Uber engineer accused of data theft must tell judge why he’s … – Ars Technica

Enlarge / John Krafcik, CEO of Waymo, debuts a customized Chrysler Pacifica Hybrid in January 2017.

Bill Pugliano / Getty Images News

"What Ive told you is that you can submit the privilege log to me, in camera, without giving it to anyone else and I can evaluate it, which aspects, if any would be incriminating," US District Judge William Alsup said, addressing a lawyer representing the engineer, Anthony Levandowski, during the hearing."Im not ruling against theultimate assertion of the privilege, but youve got to do more than just say in court, Fifth Amendmentyou have to do a privilege log and go through the process."

The case pits Waymo against Uber, which in turn is in a tense situation with one of its own employees, Levandowski, the head of its self-driving division.

Levandowski is now set to be deposed by Waymo lawyers this Friday at their San Francisco offices. He must also respond to a subpoena by handing over materials that he is accused of stealingthousands of secret documents from his time with Waymoparent company Google. On Wednesday, Judge Alsup quashed four of the six distinct items requested in the subpoenabut allowed the most substantive, the allegedly "misappropriated materials," to stand. (The third item, "All communications between You and Uber between January 2015 and August 2016," will also remain.)

Earlier this year, Waymo sued Uber for alleged patent infringementWaymo claimed that Levandowski, a former Waymo and Google employee, stole 14,000 confidential documents prior to his departure.Armed with that data, Waymo further alleged, Levandowski founded a company called Otto in early 2016, which was then acquired by Uber for $680 million only months later. Waymo argued that this cache of materials allowed Uber to rapidly and seriously compete with Waymo in self-driving technology. Late last month, Waymo lawyers asked the judge to impose an injunction that would compel Uber to stop using any of the allegedly stolen data.

In late March 2017, Levandowski invoked his Fifth Amendment right to protect against self-incriminationdespite the fact that he neither has been charged with a crime, nor is he a named defendant in the civil suit. So far, the engineer has refused to hand over any documents or data related to the lawsuit. In addition, Uber seems unable to compel Levandowski, who still remains employed at Uber, to give up the information.

"As an employer you cannot force an employee to turn over personal property," Arturo Gonzlez, one of Ubers attorneys, told Ars in a phone interview after the Wednesday hearing. However, he noted, Uber would be "very pleased" if Levandowski would hand over any relevant data that he may have.

During that late March court hearing, when Uber indicated it would not pursue any data that Levandowski held privately, Waymo tried a different tactic. It served Levandowski'sattorneys with a subpoena, commanding Levandowski to produce substantial amounts of materials and to appear for a deposition on Friday, April 14. Levandowski'sown lawyer, Ismail Ramsey, told Waymo's lawyers in a letter on Monday that Levandowski "plans to assert his Fifth Amendment rights with respect to any documents requests served on him."

Waymo's attorneys, for their part, countered in a Tuesday letter to the judge: "Again, the only reason a subpoena was even required to be served in the first place is because Uber and Mr. Levandowski have attempted to construct an artificial distinction between themselves in an effort to delay their obligations to produce responsive information."

As Ars reported earlier this month, Uber's lawyers initially resisted producing a privilege log of their own. Uber's loga list of which documents shouldn't be disclosed to Waymo as part of civil discoveryishundreds of pages long, much of it e-mail from Uber's systems about the $680 million acquisition of Levandowski's startup, Otto. Levandowski is concerned about 42 documents that relate to a due diligence report about the Otto acquisition. His lawyers won't even say who the report's author is.

Four days after that April 6 hearing, on April 10, Judge Alsupdenied Levandowskis lawyers attempt tohalt Uber from giving up its privilege log.

"At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege," Judge Alsup wrote. "That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed."

Levandowskis lawyers immediately appealed Alsups April 10 ruling on Tuesday to the US Court of Appeals for the Federal Circuit, which handles all patentappeals.

"I dont believe that you need until Wednesday at noon," the judge said.

On Wednesday, the judge also ordered that by April 25, Uber must produce a description of any and all LIDAR-related work performed by Levandowski, who still currently oversees Ubers self-driving car program.

"You are ignoring all of the other work and you never mentioned what Mr. Levandowski was doing," Judge Alsup told Uber lawyers during the Wednesday hearing. "What was he working on? It does leavethe impression that you have cleverly written around the problem of what Levandowski was working on even if it didnt turn into a prototype. Thats a fair question, and they are entitled to an answer."

Judge Alsup also noted that if Levandowski was going to continue to invoke his constitutional rights during the Friday deposition, the engineer couldnt do it in one fell swoop."It has to be invoked question by questionitll be a long day but you have to go through the process," he said, addressing Waymo attorneys.

Both sides will reconvene before Judge Alsup on May 3 to discuss Waymos motion for a preliminary injunction, which could put the brakes on Ubers self-driving work.

See the rest here:
Uber engineer accused of data theft must tell judge why he's ... - Ars Technica