Uber finds one allegedly stolen Waymo file on an employee’s personal device
techcrunch.com
techcrunch.com
"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.
I vote Alsup for Ginsberg's seat.
... who, purportedly, hated his name :-P
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.
(N/W-European here) Is that really a thing that US citizens pay attention to?
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.
" If his truck driving company gets shut down because of theft of trade secrets on a record that he's not willing to deny, too bad for him. Too bad."
Edit: I'd like to add that the Crimetown podcast about Providence, Rhode Island is fantastic.
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.
How thoughtful to promote young lawyers like that! Nice judge.
So judges can be assigned cases they are interested in or suited for through that system.
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.
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.
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.
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!
"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.
[1] https://leginfo.legislature.ca.gov/faces/codes_displaySectio....
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.> And you also have the authority to say, "And if you don't do that, you're fired."
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.
Yes, and this case is between American parties, under American law, in the U.S. (of America) District Court for the Northern District of California.
My boss could fire me for disliking the color of my T-Shirt this morning.
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.
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.
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 am guessing they do have the ability to fire on those grounds.
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.
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.
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.
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.
(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.
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.
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.
As part of discovery, Uber searched personal computers of some employees (ones who weren't, to be sure, asserting the Fifth.)
It's kind of their problem if their own executive most central to the case won't let them do that; that's Judge Alsup's point.
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.
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.
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.
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.
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 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.
The most important four words here.
> What if Levandowski has the files on his home
> computer or something but they never touched Uber's
> system?
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.
How does this work???
Though not all Google employees sign this, just the Project X experimental ones.
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.
Coming from this background the extremely lax privacy protections guaranteed for US based services are always somewhat creepy.
On the other hand, whenever someone questions these lawyers about such clauses, they always tell you, ha, this is completely normal, it's boilerplate.
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.
*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.
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.
I'm not a lawyer, nor am I from the USA. I've heard of the fifth, but never fully understood it in scenarios like this.
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.
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.
(IANAL)
Didn't they earlier hire away CMU's self-driving car folks?
"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."
"Okay son, go search again."
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'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.
/meta
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'".
Right, it's a classic example of survivorship bias.
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."
> 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)
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.
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:
http://newenglandinhouse.com/2015/06/09/default-judgment-aff...
Furthermore, the lawyers in question can be disbarred:
https://apps.americanbar.org/litigation/litigationnews/civil...
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.)
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".
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).
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"
[1] https://en.wikipedia.org/wiki/News_International_phone_hacki...
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).
Edit: Please find the court reporter transcript here: http://www.documentcloud.org/documents/3533784-Waymo-Uber-3-...
Judge Alsup's comments are fairly aggressive in comparison to most commercial litigation, but the no-nonsense tone is par for the course.
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,
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."
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.
"[...] 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."
Ouch.
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.
Then they should have their legal team pilloried and set ablaze for advising them to be this cagey.
- Go for it and see if anyone complains
- See if ignoring the complainers makes them go away
- See if bullying the complainers makes them go away
- Can it be solved with money?
- Last resort: cheat.
- If you get caught, call the lawyers; in public, whine about the raw deal you're getting.
I'm going to bed.
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.
Knowing almost nothing about US Federal civil law, can inferences be drawn from that (and other previous behaviour of Uber)?
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.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?
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?
>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.
Of course, the documentation from Waymo/Google is also pretty strong apparently. Simply saying "I didn't do that" would be insufficient.
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.
> 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.
GOOG-ACCOUNTING-REF:3FX/ASTRO/15/TURFWAR/PROJECTSOROS
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.
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.
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.
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.
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
No, he could give up his 5th amendment right to save Uber money. This is a civil proceeding not a criminal one.
They should have litigated against Mr. Lewandowsky after he founded Otto using documents they claim to know he stole more than a year ago.
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.
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.
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.
has not been demonstrated yet. Only the accusation. Furthermore, there's been no judgement.
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.
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).
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.
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.
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.
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.
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."
Which they just can't do right? Fifth amendment can be used against you in civil cases.
Judge Alsup doesn't seem very sympathetic to that line of reasoning.
He did not, however, decide upon that point at this stage, given that these matters were not properly in front of the court.
> 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.
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?
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.
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.
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.
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.
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.
https://assets.documentcloud.org/documents/3533784/Waymo-Ube...
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.
Man I wish I could be shorting Uber right now.
Judge Alsup always winds up with the most interesting cases :-)
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.
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.
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.
Avoiding an injunction against your business.
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.
I am considering GP's situation directly -- leaving a company to create a start up and then being sued.
If he didn't steal, he should say so to save his business. If he doesn't say so, he risks his business. That's the downside.
Of course, if he did steal, he should shut up and lesson #2 explicitly doesn't apply.
The present situation is different -- Levandowski's fate probably isn't tied to Uber's and certainly vice versa.
> I would hold off on taking any lessons at all until it's had a few years to work its way through the courts
I stand by the "don't steal" lesson :-)
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.
Oh, wait, you said benefit.
I'm not a lawyer, but Alsup is, and he states as much in an abundantly clear tongue lashing of Uber's lawyers:
http://www.documentcloud.org/documents/3533784-Waymo-Uber-3-...
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.
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.
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.
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'm just putting this out there because I don't actually know, and hope someone else knows the answer. Not attempting to be authoritative.)
I would probably have been in a world of shit if anything came of it, though.
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.
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.
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.
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.
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.
In any case, I stand by my lesson: avoid actions that lead to situations where these distinctions matter.
However, whether or not he used those documents in an inappropriate manner in Otto or Uber is still up for debate.
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.
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.
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?
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.
https://www.law.cornell.edu/rules/frcp/rule_45
Outside of the exceptions listed, yes, you would be required to produce information you have.
Obviously, can't hold you in contempt (or at least, can't punish you) if you validly took the 5th, but ...
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? :/
This entire concept is deeply troubling to me.
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 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.
Ex: "Produce X chat logs on Y date which we have evidence contain discussions of selling stolen N-Gages"
vs
"Produce all illegal conversations between July and August regarding stealing LIDAR designs"
"[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?
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.
Not self driving, but ACC
I'm only half-joking in that I wouldn't be surprised to find out this is a thing already.
Edit: Found it, https://news.ycombinator.com/item?id=14046529
If they just did the criminal trial first, he couldn't claim 5th protections, right?
Google probably can't wait until a long criminal trial happens.
Civil discovery is easier than criminal investigations.
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.
Best joke I read today.
Furthermore, they claim this was all orchestrated by Uber to create a legal firewall.