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Waymo Jury May Be Warned Uber Lawyers Didn’t ‘Come Clean’

Aug. 17, 2017, 2:10 PM

By Joel Rosenblatt, Bloomberg News

Uber Technologies Inc. may pay a price for withholding key evidence from Waymo when their trade secrets dispute goes to trial -- the judge proposed letting the jury know the ride-hailing company’s lawyers didn’t “come clean.”

“I’m inclined to let the jury know what happened here,” U.S. District Judge William Alsup said Wednesday at a hearing in San Francisco, speaking to one of Uber’s lead lawyers. “You misled the judge time and time again.”

Alsup said he agreed with Waymo that Uber didn’t turn over the evidence by court-ordered deadlines, adding that he hasn’t made up his mind about what to tell jurors about the role Uber’s lawyers played. Since the case was filed in February Alsup has repeatedly expressed frustration with lawyers at Morrison and Foerster, or MoFo, for making sweeping arguments that information sought by Waymo is protected by confidentiality provisions and out of its adversary’s reach.

Waymo continues to hunt for hard evidence that the driverless car technology it claims was downloaded by its former engineer, Anthony Levandowski, was used by Uber. Levandowski, who went on to become the head of Uber’s robocar project, has refused to testify in the case, asserting his constitutional protections against self-incrimination. Uber fired him in May.

MoFo lawyer Arturo Gonzalez told Alsup that complying with court orders to turn over information to Waymo, protecting Uber’s confidentiality, and not stepping on Levandowski’s rights is akin to navigating a “minefield.” Gonzalez noted that Levandowski -- but not Uber -- appealed Alsup’s ruling requiring Uber to turn over a report containing key evidence in the case.

Uber is preparing for the possibility an appeals court will uphold Alsup’s ruling, resulting in a “dump” of information Waymo is looking for, Gonzalez told the judge. “They’ll have everything they want to see,” Gonzalez said.

Uber has maintained all along that it never saw the 14,000 files Levandowski allegedly downloaded. Gonzalez said Wednesday there “will never be a day” when Waymo finds the information at Uber or MoFo.

“You will be a good witness,” said the judge, who last month told MoFo lawyers to expect the firm will be a “character in the story to be told to the jury.”

Alsup directed Waymo to draft “neutral” instructions to be read to the jury explaining MoFo’s withholding of information. He indicated he will issue a ruling later.

The case is Waymo LLC v. Uber Technologies Inc., 17- cv-00939, U.S. District Court, Northern District of California (San Francisco).

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