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.
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.
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.
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.
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.