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Comment by tmh79 | Hacker News Reader

OK:

Here is some context for those who aren't current on the case.

One result of the injunction (all of the hearings up until now) was that uber needs to use all of its power to compel levandowski to testify, the extreme limit of which is firing him. Uber followed through as was legally required

This is one part of a number of things that came out of preliminary injunction hearings, other parts are (1) the breadth of the case is much smaller than as originally filed, its now about trade secrets, not about patent infringement (2) Waymo is allowed a bit more indepth "discover" to see if they can find evidence of their tech in ubers documents or in ubers hardware itself.

Legally, there is no inference that can be drawn from this to imply uber is guilty, they have willfully carried out a court order.

Uber still has a self driving car program, that is staffed by a few hundred engineers.

The case against levandowski has been referred to a federal prosecutor to review the possiblity of criminal charges against levandowski, if I was his lawyer and he was in this position, I would likely refer him to "plead the fifth" regardless of his guilt.

The case is most definitely still going to trial

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One thing I've been confused about: didn't this whole thing start when a vendor sent an e-mail to Google that was intended for Uber, and the contents of the design in that e-mail were sufficiently similar to Google's designs that Google started this process. Was the design not similar enough to prove Uber's use of Google's IP? Am I remembering or interpreting that story incorrectly?

From what I understand, no that isn't similar enough on its own. I do not understand this part of the law "very deeply" but basically, there are a few things that google needs to prove

[EDIT: NOTE BELOW](1) Levandowsky took information from google in some kind of physical way (files on a thumb drive, network transfer etc), it doesn't count if he just took the files by "memorizing" them in his brain

(2) The information that was stole was secret, and highly beneficial to google/waymo

(3) Levandowsky used the information that he stole to influence designs at uber, and specific uber designs can be traced back to information in those docs

Proving these 3 things in a civil case is tricky, that is why waymo is trying to get a lot of "discovery" which is basically the ability for google/waymo to gather information on ubers corporate network.

EDIT: (1) isn't true, but there are some strange edge cases around what stealing is, like, if levandowski is developing the state of the art stuff himself, and had been working on it since before waymo, what is his knowledge, and what is google/waymo's trade secrets?

Are you sure about (1)? I believe you can steal trade secrets even if you don't take them in an embodied form.

It is true that you can't prevent someone from practicing their profession under the terms of California employment law (other states vary) -- but if you take reasonable steps to protect your trade secrets, the employees can be bound to honor that secrecy by not disclosing them to future employers.

Source: I've been involved in a trade secret dispute (it was nonsense but annoying), and I am definitely not a lawyer.

(1) is definitely not true. Memorized trade secrets can be misappropriated, if they were covered by an NDA. It just makes it harder to determine what is a trade secret if there isn't any concert documents or prototypes stolen.

Waymo says they have proof of #1 and #2.

We found that six weeks before his resignation this former employee, Anthony Levandowski, downloaded over 14,000 highly confidential and proprietary design files for Waymo’s various hardware systems, including designs of Waymo’s LiDAR and circuit board. To gain access to Waymo’s design server, Mr. Levandowski searched for and installed specialized software onto his company-issued laptop. Once inside, he downloaded 9.7 GB of Waymo’s highly confidential files and trade secrets, including blueprints, design files and testing documentation. Then he connected an external drive to the laptop. Mr. Levandowski then wiped and reformatted the laptop in an attempt to erase forensic fingerprints.

Ref: https://medium.com/waymo/a-note-on-our-lawsuit-against-otto-...

After reading the transcript of the testimony on what Google actually knows about (1), it's actually less convincing in my opinion than Google's wording makes it sound (which is to be expected from lawyers making a case). I still believe Levandowski likely took trade secrets, but it's much less compelling when you read the details. There's a link to it in this HN comment[1], and I reply with what I think is a fair summary.

1: https://news.ycombinator.com/item?id=14261591

More specifically, the "specialized software" was TortoiseSVN, and the "downloaded over 14,000 ... downloaded 9.7 GB" was an SVN checkout.

An SVN client being used to access an SVN repository is hardly unusual, certainly not in the way insinuated by the wording presented.

If I recall, Google/Waymo claimed in their filing that he had never used the Subversion repository in question from that laptop in the course of his employment, until that moment. They further claim he actually searched MoMA for how to access it as well as how to do end-to-end setup. He then left not long after that checkout. That is unusual, if true.

Yes, but it was also a previously unused laptop, so it's not all that unusual for someone setting up a work system to make sure their work access is set up. It is odd that it happened towards the end, and that it wasn't used afterwards, but I can also see it being something I might do in preperation if I had to take a short trip and hadn't set up a remote work laptop yet or my prior one was causing problems. That it wasn't used might have been that he ended up not doing any work (or any work that required the laptop) during the period he wanted it. A single normal SVN checkout during the setup would get every file in the repo by default.

Basically, I don't think it's hard to construct an entirely innocent narrative of events (assuming SVN access was normal for him). The later developments do make it look fishy, but since I doubt anyone would have thought anything amiss with the list of actions without the later events, it's far from a smoking gun when taken by itself.

Google alleges he then copied the files onto a portable hard drive and wiped the laptop, which shows a pretty strong intent to deceive.

Sure, when it's summarized like that, it sounds bad, and it maybe bad. But compare that to this slightly expanded timeline summary from reading the actual filing[1]:

The laptop in question connected to Google only 3 times between March 2, 2015 and November 25, 2015, despite being configured to connect every 15 minutes. ~ 2 hours on Oct 22, ~2 hours on Nov 20, and "briefly" on Nov 25. (My interpretation? It was almost always off and not in use).

Windows was reinstalled on Nov 26th.

On Dec 3, searched were done on Google's internal search system for how to log in and setup access through SVN to the driving car project ("chauffer").

Tortoise SVN was downloaded and installed on Dec 11. It then "downloaded over 14,000 files from the SVN repository". (My interpretation? A SVN checkout of the entire repo was done).

A USB card reader was attached on Dec 14 for about 8 hours.

On Dec 18, the laptop was reinstalled with Goobuntu (Google's custom Ubuntu).

The machine stayed on and checking in to Google normally from the time of the install until Dec 21, when it received a "machine certificate", within a minute of which it was not seen again on Google's networks, despite being configured to connect every 15 minutes (My interpretation? It was off again).

The filing goes on to talk about some Google drive exports of documents that don't necessarily look good for Levandowski.

My purpose here isn't to convince anyone that he's innocent, just to point out that Google's allegations are worded in a way to cast the most suspicion while being technically true. Through the omission of the timeline it sounds like his actions were all taken at once, which looks a little more premeditated, when instead it was over a period of a couple weeks. It's entirely possibly that Levandowski purposefully obfuscated his actions by spreading them out temporally, so this isn't evidence he didn't do what is alleged, but I think it's important people have the facts before making judgments based on Waymo's lawyer's accounting, which is obviously as beneficial to Waymo as possible, as should be expected.

1: https://www.documentcloud.org/documents/3515476-Declaration-...

Sure, Google's interpretation is not particularly generous. But even the most charitable reading of the facts would find that Levandowski downloaded the files to an external disk, relatively close to when he left the company.

All of that is bad for Levandowski, but it's unclear if any of those files got used by Uber, which is where the case may very well fizzle out.

> But even the most charitable reading of the facts would find that Levandowski downloaded the files to an external disk

Actually, no. All they have is that a few days after an SVN sync, a USB card reader was attached for 8 hours. There is no evidence presented that he actually copied any files, much less the synced SVN files, to whatever was connected with the USB card reader. He could have plugged it in to copy his personal SSH keys to the machine and left it in until he left for the day for all we know.

There is separate information that he exported a single Google Drive file to a personal device on January 11, titled "Chauffer TL Weekly Updates - Q4 2015". There are further logs about other high level engineers that subsequently left that also exported Google Drive files to personal devices prior to leaving as well.

This. Everyone should read the expert testimony themselves and come to their own conclusion. It's not long. Just a few pages.

Thanks for writing this up. The court of public opinion IMO should adhere to "innocent until proven guilty," and summaries like yours are the only things that make that possible.

This is a civil suit, not a criminal one, so the standard of judgment at play is "preponderance of evidence", not "innocent until proven guilty beyond a reasonable doubt".

The summary does seem to make it pretty clear which way the preponderance of evidence goes. That'd be an awful lot of coincidences to have all that stuff lining up in one particular way -- it just seems unlikely.

Or he just installed Windows to see whether the sources compiled, then switched back to Goobuntu. And plugged his Yubikey in.

Can you show me where in the expert testimony this is? I haven't yet found this exact allegation myself. I've seen the media parrot this over and over again.

The expert testimony identified a specific model card reader attached to the computer a full three days later. It didn't say that a memory card was ever inserted into the card reader and mounted a logical volume. Nor did the expert testimony mention any files copied to an external drive. The have an expert testimony with specific details from logs about a card reader being inserted but no specific details about a storage device or files being copied? Does the lack of these details but specificity of other details not strike anyone else as odd?

The only copying of files that were specifically identified in the expert testimony was the copying of about a half dozen files to Google drive. That's it. I'm not saying that there isn't the possibility of wrongdoing, but the expert testimony certainly doesn't support the allegations enough to meet the criteria of "preponderance of evidence" for me at least. The testimony definitely doesn't meet the criteria of being a smoking gun, yet that is how it has been reported.

> Does the lack of these details but specificity of other details not strike anyone else as odd?

Not particularly. There's only so much they can log easily by tying into the system. Card reader insertions are easily tracked through OS level event logs in most operating systems, but generating a log entry for every file copy that happens is quite another level of granularity.

It's sort of like street level cameras. They may catch someone going into a a house or business, but unless you have prior knowledge that there is a camera inthe house or business that the state should have access to, omission of footage of what happened inside does not insinuate that something is being omitted on purpose.

> The only copying of files that were specifically identified in the expert testimony was the copying of about a half dozen files to Google drive.

Yep, and only one of them was by Levandowski. "Chauffer TL Weekly Updates - Q4 2015"

There's only so much that the expert testimony was able to establish. But what it did do was get the judge to authorize more discovery, so Google will apparently get a lot of data from Uber to search through to find their smoking gun, if it exists.

Yeah, I wouldn't expect logs for every file, but I would expect logs for the insertion of a card into the card reader and mounting a logical volume from that card. How big was the card/volume, if any? And if there even was one, was it even big enough to hold the entirety of that repo.

Also, while copying isn't auditable on windows, windows can audit object reads and writes. Were there any logs showing that the directory with the files were read while the card reader was inserted into the machine? It's off by default however. Does anyone know the default audit settings of a new google windows installation to know what folders it turns on logging for if any?

https://technet.microsoft.com/en-us/library/cc976403.aspx

These are all issues and details I would expect to be mentioned in an expert's report if they weren't trying to be selective in the details they provided. Since this expert works for Google, omitting details in Google's favor wouldn't surprise me. I didn't see any statement in the expert's report where they had to make a statement under oath where they declare that they aren't omitting any other details that may be relevant to the court. Without such a declaration, it's possible to be truthful, but deceptive without perjuring yourself.

Well, if he has a rock-solid benign explanation, why doesn't he come on the stand and testify?

Taking the fifth is not automatically a sign of guilt despite what some people might think.

As I understand it it's not out of the realm of possibility for a lawyer to advise doing so even for completely innocent clients. It's not hard to get tripped up on the stand and sound guilty even when you aren't.

This. The video Don't Talk to the Police[0] has several concrete examples of how not taking the fifth amendment can be to your disadvantage.

[0] https://www.youtube.com/watch?v=d-7o9xYp7eE

This is not a criminal proceeding.

But the case has been referred to the authorities for a possible criminal case. In that light, there may be more reason to keep quiet.

It's one thing to take the fifth out of an abundance of caution when all it might do is raise some suspicion. It's another thing when doing so is likely to cost you $250MM. It's hard to look at this course of events and conclude that Levandowski probably did nothing wrong.

Seeing as how the expert testimony is far from being in the least bit conclusive but allegations were presented as such, it's not hard to see why it is best to say nothing. Every word you utter will be used against you in the least charitable way possible, especially when the court of public opinion already thinks you're guilty.

Despite what you learned as a kid, you can get caught in a lie when you tell the truth. Part of the "game" of adversarial court is trying to get as many legally admissible statements from opposing witnesses as possible. Once enough statements have been entered into evidence, lawyers find contradictions - it doesn't matter how small. Humans don't say the exact same thing every time - it's not too hard to create the appearance of a contradiction where none exists - and sometimes prosecutors get it wrong and think they hear a contradiction where none exists. Good defense lawyers keep their clients (innocent or guilty) out of the witness box as much as possible.

Reminds me of the "accessed X thousand confidential documents" in the Carmack trial, as a way of saying "copied his mbox file."

Part of the problem for Uber is that, as is standard in acquisitions, Uber commissioned a due diligence report to try to determine the odds there was stolen IP involved when they were thinking of buying Levandowski's company.

Now that ought to be evidence that Uber could use in its defense. Instead, Uber is going to extrordinary lengths to try to keep it out of the trial.

Sure. I'm not coming in on the side of Uber, I'm just calling into question the idea of taking Google's initial allegations, and the assumptions that are often made from them, as evidence instead of the actual filing which paints the story slightly differently.

Personally, I suspect we'll eventually fine out that Levandoswki - and others, check the filing - did steal trade secrets.

> didn't this whole thing start when a vendor sent an e-mail to Google that was intended for Uber, and the contents of the design in that e-mail were sufficiently similar to Google's designs that Google started this process.

Yes.

> Was the design not similar enough to prove Uber's use of Google's IP?

It may well be, at trial, in court.

> Am I remembering or interpreting the story incorrectly?

No - but it still has to be demonstrated to be true to the extent required for a civil case.

Since it's a civil case, won't it only have to be demostrated to be more likely then not? I thought 'beyond reasonable doubt' was only the bar for criminal cases.

Yes my bad!

> No - but it still has to be demonstrated to be true beyond reasonable doubt.

"Beyond reasonable doubt" is the standard of evidence required in a criminal case. The standard of evidence required in a civil case is a "preponderance of the evidence". This standard is met if the proposition is more likely to be true than untrue (ie >50% chance).

https://en.wikipedia.org/wiki/Burden_of_proof_(law)#Preponde...

Oh weird I thought this was a criminal case. Thanks!

Levandowski may indeed be facing criminal charges (separate from the civil case against Uber), hence his unwillingness to testify.

That vendor's email is probably the most expensive email mistake ever made. I wonder if he sent it to the old Levandowsky (Google) email that his email system probably autopopulated?

It's very common for hardware vendors and hardware teams to have extremely long email chains where they copy everyone involved for the length of the project. I imagine that the vendor copied the old Google colleagues by mistake.

Misdirected emails happen. I was even recently called by a vendor on my cell phone (side effect of open offices: no office phone) for an old company that wanted to talk about the sensors they were using for a new project. The vendor still thought I worked there even two years after leaving.

It's crazy how common this is in even very sensitive cases. There should be a rule based system in place that makes it troublesome to email people not associated to a certain project.

A mailing list?

You mean this feature of Outlook? https://blogs.msdn.microsoft.com/microsoft_press/2013/04/29/...

I remember the vendor contacting Google ( Waymo), because Uber has similar designs. An email to Uber was send to a colleague at Google, when he was still employed there

> Was the design not similar enough to prove Uber's use of Google's IP?

It's doubtful whether this will be even admitted as evidence.

The court can't order a private entity to fire a private employee. They did this because they know they are probably going to lose this case, and it will be harder for Waymo to show that Uber's conduct was willful now that they have fired the main person involved. They want to be able to say "as soon as we were sure that some of this was stolen, we fired the person that did it". That may make a settlement more palatable to Waymo, or potentially decrease the damages awarded to them by a jury if it goes to trial.

Don't all corporate punishments include the clause "up to and including termination"?

If the court is compelling Uber to produce documents and/or information, and if those documents/information are in the hands on one employee, then the courts are compelling Uber to compel employee. That's Uber's card to play, "punishment, up to and including termination".

The court didn't order Uber to fire Levandowski, it ask Uber to do everything within its power to produce documents/information.

The court can (and did) order Uber to:

> immediately and in writing exercise the full extent of their corporate, employment, contractual, and other authority to (a) prevent Anthony Levandowski and all other officers, directors, employees, and agents of defendants from consulting, copying, or otherwise using the downloaded materials; and (b) cause them to return the downloaded materials and all copies, excerpts, and summaries thereof to Waymo (or the Court) by MAY 31 AT NOON [1]

---

I believe that authority includes firing him if he did not comply.

[1] https://assets.documentcloud.org/documents/3722249/Uber-Inju...

How do you return a downloaded file without copying it?

By returning the storage medium it is on?

You're thinking like an engineer. You probably also think that playing a video creates a copy just because it does. You probably also think Aereo's business model was legal just because it technically obeyed all of the laws.

Pretty simple: turn over the computer and/or devices it is on.

Actually, they did it because the judge suggested it. There was no other practical way for Uber to comply with the court's orders in light of Levandowski's pleading the Fifth.

Source: https://arstechnica.com/wp-content/uploads/2017/05/Uber.Waym... (page 23, footnote 9).

They didn't do this "because they are probably going to lose the case" they did this because the judge instructed them to.

Its also entirely unclear if they will actually lose the case or not. Comments made in the PI ruling make it seem very ambiguous, and it will hinge on the results of further discovery. If no new relevant evidence is found in discover, uber will be found innocent.

Questions...

This is civil, so a preponderance of evidence is the burden here. Can he fight that at all without talking? Google has a ton of evidence that he 'downloaded' a lot of stuff. It's not a big jump to see Otto/Uber made a tremendous amount of progress pretty rapidly too. I'm not the judge but being an engineer, knowing other engineers, hearing Google's story about the data he took, seeing the dollar figures, it seems damning. What evidence is there to the other side if he won't explain things?

> This is civil, so a preponderance of evidence is the burden here. Can he fight that at all without talking?

Pleading the fifth in a civil case can be used as a negative inference, so if you're not prepared to talk and the other side has evidence it's going to be an uphill struggle at best.

Fair enough. I don't know what role Uber played in how they hired/acquired Levandowski. The lesson I take away is, don't be a liability to your employer - Though that was kind of my prior to begin with.

How does firing him equate to pressuring him to testify?

"If you don't testify or produce documents, we're going to fire you."

"I still refuse to testify."

"Alright, you're fired."

That's all they can do.

What else would you have them do? Jail him? Torture him? The company has limited tools at its disposal the ultimate one being to fire the person.

Although for the sake of this discussion I agree with you, I could have a lot of fun making a list entitled, "things companies have done to people that are worse than firing them."

And most of those things would also go on a list called "illegal things companies have done".

Probably not a good idea to do something illegal in the middle of a lawsuit.

There are many ways to make an employee's life worse without doing anything illegal. You tend to see them in dysfunctional companies.

Yes, but usually not in the middle of lawsuits that spell 'doom' in large letters for the eventual loser(s).

Uber has one and one chance only to get this behind them: to play by the book and to ask 'how high' when the judge tells them to jump. If they try anything funny they can expect the ROI of that to be substantial and negative.

I agree, but the topic had diverged somewhat.

OT, have you noticed an increase in superfluous downvoting? I'm not really complaining, just trying to figure out if I'm imagining it or if it's randomness doing its thing.

Since HN has become so much bigger, I wonder if the mods could scale down the effect of downvoting. E.g. make it take two downvotes to make a comment appear at 0.

Happens all the time, I wouldn't worry about it, just ignore it.

Ok, I wrote a tampermonkey extension to hide the effects of being downvoted: https://gist.github.com/anonymous/9d681310f4714277a37832643c...

It removes scores from your comments and replaces your karma counter with "(9999)".

HN is much more pleasant now.

Hah, that's a cool solution.

I submitted a better version at https://news.ycombinator.com/item?id=14456200

Here is an example from a previous job.

The location was a factory for a company you have heard of. Temporary employees were 99 and 44/100% of the workforce. One staffing agency, call it Agency A, had the main contract for the site and they were required to give some of the work to their competitors. It was policy to assign temps from other agencies impossible schedules so that they would quit and be replaced by temps from Agency A.

http://lostinjapan.groth.hm/archives/2010/04/sitting-at-the-... http://www.nytimes.com/2013/08/17/business/global/layoffs-il...

Legend has it that Japanese companies, rather than terminate under-performing employees, will seat them "at the window" and not assign them any tasks at all ... This is not terribly compelling short-term, but is horribly boring .

Played well, that sounds like a good way to get your side project off the ground. Then again, I imagine the cross section of under-performing employees that get this treatment and those that are ambitious enough to follow through on an idea for a side project/business is probably quite small.

Also, you probably would have to hide all the work, since depending on your contract your employer would probably have some claim to it, since it was during work hours.

I would love to get 'put on the roof' like that, but I think the Japanese policy also states that you're not allowed to do anything outside of the ridiculously mundane task they assign you, and they actually watch you like a hawk to ensure as such. Pretty smart, most people aren't going to stay in that situation for long.

Could you imagine being the manager assigned to watch such employees? That's a special hell.

I once worked at a newspaper, when "online" was new and side project of the marketing department so that they could sell more ads.

Until I automated things, we were cutting and pasting a few articles each night from Quark into BBEdit and hand-massaging it into HTML templates for upload. They assigned us an "editor". Poor guy had written pro-civil-rights editorials at a time when that didn't go over well. Got assigned shit jobs for decades to try and force him out. We didn't create new content; there was nothing to edit. But, they made him go to all the meetings and report that each day. Dude used a giant trackball and knew nothing about tech, but somehow landed in the department that would one day rule the newsroom. I wonder how he's doing these days.

> Could you imagine being the manager assigned to watch such employees?

What do you think they do with the managers they want to fire? ;)

Why they don't fire the person? This is ridiculously sleazy.

It's a huge cultural taboo to fire anyone without cause in Japan. And even if you do have cause, there's a pretty high bar for what actually constitutes cause. It would be a huge scandal if a Japanese company, especially a large salaryman-style company, fired an employee for anything less than stabbing a coworker.

Hell, even in the entertainment industry, where employment is gig-based, Masashi Tashiro didn't get blackballed until he was convicted twice for voyeurism, twice for drug abuse, once for nearly crippling a guy in a car accident he caused, and once for posessing an illegal weapon [0].

[0] https://en.wikipedia.org/wiki/Masashi_Tashiro#Second_trial_f...

In these Japanese companies they'll be sorta monitoring you and fire you if you're caught not doing the mundane tasks they've assigned you. So they basically force you to quite or get fired.

If firing is an option, why wouldn't they do so in the first place?

Presumably it's the difference between firing with cause and firing without cause. There are many positions where performance is measured pretty ambiguously, so if you want to get rid of someone you couldn't demonstrate strong cause for doing so. Make them do pointless simple make-work, though, and you can easily find cause for firing if they don't do it.

Firing someone for performance isn't a thing in Japan.

The "pointless simple make-work" isn't to build up cause, it's to abuse and degrade them until they have enough of it and quit. The technical term for this is "constructive dismissal".

[0] https://en.wikipedia.org/wiki/Constructive_dismissal

Your explanation is missing a nuance in the comment I was replying to -- namely, that people were being fired for not doing the pointless simple make-work. If you're going to fire them for that, why not just fire them in the first place and skip that entirely.

Not familiar with the culture or mindset, but I'm guessing it's simply because "you're fired because you intentionally didn't do your work" is easier to accept mentally / emotionally then "you're fired because you're just kinda stupid and slow."

Yeah, that's in the same vein as to what I was trying to get at. Being fired because you refuse to do stupid make-work is certainly less psychologically damaging than being fired because you were no good at your real work.

And I think it goes both ways. The firee takes it less personally, the firer doesn't feel as rude.

Not sure if it's typically the case in Japanese custom, but there are a number of scenarios where a person forfeits certain compensation by quitting that they would otherwise be entitled to if they're fired. So if the company can get rid of them by making them think it was their idea, the company saves on severance / recoups equity, etc.

Companies can do worse things than firing people, but it's hard to legally compel them to do so.

It also probably means that Levandowski loses some or all of his compensation for Uber's acquisition of Otto, right?

From what I recall, that purchase was made in Uber stock, and I'd expect it to have a vesting schedule. Depending on the length of the initial cliff, it seems possible that he hasn't vested any of that stock. I am speculating though and don't know for sure.

My understanding is that the vesting started when he left Google/Waymo. Uber made vesting retroactive back to Otto's nominal start date. This has been called out by Waymo's lawyers.

Of course, if it is the case that Otto was built on misappropriated trade secrets, and Levandowski lied to Uber about that during the acquisition, then we might well see some of that clawed back in a separate lawsuit.

You could fire him and then write a public post explaining that he was fired because of rank incompetence and unethical dealings. Just saying.

(IANAL but if I were I would probably not counsel doing that in any case. :-P )

A bit pedantic maybe: firing him doesn't pressure him, but threatening to fire him does. And it's not a threat if they don't eventually do it.

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