Uber vs. Google self-driving tech suit revs up as exec takes the Fifth
SAN FRANCISCO — A potentially pivotal lawsuit between Uber and Alphabet's Waymo over allegedly stolen self-driving vehicle sensor technology just took another screeching turn.
Anthony Levandowski, a former Google employee who founded the now Uber-owned self-driving truck company Otto, invoked his Fifth Amendment right to protect himself from self-incrimination Wednesday, according to a transcript of the private court hearing reviewed Thursday by USA TODAY.
Miles Ehrlich, one of Levandowski's two attorneys, said he had advised the strategy based on "the potential for criminal action."
But the engineer's refusal to turn over documents in the case — which hinges on Waymo's contention that key elements of Otto's tech was built off 14,000 documents stolen by Levandowski shortly before he left Google — may not delay Waymo's request for a temporary injunction that would prevent Uber from using its intellectual property.
Such an injunction, slated for a May 3 hearing, could stall Uber's ambitious self-driving car tests in Pittsburgh, San Francisco and parts of Arizona.
"If you think for a moment that I'm going to stay my hand because your guy is taking the Fifth Amendment, and not issue a preliminary injunction to shut down what happened here, you're wrong," U.S. District Court Judge William Alsup said, according to the transcript.
Judge Alsup, who taught himself to program while adjudicating a 2012 patent trial between Google and Oracle, was in fiery form.
When Uber attorney Arturo Gonzalez said that Uber would be able to present by Friday's deadline documents "responsive to the Court's order," Alsup bristled.
"That's a cleverly worded thing," said Alsup. "I didn't just fall off the turnip truck. I know what you're telling me. That means you're not going to produce everything."
Gonzalez countered that Uber was not in possession of all the documents noted in Waymo's complaint and in the motion for a preliminary injunction. That's when Alsup asked if Levandowski had the rest of them, only to hear from his lawyers that he would be taking the Fifth.
A Waymo representative declined to comment on the private hearing.
Uber's associate general counsel Angela Padilla said in a statement that the company "looks forward to our first public response laying out our case on Friday, April 7. We are very confident that Waymo's claims against Uber are baseless and that Anthony Levandowski has not used any files from Google in his work with Otto or Uber."
In its lawsuit, Waymo charged that Levandowski had surreptitiously downloaded 14,000 documents related to its proprietary LiDAR — light detection and ranging — sensor technology shortly before leaving the company to start Otto. LiDAR helps a car see its environment, along with cameras and radar.
Last August, just months after its founding, Otto was bought by Uber for $670 million and Levandowski was tapped to run Uber's nascent self driving car project.
If Waymo's claim proves true, it would seriously impact Uber's rapidly developing autonomous car efforts at a time when the ride-hailing company also is dealing with employee charges of sexism that have led CEO Travis Kalanick to order an internal investigation and search for a chief operating officer.
Although Uber had slammed the February suit brought by Waymo as "a baseless attempt to slow down a competitor," the case has quickly put careers and autonomous car bragging rights in jeopardy.
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Google started its program nearly eight years ago, only recently renaming the effort Waymo as it moves closer to commercializing the valuable software that it plans to license to auto manufacturers. Waymo already has an agreement with Fiat Chrysler to produce 100 Pacifica minivans driven by Waymo tech.
Although Uber's self-driving program is only a few years old, Kalanick's typically no-holds-barred approach quickly led to the establishment in 2015 of an autonomous car team consisting largely of robotics experts raided from Pittsburgh's prestigious Carnegie Mellon University.
Last year, Uber claimed another victory last August in buying Levandowski's fledging startup Otto — which successfully tested an autonomous semi-tractor filled with beer on a 100-mile highway run in Colorado last fall — and has been picking up Pittsburgh passengers in safety-driver equipped self-driving Ubers since last summer.
But things have not gone well for Uber in recent months. In December, just hours after rolling out its self-driving cars in San Francisco, Uber sent its fleet packing to Arizona after California's Department of Motor Vehicles told the company it had not requested the necessary permits.
In January, a #DeleteUber social media campaign caught fire after the company was perceived to be on the wrong side of President Trump's controversial immigration ban, which led to Kalanick bowing out of a Trump economic council.
February 19, former Uber engineer Susan Fowler wrote a blistering account of her sexist ordeals at Uber, which precipitated a crisis that continues to embroil the company. On Feb. 23, Waymo filed its suit alleged theft of LiDAR tech.
On March 16, Uber countered that it should be not party to the lawsuit and instead argued that it would request that Waymo seek binding arbitration with Levandowski over the matter since those were conditions of his employment contract with Google at the time.
Earlier this week, Uber's lawyers filed a motion that appeared to buttress that request, noting that back in the fall Waymo had sought arbitration with Levandowski because he had used confidential company salary information as leverage to poach employees.
Arbitration typically is less costly than going to trial, but more significantly those disputes are not hashed out in a public setting. Given its myriad issues, Uber would likely prefer to minimize the impact of a court trial. That desire came up in Wednesday's hearing.
Uber attorney Gonzalez argued that if the court granted the petition to go forward with binding arbitration instead of a trial, then it would be freed up to provide "trade secrets" that would remain "in confidence. It's a big difference."
"Ridiculous," said Alsup. "It's not in confidence. The United States Attorney can go subpoena information all day long."
"Well, Your Honor, at least it's not in the public where it's going to be on the front page of The New York Times the next day," countered Gonzalez.
Ultimately, the testimony of Levandowski in the matter at hand could come down to whether the case is heard in court or in arbitration, with the latter scenario being the more likely instance in which the embattled engineer would appear.
Regardless of Levandowski's fate in this prickly matter, Uber's main challenge remains, as Gonzalez clearly outlined to Alsup, "to demonstrate to you that we are not using any of these things that they say he may have taken."
Said Alsup: "Maybe you can convince me of that."
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