showing that those 14,000 documents weren't used, then you're looking at a preliminary injunction."
His choice isn't Uber's. True, and legitimate. But Uber wants him to be able to make that choice, and still continue as the head of Uber's self-driving program. That's what the judge is very unsympathetic to.
Not talking about claiming it, but about "laundering it" as the parent comment put it. And in fact as you say, it's being interpreted as making excuses more than respecting the choice of their executive.
Seems to me that Alsup is saying he is trying to remain open to the possibility that Uber is not guilty, but that Uber's behavior so far is making it really hard to do that, and it better do something better real soon or he is might well exercise the nuclear option, namely shut down its self-driving program.
I'm not particularly committing to either hypothesis right now. If Uber is indeed screwing around with discovery I would imagine they're going to end up in very big trouble. I for one would pretty much consider that prima facie evidence every executive even remotely involved in that decision, including simply being aware of it, should be immediately fired by the shareholders and everything possible clawed back from them. I don't consider that out of the question, but it's a pretty serious accusation on its own. Uber's kinda big to get away with that sort of shenanigan.
Then again, a large part of Uber's success has been built upon shenanigans. It seems likely that they might develop an arrogance towards the legal system, after years of playing chicken with it.
Unfortunately for them, the combination of Google alleging massive theft, the issues around Applebaum, and the high profile exit of some of their execs, none of that is likely to work.
I certainly don't know the details, but it's hard for me to see a resolution to this where Uber isn't in trouble. Travis Kalanick has publicly stated that self-driving cars are necessary for the future of Uber, and anything that even puts a damper on that (in addition to all the talent they've already lost) is enough to likely kill them as - according to leaked financials - they are already hemorrhaging money.
I've never been bullish on Uber, but this is really bad.
1) If the suit is true, then it will almost certainly zero out the investors, and destroy the careers and fortunes of the executives.
2) Uber has a long history of keeping and promoting executives who lack integrity and show a willingness to break the law.
As such, it is reasonable to assume that Google is making a good faith effort to argue the strongest possible case on their side; and that Uber is likely to lie, cheat, and steal to make the strongest possible case on their side.
Good, I'm happy he still works there. People should not be fired because of accusations. It opens the door for abuse of the justice system.
Let's not fall into the trap of assuming Waymo is the "good guys" and Uber is the "bad guys." Leveling an accusation isn't hard. Anybody can sue anybody as long as you have enough evidence or a good enough argument to convince a judge to hear the case.
Leveling an accusation isn't hard, but making somebody plead the fifth in a civil case where they haven't done anything wrong is. When one of your executives is refusing to cooperate with an internal investigation because it might expose him to criminal liability, that's a little past "From my point of view, Waymo is evil."
Making somebody? How should he have reacted? What exactly is the point of pleading the fifth if by doing so you incriminate yourself?
I plead the fifth when I get pulled over, am I a criminal? I don't understand. It seems to me the absolute smartest course of action - place the burden of proof entirely on the opposition, give them nothing to work with you don't have to.
You seem to have missed the point that this is not a criminal case, so the Fifth Amendment doesn't apply here. By pleading the fifth, he's not just declining to testify — he's claiming that the result of cooperating here would open him to a whole different criminal case.
In other words, nobody is saying that he has incriminated himself by pleading the fifth. But in Uber's civil case, he has created some very bad implications and greatly worsened their position, and it wouldn't be unreasonable for them to see him as a liability at this point. This is not a mere accusation by Waymo — his actions indicate that there's something going on here.
The problem is: they have enough. Like a logging system with documented external audits and the sworn testimony of the engineers that run it, and it shows him downloading those documents.
And the fifth amendment protects you from "adverse inference" in criminal proceedings. It doesn't protect you in a civil suit, nor does it bind me or others in this thread or the general public to conclude that yes, Levandowsky's trucking company is probably heading for a wall.
Nobody seemed to mind when Shkreli plead the fifth all the way through a congressional hearing, not sure how this is different. Other than the obvious fact that it's not a congressional hearing.
This argument doesn't follow. Your link explains why frivolous lawsuits are more of a myth than most people believe. You then proceed to lambaste people for people bowing to lawsuits which, your source contends, are probably more reasonable than you think.
I don't really understand what you point out, and I believe this is the misunderstanding:
> You then proceed to lambast people for people bowing to lawsuits
GitHub and other cases aren't lawsuits, that's my point: They're just people being fired without fair trial. It doesn't prove there was harassment/theft/conflict/etc. What I'm saying is we should apply the presumption of innocence and not demote people preemptively, but help the real justice system investigate whether accusations are true.
Uber has shown little adherence to principle but a great fondness for game theory. Game theory does not yield a lot of positive reasons why Uber would be backing Lewandowsky.
> from any old baseless accusation
The accusations may be false, but they are not baseless. They're so strong, in fact, that Uber is probably going to be hit with a preliminary injunction. Baseless accusations, by definition, would not have brought Uber to this stage.
Oh I see why my comment perturbed the collective conscious, but I wasn't making any statement on the merit of the accusation, just his continual employment and how impressive that is.
I was saying that most people get fired for any accusation whether they have merit or not.
This employee has an accusation that has substantial merit and is still employed. So thats actually broadcasting confidence amongst current and future employees regardless of what kind of thing gets slung their way.
But the obvious explanation (and the one Occam's Razor points us to) is quite different: That Uber would fire Lewandowsky if they thought they could benefit, but they believe standing behind him will minimize their legal liability and/or maximise their chances of benefitting from the purchase of Otto. A normal guy accused of something baseless doesn't have any pull on Uber and their top exec's; Lewandowsky might.
In other words, your conclusion is that "if they're standing behind this guy when everything is pushing them to fire him, they'd NEVER fire a normal guy!" A better conclusion is probably "if they're standing behind this guy when everything is pushing them to fire him, there must be something really strong forcing them not to. A normal guy would still be screwed, because they don't have...whatever Lewandowsky has."
I mean, obviously we don't know what Uber's top execs are thinking, or what really happened with Lewandowsky and Otto. But we know a bit about how Uber think in general, and we've seen some past decisions they've made. Do you really argue selfless altruism and employee loyalty is the most likely explanation here?
Interesting statement here from the judge and Uber's attorney (Gonzalez). Gonzalez worked for Alsup at some point in their careers.
Judge Alsup: Look. I want you to know I respect both
sides here. And everyone knows I know Mr. González from the
days when he was a young associate and I was a partner, and he
was working for me on cases. And he has gone on to be a much
better lawyer than I ever was.
But you shouldn't have asked for in camera on this. This
could have all been done in the open. I'm sorry that
Mr. Levandowski has got his -- got himself in a fix. That's
what happens, I guess, when you download 14,000 documents and
take them, if he did. But I don't hear anybody denying that.
I just realized how stark the prisoners dilemma here between Uber and Levandowski is. Based on what Alsup was saying today that if Uber can't produce counter-evidence by May 3rd, they are staring down the barrel of a preliminary injunction, they're damned if they fire him and damned if they don't.
1. Levandowski remains at Uber. Keeps asserting his fifth amendment rights, which means that Uber can't present evidence to thwart Googles theft claims. Judge files a preliminary injunction, sad trombone, no self-driving cars for Uber.
2. Uber fires Levandowski. Now, he has no reason to protect Uber, the incentives for him are to avoid criminal prosecution. He could even do a deal with Google or a prosecutor to cooperate in the civil case in exchange for avoiding criminal prosecution. Uber is then likely to lose the actual case, sad trombone, no self driving cars for Uber.
As others have pointed out, the stakes for Uber are incredibly high, they missed the china train and if they can't catch the self-driving-car train, then their $50+ billion valuation is up in smoke.
This story is fascinating for tech people everywhere and we should all pay attention.
We all have big dreams of starting our own company some day (I know do) and many of us work for big corporations that would rather we never go anywhere and work for as little as possible. (admittedly the markets are forcing them to pay us a lot but they aren't doing it out of good will).
The outcome of this will teach us all very valuable lessons. I can't be the only one who is a little paranoid that if I start my own shit I'll be sued or that I may even be sued for some of the side projects I'm working on even though I've never taken any code or resources from my company.
> The outcome of this will teach us all very valuable lessons.
Lesson #1: Don't steal.
> I can't be the only one who is a little paranoid that if I start my own shit I'll be sued or that I may even be sued for some of the side projects I'm working on even though I've never taken any code or resources from my company.
Lesson #2: If someone accuses you of theft, deny it instead of pleading the fifth.
Assuming their accusations aren't truthful, of course.
> Lesson #2: If someone accuses you of theft, deny it instead of pleading the fifth.
Actually, you shouldn't say anything and get a lawyer. Then listen to them. Pleading the fifth is expressly not an admission of guilt however it is portrayed in the media - often times it is necessary even for innocent parties to invoke. I am not a lawyer and this shouldn't be construed as legal advice.
> Actually, you shouldn't say anything and get a lawyer
Which is exactly what Levandowski did. And then, under advice from his lawyer, he plead the fifth.
> Pleading the fifth is expressly not an admission of guilt
In criminal cases.
In civil cases, you can still plead the fifth without facing contempt. But the jury is free to draw its own conclusions. As is the judge. If you don't believe me, see the transcription of Alsup's tounge lashing.
> In civil cases, the jury is free to draw its own conclusions
Actually, in the US, whether or not the jury is free to draw negative inferences from invoking the fifth varies by which jurisdictions law controls (the feds have one set of rules, states each have their own, and their are rules for when state and federal issues are in play in the same case.)
And, in any case, there is a difference from a negative inferences drawn from your failure as a result of your agent's invocation of the Fifth (e.g., Uber based on Levandowski's actions) and a negative inference against you for your invocation of the Fifth.
Thanks for the clarification. I.e., the fifth itself doesn't protect you from negative inference in civil cases, but some jurisdictions provide that protection?
In any case, I stand by my lesson: avoid actions that lead to situations where these distinctions matter.
Sorry, but I don't buy it. Of course you should talk to lawyers first, just as Levandowski did.
But at some point, if you're truly innocent, I'm sure the best lawyers in the business could find a way for you to say "I'm not guilty" without hurting yourself.
> But at some point, if you're truly innocent, I'm sure the best lawyers in the business could find a way for you to say "I'm not guilty" without hurting yourself.
In a perfect world, being actually innocent would mean zero risk of conviction of a crime with a vigorous and dedicated defense, no matter what the prosecution did.
We don't live in a perfect world, and it is, in fact, quite possible for a situation to exist where you are actually innocent and on-balance have better expected results by invoking the Fifth.
Even accepting potential negative consequences that may have outside of the criminal realm.
But I have a hard time imagining a specific scenario where you're accused of IP theft and a lawyer can't find a way to say "my client is not guilty of IP theft" without compromising their client.
At the very least, at some point, the client is going to have to enter that "not guilty" plea.
> But I have a hard time imagining a specific scenario where you're accused of IP theft and a lawyer can't find a way to say "my client is not guilty of IP theft" without compromising their client.
Okay, how about where they actually physically have the documents that are the subject of the case, cooperating with discovery would reveal them, but they didn't actually use them in the new job or take them with intent, even though the other people accused alongside did actually steal smaller numbers of documents, and use them in the new job without your clients knowledge, so that your only real hope besides gambling on a jury's inferences of intent is that a criminal case is never initiated because your clients possession of the information doesn't come to light.
> At the very least, at some point, the client is going to have to enter that "not guilty" plea.
A plea is non-testimonial, does not open up cross examination, and does not open up threat of perjury. And, no, they don't have to do that if criminal charges are never filed, which is exactly what you are hoping for if you are invoking the Fifth in other circumstances because of potential future criminal prosecution.
My assumption is that intentionally copying IP onto a personal device and removing that device from the office -- regardless of any actual intent to use that data -- is still theft. Which would make the former employer's claims truthful.
It's super unclear to me how you would accidentally retain a copy digital documents...?
Like I said, it's hard to imagine this scenario actually happening. But for good measure:
Lesson #3: Leave work at work and startup at home.
I actually did something like this long ago (pre-2000) - emailed a set of detailed and very confidential sales spreadsheets to my personal email. It wasn't "theft" (and AFAIK nobody even noticed). It was so I could convert the spreadsheets to a proper Access database on my own time, since that's not what I was paid to do but it made my job a lot easier.
I would probably have been in a world of shit if anything came of it, though.
I've worked for employers who were 100% convinced this is theft, even without some intent to use that information, and even discussed very similar hypotehticals in on boarding.
Right, that's why I mentioned how long ago this was because very few employers were as Orwellian about this stuff as they are today. Calling it theft was hyperbole then and is hyperbole today.
I'm actually not sure it's theft. It might violate confidentiality agreements, and using those files outside the scope of the former employer might constitute unlawful use of trade secrets, but simply copying the files and bringing them home may not actually be a criminal act.
(I'm just putting this out there because I don't actually know, and hope someone else knows the answer. Not attempting to be authoritative.)
You can't selectively plea the fifth. You can't go into court, say things in your favor, and then clam up and plea the fifth when things get dicey for you. As soon as you start testifying in your defense you have waived the right and you'll be held in contempt if you take the fifth afterward. It would be unusual, but you can be imprisoned indefinitely without a trial/conviction until the judge decides to release you or you resolve the issue that put you in contempt.
This bit is different: Levandowski has not been charged with a crime. There is no plea, guilty or not guilty, for him to enter. He is not even the defendant in the civil suit.
He (or his lawyer) believes that talking about these documents could open him to criminal liability (whether he's guilty of anything or not), so he is choosing to remain silent.
Now, if other evidence is unearthed and Levandowski is indeed charged with a crime, and it made it to trial, that would be his time to enter in a plea of not guilty.
Right, things are a bit confused at the moment because the parent's hypothetical is so close to the case at hand.
I'm addressing parent's concrete hypothetical -- where the person accused of theft is the ceo of the company.
> that would be his time to enter in a plea of not guilty.
I think I'm wrong here, actually :)
dragonwriter provides a compelling explanation, elsewhere in this thread, for why entering a "not guilty" plea is very different from stating "I'm not guilty" outside the context of entering a plea.
> Lesson #2: If someone accuses you of theft, deny it instead of pleading the fifth
What is the clear benefit to denying rather than pleading the fifth? I know from Psychology that telling a jury to disregard information makes it seem more valuable and true, but that's more speculative than what you seem to have seen.
> What is the clear benefit to denying rather than pleading the fifth?
You open yourself up to perjury charges as well as the charges you were trying to protect against with the Fifth, plus you open yourself to unlimited cross-examination and impeachment of your testimony.
I think I see: You were comparing the GP to someone in Kalanick's position, not to Levandowski. I don't think Uber itself has pleaded the fifth - though they've made an argument related to pleading the fifth - so I misunderstood you.
I would hold off on taking any lessons at all until it's had a few years to work its way through the courts: News has the problem that outrage generates clicks and views. The question of "Should a company distance itself from executives accused of a crime by a competitor?" seems better served by referring to decades of case law, than by reacting to any news article.
If you work for a company, and you want to start a parallel project/business, some key points are:
a. Do not start a side project/business in the VERY same industry or about the VERY same product of your current employer (like in this case, Waymo/Otto/Uber).
b. Do not use IPs, code, equipments, facilities, etc of your current employer (like in this case)
c. Do not solicit most of your co-workers to quit and join you
d. Do not download documents from your employer, save them on personal storage and then resign abruptly from the company
I have started several other businesses while working at large companies - if you don't get anywhere close to a/b/c/d you should be very fine.
Related to (a), if you do want to start your side business in the same industry as your employer, you must clear it with them -- in writing -- first. Yes, there are many many situations where they will laugh and say "no", but you never know.
For example, I work at Twilio. Let's say I hypothetically have some ideas of things to build on top of Twilio that I could turn into a side business. Maybe these things are features that Twilio might want to build into the platform, or maybe not. If I wanted to start a side biz doing these things, it'd be in my best interests to clear it with Twilio first. They might say "that's out of the scope of anything we'd ever build into our product, so go ahead". Or not.
You don't want to find out several years later, when you're becoming successful, that your old employer has decided to stake a claim on what you're doing.
> We all have big dreams of starting our own company some day
Speak for yourself. I've got absolutely no dreams whatsoever in starting my own company. I go to work, do good work and put in my hours. I get paid nicely above average salary so that I have no particular concerns from a financial perspective. Why would I want the stress and hassle of running my own company?
This isn't really a gray area. He stole a bunch of documents on the way out, founded a new company based on IP he didn't own, and then sold it to another company. (assuming google's allegations are true)
Well, the evidence that Google has gathered to suggest that Levandowski did copy the documents and then tried to cover his tracks is pretty persuasive, so it might be safe to assume that part of it is true.
However, whether or not he used those documents in an inappropriate manner in Otto or Uber is still up for debate.
A lot of people seem confused by the idea that a party can request personal documents someone else has.
Just like in criminal land, civil land has subpoenas.
Parties can issue subpoenas for most things to other parties.
In federal court, civil subpoenas are covered by Federal Rules of Civil Procedure rule 45.
I think also in this case it's a matter of Uber telling its employees, "hey, if you have any of this stuff on your personal laptops, you'd better give it to us" (with the perhaps-implicit "or we might fire you" on the end of it). Two of the employees are playing ball, but Levandowski has clammed up (and Uber, to the judge's amusement, is allowing him to do that without repercussions).
Uber firing you may not be the worst of it.
You can end up in jail for contempt until you comply:
"The rule is also amended to clarify that contempt sanctions may be applied to a person who disobeys a subpoena-related order, as well as one who fails entirely to obey a subpoena. In civil litigation, it would be rare for a court to use contempt sanctions without first ordering compliance with a subpoena, and the order might not require all the compliance sought by the subpoena. Often contempt proceedings will be initiated by an order to show cause, and an order to comply or be held in contempt may modify the subpoena's command. Disobedience of such an order may be treated as contempt"
Obviously, can't hold you in contempt (or at least, can't punish you) if you validly took the 5th, but ...
Is there anything one can do to reduce the risk of a disovery fishing request on my personal devices?
Or is simply working for a company being sued sufficient to be compelled to produce my personal devices?
For example, if I stated that my personal phone does not contain any work accounts, and does not access the work network, instead relying on 4G? Or would I have to leave my smartphone at home? Or would not even that be sufficient? :/
"Is there anything one can do to reduce the risk of a disovery fishing request on my personal devices?"
If it's fishing, you can push back. If it's reasonably targeted to result in actionable evidence, probably not :)
"Or is simply working for a company being sued sufficient to be compelled to produce my personal devices?"
Probably not quite without a good reason.
To be clear, it's not just companies.
If you were, for example, getting divorced, acrimoniously, expect to have your personal devices subpoenaed (my ex was a family lawyer, this happened all the time)
"This entire concept is deeply troubling to me."
Remember that the goal of the civil justice system is not to let people hide things.
They just want to resolve the disputes.
The best way is "put all evidence and cards on table".
So they try to do that.
In cases where it is embarrassing or whatever, you can get protective orders on who may have access, etc.
But you should fully expect, in any lawsuit, company, your neighbor, whoever, that if they have good reason to believe you have relevant evidence on your personal device, you'll be forced to produce it.
If you don't have relevant evidence, i would push back hard.
But also note. Misuse is strongly actionable:
"(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply.
...
Paragraph (c)(1) gives specific application to the principle stated in Rule 26(g) and specifies liability for earnings lost by a non-party witness as a result of a misuse of the subpoena. No change in existing law is thereby effected. Abuse of a subpoena is an actionable tort, Board of Ed. v. Farmingdale Classroom Teach. Ass'n, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), and the duty of the attorney to the non-party is also embodied in Model Rule of Professional Conduct 4.4. The liability of the attorney is correlative to the expanded power of the attorney to issue subpoenas. The liability may include the cost of fees to collect attorneys’ fees owed as a result of a breach of this duty."
You have this backwards.
They don't ask for it and then go looking to see what's relevant, they figure out what relevant stuff it has and then ask for it.
If they believe and can show it has evidence relevant to a lawsuit, and you have no 5th amendment privilege to assert in it (IE it is not evidence of a crime, etc), then yes, you can generally be required to produce it.
You can certainly try to get it quashed, but if it really does have evidence relevant to the lawsuit, ...
yeah you are probably going to be forced to produce it.
This resolved to the Judge ordering a deeper search:
"[The Judge] told Uber to search using 15 terms provided by Waymo, first on the employees’ computers that had already been searched, then on 10 employees’ computers selected by Waymo, and then on all other servers and devices connected to employees who work on Uber’s LiDAR system."
Seems interesting that there's not a more comprehensive system or way to search for these since Google is clearly in possession of the specific documents they claim are stolen.
The way they're continuing the Judge's order to look for "15 terms" almost makes it seem like the extent of the original search was tied to file name or document titles or something?
They are probably very specific search terms that are repeated in the documents and might be unique enough to show up in any documents created by someone plagiarizing the Waymo docs. The fact that 31,000 other documents also contain these phrases but are "not substantive" makes it seem like the search terms are somewhat generic but definitely appear in the Waymo docs. Uber might have ruled out all of those other docs by just looking at the dates the docs were last modified. If they are older than when Levandowski or any of the other people previously employed by Waymo joined Uber, then they can probably be vetted as original IP.
Are there any opensource autonomous/driverless car projects with substantial momentum. This seems like something so foundational to the next 50 to 100 years that it needs to be 'owned' by everyone.
> This seems like something so foundational to the next 50 to 100 years that it needs to be 'owned' by everyone.
This is equally true of climate change and possibly sustainable energy. Unfortunately, our current political and corporate structures don't seem set up to handle it well.
It seems to me that even if Uber proves that Levandowski never downloaded the files to Otto, much less Uber, they still are in deep trouble unless they can prove that he never laundered the information in them through his brain to help Otto or Uber develop their technology.
I don't really get how the orders to search for documents on employee-owned devices are possibly enforceable. What stops employees with incriminating data from just throwing their devices in a river before they can be searched?
Shucks, we could cob-ble together an amaizing proof-of-concept to bag a bunch of investors, although those folks can be salty, so they might need buttering up.
Nah, the real money is being a MaaS provider. (Marketplace as a Service). Why try to strike gold when you can just get rich selling the gold-rushers some picks and shovels? It shouldn't be much more than an API and some customizable matching algorithms (e.g. proximity or pricepoint or keywords and maybe a scheduler or two).
I'm only half-joking in that I wouldn't be surprised to find out this is a thing already.
Nah, too niche. Why try to strike it rich selling picks and shovels to gold-rushers when you can get richer doing logistics for those pick-and-shovel merchants? MaaSaaS is where it's at.
It seems like Uber has to prove a negative here - because Google has evidence Levandowski took the files they need to show they don't have theM? Or that the files weren't involved in their self driving IP? Not sure how they're supposed to do that.
You come up with a discovery plan that both parties can agree with (or one that's imposed by the court). You figure out the scope of the search (which DBs, hard drives, phones, etc.), the search terms to run, etc. You do depositions of employees to figure out who and where else potentially relevant documents can be. Obviously you can't prove a negative, but you end up doing an exhaustive search.
What Google really wants is to prove that Uber is using the technology in the product it is developing. So the question is how Google will go about trying to prove that, and what Uber would need to do to prove it is not.
Yeah, I think it's quite likely that the patent charges, for which how Uber/Otto got to the designs is immaterial (except in terms of enhanced penalties for willfulness, which Levandowski's knowledge, with or without the documents, may be enough for), may be the real killer.
I'm curious how Uber (a private company) got access to someone's personal laptop. If my employer demanded access to my personal machine I'd tell them to pound sand.
DOJ doesn't always go after trade secret cases, especially if there is adequate civil remedies. But even when they do, they often let the civil plaintiff do the heavy lifting and then come in with a criminal charge using the information obtained by the plaintiff.
Google probably can't wait until a long criminal trial happens.
Civil discovery is easier than criminal investigations.
You can plead the 5th in a civil case in the US, but depending on the jurisdiction the jury and judge may be allowed to hold that against you (which they are not supposed to do in a criminal case). This is even more interesting because Levandowski is pleading the 5th, and Uber is asking for it to not be held against Uber.
Nope, it's just between Waymo and Uber at the moment, and it's just a civil case at the moment.
Levandowski however has criminal lawyers here because the judge's court order for documentation may bring up something that makes Levandowski a criminal, whatever it is.
i have a very very bad feeling that one day in a distance future employer will be demand your sign over anything that come from your head over to them before they will offer you job.
I think the logic used to go "Don't comment if you don't have anything to add to the discussion". So people downvote comments that should have just been upvotes in the first place.
"If your account is less than a year old, please don't submit comments saying that HN is turning into Reddit. It's a common semi-noob illusion, as old as the hills." https://news.ycombinator.com/newsguidelines.html
There is one exception: If your account is exactly one year old, and a little cake icon appears next to your name, then are you allowed to submit exactly one comment saying that HN is turning into Reddit.
Hilarious - I'd never seen that before! Another interesting tidbit[0]:
> Please don't submit comments complaining that a submission is inappropriate for the site. If you think a story is spam or off-topic, flag it by clicking on its 'flag' link. If you think a comment is egregious, click on its timestamp to go to its page, then click 'flag' at the top. (Not all users see flag links; there's a small karma threshold.)
They are suing Uber because they claim it is using the technology in their product. Since Uber bought Levandowski's company, it is morally equivalent to Uber having hired Levandowsky to spy on Google.
"If your guy is involved in criminal activity and has to have criminal lawyers of the caliber of these two gentlemen, who are the best, well, okay they got the best. But it’s a problem I can’t solve for you. And if you think I’m going to cut you some slack because you’re looking at—your guy is looking at jail time, no. They [Waymo] are going to get the benefit of their record. And if you don’t deny it—if all you do is come in and say, “We looked for the documents and can’t find them,” then the conclusion is they got a record that shows Mr. Levandowski took it, and maybe still has it. And he’s—he’s still working for your company. And maybe that means preliminary injunction time. Maybe. I don’t know. I’m not there yet. But I’m telling you, you’re looking at a serious problem."
...
"Well, why did he take [them] then?". "He downloaded 14,000 files, he wiped clean the computer, and he took [them] with him. That's the record. He’s not denying it. You're not denying it. No one on your side is denying he has the 14,000 files. Maybe you will. But if it's going to be denied, how can he take the 5th Amendment? This is an extraordinary case. In 42 years, I've never seen a record this strong. You are up against it. And you are looking at a preliminary injunction, even if what you tell me is true."
Uber is having a very bad day when a Federal judge starts talking like that. A preliminary injunction looks likely. If Uber can't find anything, this goes against them. Nobody has denied that Levandowski copied the files. Uber paid $600 million for Otto's technology and people. Even if the files didn't make it to Uber's computers, Waymo can probably get a preliminary injunction shutting down much of Uber's self-driving effort. Then Uber gets to argue that their technology is different from Waymo's. It's going to be hard to argue independent invention when all the people are from Google's project.