Pages 1 - 40
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
WAYMO LLC,
Plaintiff,
VS.
UBER TECHNOLOGIES, INC.;
OTTOMOTTO LLC; OTTO TRUCKING
LLC,
Defendants.

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No. C 17-0939 WHA

San Francisco, California
Wednesday, March 29, 2017

TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiff:

BY:

QUINN, EMANUEL, URQUHART & SULLIVAN LLP
50 California Street - 22nd Floor
San Francisco, California 94111
CHARLES K. VERHOEVEN, ESQUIRE
DAVID A. PERLSON, ESQUIRE

For Defendants Uber Technologies, Inc.; Ottomotto LLC; Otto
Trucking LLC:
MORRISON & FOERSTER
425 Market Street
San Francisco, California 94105
BY: ARTURO J. GONZÁLEZ, ESQUIRE
For Defendants Uber Technologies, Inc. and Ottomotto LLC:
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, N.W.
Washington DC 20005
BY: KAREN L. DUNN, ESQUIRE
(Appearances continued on next page)
Reported By:

Katherine Powell Sullivan, CSR #5812, RPR, CRR
Official Reporter - U.S. District Court

 APPEARANCES (CONTINUED):
For Anthony Levandowski:
RAMSEY & EHRLICH LLP
803 Hearst Avenue
Berkeley, California 94710
BY: MILES EHRLICH, ESQUIRE
ISMAIL RAMSEY, ESQUIRE

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Wednesday - March 29, 2017

2:05 p.m.

2

P R O C E E D I N G S

3

---000---

4
5
6

THE CLERK:

Calling Civil Action 17-0939 WHA, Waymo

versus Uber Inc., et al.

On for an in-camera hearing.

Counsel, can you please state your appearances.

7

MR. VERHOEVEN:

Good afternoon, Your Honor.

8

Verhoeven.

9

representing the plaintiff, Waymo.

10

Charles

With me is David Perlson, from Quinn Emanuel,
We also have Shana Staton

who is in house at Google, back there.

11

THE COURT:

12

MR. GONZÁLEZ:

Thank you.

Welcome to you.

Good afternoon, Your Honor.

Arturo

13

González from Morrison & Foerster, on behalf of the Uber

14

entities.

15

co-counsel.

16
17

And I'd like to introduce Your Honor to our new

MS. DUNN:

Good afternoon, Your Honor.

Karen Dunn, of

Boies Schiller Flexner, on behalf of Uber and Ottomotto.

18

THE COURT:

19

MR. EHRLICH:

Welcome to you.
Good afternoon, Your Honor.

Miles

20

Ehrlich and Ismail Ramsey appearing to represent Anthony

21

Levandowski individually to protect interests we think are at

22

stake in upcoming discovery.

23

THE COURT:

24
25

This is both of you represent him; is that

correct?
MR. EHRLICH:

Both of us, correct, Your Honor.

 4

1
2

THE COURT:

All right.

Thank you.

So we are here on the record.

Welcome.

I cannot promise anyone

3

that this will stay under seal.

4

we exclude the public.

5

cannot promise you that once I hear all of this that I'm going

6

to agree that anything should stay under seal.

7
8

So go ahead.

11

I have done that on the come.

But I

If you wish to make a presentation, I'm all

ears.

9
10

You have made a request that

MR. GONZÁLEZ:

Thank you, Your Honor.

We appreciate

that.
Your Honor, we want to talk about two things.

One

12

pertains to the document production.

13

produce documents by this Friday.

14

to the second point we want to briefly address, which is our

15

request that you hear the petition to compel arbitration on an

16

expedited basis.

17

You've ordered us to

And that issue is relevant

I want to start briefly with our document production,

18

which is due on Friday.

19

expecting that by Friday we will be able to produce documents

20

that are at Uber that are responsive to the Court's order.

21

And I am

Now --

22

THE COURT:

23

MR. GONZÁLEZ:

24

THE COURT:

25

We are making good progress.

Responsive or all documents?
Well --

That's a cleverly worded thing.

just fall off the turnip truck.

I didn't

I know what you're telling me.

 5

1

That means you're not going to produce everything.

2

MR. GONZÁLEZ:

Well, and here's why:

We don't have

3

some of these documents that are in the complaint and in the

4

motion for preliminary injunction.

5

those.

6

THE COURT:

7

MR. GONZÁLEZ:

8

THE COURT:

9
10
11

We, Uber, do not have

Who does have them?
Well --

How about Mr. Levandowski, does he have

them?
MR. EHRLICH:

Your Honor, maybe I should step up.

We -- given the nature of the allegations in this case, we

12

recognize that there's potential for criminal action.

13

brought in to advise him in that regard.

We're

14

We have notified counsel for Uber that we are broadly

15

asserting, for the time being -- until we can make a final

16

determination, we're broadly asserting Mr. Levandowski's Fifth

17

Amendment rights as to any documents he may possess and control

18

that are of relevance to this action.

19

We are specifically asserting that under the authority of

20

the Hubbell and Fisher line of cases from the Supreme Court

21

that protect against compelled disclosure that would identify

22

the existence, location or possession of any responsive

23

documents.

24
25

There is no pending subpoena against Mr. Levandowski.
We're advising the Court and the parties that to the extent

 6

1

there is one coming, we would like to brief the Hubbell issues,

2

the Fifth Amendment issues before the Court.

3

the way it's done in criminal practice, we'd ask for the

4

opportunity to do ex parte briefing to establish that it is a

5

valid assertion of the privilege.

6

Consistent with

But the separate issue that causes us concerns, that we

7

have advised Uber's counsel about, is to the extent -- Hubbell

8

and the Fifth Amendment protect an individual's right not to be

9

forced to disclose the existence, location or identity of

10
11

documents.
To the extent Uber's counsel or Uber has any information

12

about those issues, the very issues that Hubbell protects, that

13

is information that was only acquired through a protected

14

common interest privilege.

15

protect the viability of -- of this very important

16

constitutional right, we also need to very broadly protect

17

against inadvertent -- even inadvertent waiver of information

18

that could tend to undermine those Fifth Amendment protections.

19
20
21

THE COURT:

I don't know about the Hubbell thing.
on that.

23

you're right.

25

What are you going to do about this

problem?

22

24

And in order to do our job to

Maybe you're right.

I have to study up

I don't know.

I'm not saying

In about May 3rd -- when May 3rd comes, if your side is
taking some kind of Fifth Amendment -- they have a record over

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there of theft.

2

anything from your side.

3

That's all they need.

They don't need

And if you think for a moment that I'm going to stay my

4

hand, because your guy is taking the Fifth Amendment, and not

5

issue a preliminary injunction to shut down what happened here,

6

you're wrong.

7

This is a very serious -- now, some of the things in your

8

motion are bogus.

9

suppliers as trade secrets.

10
11

You've got things in there like lists of
Come on.

It undermines the whole

thing.
But there are some things in that motion that are very

12

serious.

13

come in with a denial, you're probably looking at a preliminary

14

injunction.

15
16

They are genuine trade secrets.

MR. EHRLICH:
comments.

THE COURT:

18

MR. EHRLICH:

20

Uber.

Your Honor, I understand the Court's

I just want to make very clear --

17

19

And if you don't

Go ahead.
-- Mr. Ramsey and I do not represent

We do not represent Ottomotto.
THE COURT:

We do not represent --

You represent somebody who is important in

21

that organization.

22

because of theft of trade secrets on a record that he's not

23

willing to deny, too bad for him.

24
25

If his truck driving company gets shut down

Too bad.

Listen, I'm not sympathetic to it.
who's in a mess.

You represent somebody

Well, they're in a mess too.

And there's

 8

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some equities here.

2

this.

So you better get your act together on

3

MR. EHRLICH:

4

THE COURT:

5

liability, too bad.

6

preliminary injunction, and they made a record that deserves

7

something.

8

don't deny it, they're going to get something.

9

Your Honor --

The fact that he's facing criminal
I've got a civil case where they want a

I'm not saying it deserves everything.

MR. EHRLICH:

Understood, Your Honor.

But if you

And -- and

10

Mr. Ramsey and I are in a position very often to represent

11

people who have these sorts of issues.

12

constitutional right.

It is a valid

13

And I want to say there is -- there is an opportunity for

14

the Court to order compulsion, to compel production so long as

15

the Court --

16

THE COURT:

17

MR. EHRLICH:

18

THE COURT:

19
20
21
22

I already have.
Well --

I sent out an order saying that these

documents have got to be produced at least by Uber.
MR. EHRLICH:

Your Honor, let me address that.

The order would need to be to Anthony Levandowski.

And

that order would need to carry the protections --

23

THE COURT:

24

MR. EHRLICH:

25

THE COURT:

No, no.
-- of 6003.

You've got it all wrong.

You're trying to

 9

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put the burden on me and on them.

2

You are not even a party to the case.

3

case.

4

going to get hit with a preliminary injunction come May 3rd.

5

They have made a record.
Uber is the party to the

And on this record there is a good chance that Uber is

And if you want to deny the facts, go ahead.

If you want

6

to stand moot because of the Fifth Amendment, that's your

7

privilege.

8

not going to slow this down because of this kind of a

9

situation.

10

your side.

11

But you're not going to slow this down -- you're

I'm sorry.

MR. EHRLICH:

The equity is on their side, not on

And I'm not asking to slow it down, Your

12

Honor.

13

Uber is going to produce, they have represented to the Court,

14

everything in their possession.

15

to do.

16

I'm simply trying to explain that, as I understand it,

And that is their obligation

My concern, frankly, is a relatively small issue, at this

17

point, because there is no pending subpoena directed at

18

Mr. Levandowski.

19

that Uber has, and providing a privilege log regarding

20

privileged information that they cannot produce, they would

21

inadvertently be disclosing information that may tend to

22

undermine Mr. Levandowski's Fifth Amendment right.

23

are not permitted to do that because they -- they only know

24

about the existence or location or identity of any potential

25

documents that may exist through attorney-client privilege

My concern is that in disclosing materials

And they

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1
2
3

communications.
THE COURT:

I don't believe that.

Look, they could go and look on their servers.

If they

4

find emails within the Uber company or that subsidiary that

5

contain copies or forwarding or excerpts from the documents

6

that allegedly were stolen, the 14,000, there's no privilege in

7

the world that's going to stop that.

8

MR. EHRLICH:

9

THE COURT:

Absolutely.

That's correct.

We agree.

So then what are you talking about then?

10

If Uber has found -- let's just make up a number -- 103 emails

11

that reference this stuff, something in the 14,000, they've got

12

to produce it.

13

this is going to implicate Mr. Levandowski.

They can't -- they can't say, oh, wait, maybe

14

MR. EHRLICH:

15

THE COURT:

16

MR. EHRLICH:

Agreed.

Absolutely agreed.

What point are you trying to get at then?
I'm trying to protect a valid Fifth

17

Amendment privilege and protection he has.

18

under seal the information that I am -- that -- that I'm trying

19

to communicate to the Court.

20

THE COURT:

No.

I can disclose

This is -- this is a nonstarter.

I'm

21

not going to get diverted off into you coming in here with --

22

with no motion whatsoever, nothing, and trying to get special

23

pleading because you represent somebody big, and get an

24

under-seal hearing so the public can't hear it.

25

going to work.

That's not

 11

1

If you want to make a formal motion, you can make it.

2

will give it the consideration that it deserves.

3

slow things down.

4

MR. EHRLICH:

5

THE COURT:

6

MR. EHRLICH:

7

THE COURT:

12

Let me confer --

It will not slow things down.
Can I confer with Mr. González?

He may

Sure.

(Counsel confer off the record.)

10
11

But it won't

be able to answer that question.

8
9

I

MR. GONZÁLEZ:
light on this.

Your Honor, let me try to shed some

And you can see why this is a sensitive issue.

First --

13

THE COURT:

The public should be here right now.

14

public should be here.

15

have excluded the public on.

16

MR. GONZÁLEZ:

The

This is not something that we should

So, Your Honor, first of all, we have

17

searched and we are in the process of searching all of our

18

computers for the sorts of information that you referred to.

19

And if we find those documents, we intend to produce those.

20

In addition, Your Honor, we are searching Uber's computer

21

that was assigned to all three of the people that are mentioned

22

in the complaint.

23

Uber computers.

24
25

We are searching all of their individual

We're really here to talk about two things that are
related.

One is, anything that Mr. Levandowski may or may not

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1

have on his own -- let's just assume hypothetically that he's

2

got something at home -- that is not something we have access

3

to.

4
5

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.

6

THE COURT:

Uber has the authority to say to its

7

employees, "If you have anything at home you bring it in here,

8

give it to Mr. González, and he will turn it over to the

9

Court."

10
11

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."

12

MR. GONZÁLEZ:

So, Your Honor, this is where maybe

13

it's not quite that easy.

14

and I don't mind saying this without waiving the privilege, we

15

have made it clear to him that the Court has ordered this.

16

understands that.

17

counsel.

18

I want to make it real clear to you,

He

And that's why he has obtained separate

Second, to add just a tiny bit of clarity on what we are

19

talking about, because one of the things I wanted to discuss is

20

how do we log this on a privilege log without infringing

21

rights.

22

Here's what you're missing right now because we haven't

23

explained it clearly:

24

diligence was done.

A third party prepared a report based on

25

that due diligence.

We intend to put that report on a

Before the acquisition some due

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1
2

privilege log.
There's a concern that's been raised about whether or not

3

we should identify the party who prepared the report.

4

concern is that by identifying the party, we are waiving or

5

infringing upon a Fifth Amendment right.

The

6

That's the issue I want to talk to Your Honor about

7

because I don't want Your Honor to think we're being sneaky.

8
9

THE COURT:

You want me to decide something like it

without having briefed it?

10

MR. GONZÁLEZ:

11

THE COURT:

No.

You gave me some kind of secretive,

12

mysterious letter, and you want me to give you advice and

13

counsel right now?

14

MR. GONZÁLEZ:

No, Your Honor.

I just want to explain

15

the situation to you.

16

situation because what we didn't want to happen is the

17

following:

18

documents, but the 14,000 files that they've referenced thus

19

far we haven't found them.

20

we're still looking.

21

We wanted to come in and explain the

We didn't want Friday to come and we produced some

That's not a surprise to me.

But

In fact -- I wanted you to know this -- we asked them to

22

produce the hash values for these files, which is some computer

23

thing that you can use to try to help you find the files.

24

we got those last night.

25

values throughout our computers to see if any of that

And

And we're even searching the hash

 14

1
2
3
4

information is there.
So it's not that we're not trying.
THE COURT:

Let's play a scenario out here.

MR. GONZÁLEZ:

6

THE COURT:

7

MR. GONZÁLEZ:

8

THE COURT:

9

Mr. Levandowski's deposition.

Correct.

And they get to take some depositions.
Yes.

I'm sure they're going to take

Amendment on everything.

11

MR. GONZÁLEZ:

12

THE COURT:

13

You file

on -- you're eventually going to file your opposition.

5

10

We are digging.

Let's say he takes the Fifth

How is that going to look for Uber?

Your Honor --

Don't you think that's going to lead

almost inevitably to a preliminary injunction?

14

MR. GONZÁLEZ:

15

THE COURT:

Two things in response to that.

I can't -- I can't fix -- this is a

16

problem that your side made, not a problem that the Court or

17

the other side made.

18

If your guy is involved in criminal activity and has to

19

have criminal lawyers of the caliber of these two gentlemen,

20

who are the best, well, okay, they got the best.

21

problem that I can't solve for you.

22

to cut you slack because you're looking at -- your guy is

23

looking at jail time, no.

24
25

But it's a

And if you think I'm going

They 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

 15

1

looked for the documents and can't find them," then the

2

conclusion is they got a record that shows Mr. Levandowski took

3

it, and maybe still has it.

4

your company.

And maybe that means preliminary injunction

5

time.

I don't know.

6
7

I'm not there yet.

But I'm telling you, you're looking at a serious problem.
And you want me to somehow cut slack --

8
9

Maybe.

And he's -- he's still working for

MR. GONZÁLEZ:

No, that's not it at all, Your Honor.

Let me be clear on this.

10

THE COURT:

11

MR. GONZÁLEZ:

What is it you want from me today?
So I will tell you, Your Honor.

First,

12

this is related, in part, to the petition to compel arbitration

13

for this reason:

14

means that this trade secrets issue goes into arbitration.

15

if he testifies there, it's -- it's in confidence.

16

difference.

17

If the Court grants our petition, then it

THE COURT:

Ridiculous.

It's a big

It's not in confidence.

18

United States Attorney can go subpoena information all day

19

long.

20

MR. GONZÁLEZ:

the public where it's going to be on the front page of

22

The New York Times the next day.

24
25

The

Well, Your Honor, at least it's not in

21

23

And

It is a factor that they may take into consideration, Your
Honor.

That's all.
THE COURT:

It's a factor.
That argument gets nowhere.

If he

 16

1

testified, they will -- if they don't let him testify here,

2

they're not going to let him testify there.

3

MR. GONZÁLEZ:

So the other issue, Your Honor, that

4

we're concerned about -- and I can see already, just from your

5

reaction, Your Honor -- is the adverse impact it has on our

6

client.

7

Let me be clear about something.

I want you to know, it

8

is important for me that you know this.

9

Mr. Levandowski on the stand to explain to you what happened,

I would love to put

10

because I think he has a good story to tell.

11

him to do that.

12

So what am I doing -- no, no, Your Honor, you just asked,

13

What are you going to do?

14

do.

15

But I can't force

Let me tell you what we are going to

And I've got to approach this two ways.
If I cannot get a declaration from him, then, Your Honor,

16

I'm going to do the following:

17

you that we are not using any of these things that they say he

18

may have taken.

19

point.

That's my point.

20

THE COURT:

21

MR. GONZÁLEZ:

22
23

We're going to demonstrate to

And it's a very important

That would be a legitimate point.
That's what I want Your Honor to

understand.
THE COURT:

Maybe you can convince me of that.

I

24

have -- I have considered that it's possible that you can come

25

in and say, here's the way our light diodes are arranged, and

 17

1

it's not the same, and all these other things.

2

of suppliers don't even qualify as a trade secret.

3

Okay.

That could be done.

4

fly.

5

on that.

6

would have to evaluate.

7

I don't know.

Like, the list

And it's possible that would

I'm not going to say that you wouldn't win

I'm just saying that is a plausible scenario that I

However, what if it turns out that your light diode things

8

are arranged in the same way or very close to it?

9

going to try to convince me that that didn't have some

10
11

influence on how -- I don't know.
MR. GONZÁLEZ:

Are you

I don't know.

So, Your Honor, I appreciate everything

12

you've said.

13

helpful to us for sure.

You may not realize it, but this has been very

14

THE COURT:

15

MR. GONZÁLEZ:

This has been very helpful.

How could that be?
Well, because, Your Honor, I now

16

understand how strongly you feel, and it makes a difference as

17

to what position Uber is going to take.

18

have a conflict here.

19

just wanted you to be aware so that -- I didn't want you to

20

think later that we were sandbagging you.

21

THE COURT:

Frankly, we obviously

We obviously have a conflict.

Look.

And I

I want you to know I respect both

22

sides here.

23

days when he was a young associate and I was a partner, and he

24

was working for me on cases.

25

better lawyer than I ever was.

And everyone knows I know Mr. González from the

And he has gone on to be a much

 18

1

But you shouldn't have asked for in camera on this.

This

2

could have all been done in the open.

3

Mr. Levandowski has got his -- got himself in a fix.

4

what happens, I guess, when you download 14,000 documents and

5

take them, if he did.

6

I'm sorry that
That's

But I don't hear anybody denying that.

MR. GONZÁLEZ:

Your Honor, the reason why we wanted it

7

in chambers is because of the adverse impact that we think it

8

would have on our client.

9

saying this guy is asserting the Fifth Amendment --

10

THE COURT:

If there's a headline tomorrow

Listen, please don't do this to me again.

11

There's going to be a lot of adverse headlines in this case on

12

both sides.

13

And I can't stop that.

And that's -- the public has a right -- in fact, this

14

whole transcript, I'm going to make it public.

15

nothing -- what do you say?

16

MR. VERHOEVEN:

There's

Well, Your Honor, with respect, I

17

think we should have had notice of what they were planning to

18

lay out here.

19

THE COURT:

20

MR. VERHOEVEN:

You should have had notice.
And I don't think it's fair for me to

21

have to address arbitration issues without any notice or the

22

Fifth Amendment issues without any notice.

23

restrain from doing that.

24
25

So I'm going to

I would have a question, Your Honor, and that is whether
Mr. Levandowski is still running their entire program over

 19

1

there.

2
3

THE COURT:

Well, you can ask them that question at

his deposition.

4

MR. VERHOEVEN:

5

THE COURT:

Okay.

This is not a discovery thing.

6

And if he doesn't testify to that at the deposition, well,

7

I guess Uber -- you know, Uber is -- if you think this is going

8

to help you, my preliminary view of it is it's not going to

9

help you; and that if there's not a clear-cut path to showing

10

that those 14,000 documents weren't used, then you're looking

11

at a preliminary injunction.

12

On the other hand, maybe you can convince me that those

13

14,000 documents somehow none of them were used.

14

a possibility.

15

just don't know.

16

unwilling to say -- hey, listen, I read in the newspaper that

17

he said he did it so that he could do work at home.

18

what I read in the newspaper.

19

not willing to come clean, then that looks bad in a civil

20

lawsuit.

21

I don't know.

I

But if Mr. Levandowski is

I don't know.

That's

So, look, if he's

In a civil lawsuit.

Now, for criminal purposes, okay, maybe he's got the right
to take the Fifth Amendment.

23

thing called adverse inferences.

25

That's

That has occurred to me that that's true.

22

24

Okay.

MS. DUNN:

But for civil purposes, there's a

I think one point we want to reinforce --

this actually sounds a lot like what Your Honor is saying -- is

 20

1

that if Your Honor is in the situation where he must draw an

2

adverse inference against Mr. Levandowski, we would ask you to

3

keep open the possibility in your mind that the adverse

4

inference should not be drawn against Uber, which is a separate

5

party.

6

that we have not used this and that we're differently situated.

7

So in that respect we agree.

8

THE COURT:

And it is our responsibility to come in and show to you

Okay.

I will say this:

I'm not going to

9

prejudge the issue without seeing what your record is.

10

it's conceivable, it's conceivable that that would fly.

11

it's also conceivable that I would draw the adverse inference

12

against the employer who has the guy, who's taking the Fifth

13

Amendment, who runs the company.

14

know.

15

And
But

To me that is a -- I don't

I don't know what I would do.

Listen, I'm not going -- I have not made up my mind how to

16

deal with the timing on the issue of the motion for -- to

17

arbitrate.

18

in one respect.

19

correctly.

And the equities are not on the side of -- except
Mr. -- I can never -- I want to say your name

20

MR. VERHOEVEN:

21

THE COURT:

22
23

Verhoeven.

Verhoeven.

I apologize.

You're famous.

I should know how to say Verhoeven.
You should have told me in your papers that you had

24

already brought an arbitration against Mr. Levandowski.

25

learned that reading their papers.

I only

 21

1

MR. VERHOEVEN:

2

THE COURT:

3
4

Apologize, Your Honor.

You should have told me that.

But that

slightly changes the mix a little bit.
I'll give you a couple of other thoughts.

If you all keep

5

insisting on redacting so much information, like -- and you're

6

the guilty one on that, Mr. Verhoeven -- then arbitration looks

7

better and better.

8

If we're going to be in a public proceeding, 99 percent of

9

what -- 90 percent, anyway, has got to be public.

10

Because I'm not going to put up with it.

The stuff -- this employment agreement by Google, it's

11

laughable that you want to keep that under wraps.

12

laughable.

13

MR. VERHOEVEN:

14

THE COURT:

15

MR. VERHOEVEN:

Just

If I may, Your Honor.

Yeah.
I didn't personally engage in this,

16

but I've been informed by the individual who did that there was

17

not even a meet and confer to confirm the statements that were

18

made to you in that unilateral filing that said we had insisted

19

that everything was confidential.

20

opportunity to address that, Your Honor.

21

THE COURT:

All right.

So we hadn't had an

Is that true, Mr. González?

22

You keep bombarding me with letters accusing them of things.

23

And then the response I get back is that you failed to meet and

24

confer, and they're hearing about this for the first time.

25

So who is it -- who exactly was it at Google that told you

 22

1

that -- or Waymo that told you that everything was

2

confidential?

3

MR. GONZÁLEZ:

So, Your Honor, we have many, many

4

written communications where Google is represented by separate

5

counsel.

6

arbitrations.

7

disclose the information from those arbitrations.

8

no question, the only reason --

9
10

13

And they are emphatic that we are not to

THE COURT:

So there is

No, we're talking about the employment

agreements.

11
12

They're represented by John Keker's firm in the

MR. GONZÁLEZ:

The employment agreements, that's

right.
THE COURT:

You're telling me that somebody

14

representing Google told you that those employment agreements

15

could not be publicly -- made public?

16

MR. GONZÁLEZ:

17

THE COURT:

18

MR. GONZÁLEZ:

19

THE COURT:

20

MR. GONZÁLEZ:

21

Somebody at John Keker's firm.

22

about this for a long time.

23

in October.

24
25

That is correct, Your Honor.

What was the name of that person?
That's the only reason we sealed them.

Who is that person?
Your Honor, I don't know which lawyer.
But we've been communicating

Those arbitrations were filed back

This is not a new issue.

THE COURT:

Yes, but -- all right.

I want you to know

it is laughable that an employment agreement could be kept

 23

1

secret from the public.

2

best -- listen, I want you to understand.

3

MR. VERHOEVEN:

4

THE COURT:

We are a public institution.

So the

Yes, Your Honor.

The best thing -- if we were -- one of the

5

factors that you ought to be considering is maybe you should --

6

if you want all this stuff to be so secret, you should be in

7

arbitration.

8

constantly telling them not to, or you putting in -- the public

9

has a right to see what we do.

10

You shouldn't be trying to do this in court and

And I feel that so strongly.

I am not -- the U.S.

11

District Court is not a wholly owned subsidiary of Quinn

12

Emanuel or Morrison & Foerster or these two big companies.

13

belong to the public.

14

We

And if this continues, then several things are going to

15

happen.

16

going to stop everything.

17

document-by-document hearings in this room, where I go through

18

every document and you justify to me why we're there.

19

after we sort it all out, we will resume.

20

make 90 percent of those public.

21

your motion for preliminary injunction will be delayed day by

22

day until we get this done.

23
24
25

One, we're going to call a halt to the whole -- we're
And we're going to have

And then

And, of course, I'll

We will then resume.

And

You have a very strong incentive to stop this nonsense
with the redactions.
MR. VERHOEVEN:

I understand, Your Honor.

 24

1

THE COURT:

And over there, please don't do this to me

2

again, where you complain about them and then it turns out they

3

say you never met and conferred.

4

For my purposes, John Keker does -- his firm -- I love the

5

guy to death, but his firm is not in this case.

6

is the one you should be talking to, not John Keker.

7

right.

8
9

All

So right now I'm not advancing the date of that motion for
the -- you've known about this arbitration thing and the

10

possibility of this lawsuit for months.

11

that arbitration motion ready to go long ago.

12

sympathetic to your desire to advance that.

13

Mr. Verhoeven

You should have had
So I'm not

I do have in mind the possibility that I will give you a

14

little bit of advancing on it.

15

for a preliminary injunction.

16

unless this redaction thing gets in the way, I'm going to give

17

them -- I'm going to try to stick to that May 3rd date.

But they made a serious motion
And I'm going to give them --

18

All right.

19

anything here today.

20

you another opportunity.

21

Court can give either side that you want me to rule on today?

22

So, to my mind, we haven't accomplished

MR. EHRLICH:

But I want to find out, I want to give
Is there some -- some relief that the

The only relief, Your Honor, that we are

23

asking, on behalf of Mr. Levandowski, is that the Court not

24

order Uber to disclose the identity of this third party who

25

conducted due diligence review on materials belonging to

 25

1

Mr. Levandowski.

And the reason -- can I just say?

2

THE COURT:

3

MR. EHRLICH:

Yeah.
The reason I ask this involves an

4

overlap between the Fifth Amendment active production

5

protection and attorney-client privilege.

6

And counsel who acquires knowledge as part of a common

7

interest agreement stands in the same shoes as counsel for an

8

individual facing potential criminal prosecution.

9

means they are supposed to guard and protect, at every peril to

10

themselves, the disclosure of information that could undermine

11

an important constitutional right.

12

this issue.

13

And that

We could brief the Court on

There are serious implications that are not all

14

unfavorable I should point out.

15

in the context where there's a valid Fifth Amendment privilege,

16

valid Fifth Amendment right, there's a host of Castigar issues

17

that will follow.

18

for -- for any party.

19

If the Court orders disclosure

And it is very hard to unring the bell

We are asking the Court to take this slowly, to let us

20

brief the Hubbell active production issue and the

21

attorney-client privilege.

22
23
24
25

THE COURT:

We can't unring the bell --

Here's the answer:

The answer is no, I'm

not going to do that.
I have already issued an order two weeks ago, at least, to
Uber as to what they've got to produce and not produce.

I'm

 26

1
2

not changing that in the least.
Now, if you want to bring some motion out of left field

3

and set it on the calendar and give Mr. Verhoeven a fair chance

4

to -- instead of sandbagging him the way you did here today,

5

then I'll consider that in due course.

6

give any relief.

7

But I'm not going to

I'm not giving any delays.

I'm not saying that you -- I'm standing a hundred percent

8

by the order that I gave a few -- two weeks ago.

9

remember what it is now.

10
11

Two weeks ago.

I don't

The scheduling order

that laid out how this was going to come down.
So if you've got some -- if you've got some privilege log

12

that is due, you've got to comply with the normal rules on

13

privilege logs.

14

party here.

15

And I'm not giving -- Uber does.

Uber is the

Mr. Verhoeven has made a big point that he's not suing

16

Mr. Levandowski.

17

kind of privilege log, but Uber does.

18

So he -- Levandowski doesn't have to do any

MR. EHRLICH:

So I need to assert on the record, then,

19

in court, that we are asserting Mr. Levandowski's Fifth

20

Amendment active production rights under United States vs.

21

Hubbell.

22

of any confidential information that was acquired as part of a

23

common interest privilege.

24
25

And we are specifically objecting to the disclosure

We are specifically not waiving either of those rights or
privileges.

And we would ask the Court, it's simply the

 27

1

question of identifying the name of a vendor who reviewed

2

materials.

3
4

This is something that can wait.

THE COURT:
making this wait.

No, it can't wait.

There is no basis for

At least on the record that I have now.

5

And you were free for the last two weeks to bring any

6

motion that you wanted, instead of a sandbag motion out of left

7

field and the way you're doing it here today.

8
9

So the answer is no.
record.

Good.

Your objection is made for the

Okay.

10

MR. EHRLICH:

11

THE COURT:

12

whatever they're going to do.

13

to you that you're looking at adverse inferences even at the

14

Uber level.

And I just --

Uber will take that into account in doing

15

MR. GONZÁLEZ:

16

THE COURT:

But I have made it pretty clear

We understand.

And if you don't -- if you can't order

17

your guy to do what he's required to do to meet the charges

18

Mr. Verhoeven has leveled against him, and has proof to back it

19

up, that sounds to me -- then, to finish my thought, too bad.

20

Here's the way I figure what's going on here:

Whoever

21

this vendor was, let's call them ABC Inc. who did due

22

diligence.

23

download -- 14,000 documents were downloaded.

24

doesn't want that ever to see the light of day because it might

25

lead to jail time.

They have a document that shows the $14,000 were

Okay.

And your side

 28

1
2

MR. EHRLICH:

That's not accurate, to my

understanding.

3

THE COURT:

4

that's one way to read this.

5

Good.

I hope it's not accurate.

But

And you over there wondering, well, do we -- I'm not --

6

you've got to do -- I'm not going to rule on this.

7

relieving Uber one inch from what I have ordered you to do.

8
9
10
11
12
13

I'm not

Now, when I was practicing law, the idea that you could
withhold the author of a document in a privilege log was also
laughable.

No such thing.

So maybe what you need to do is bring your own lawsuit
against Uber.

But I'm not giving you that relief right now.

If you brought a formal motion with points and authorities

14

that said I had to do that, of course, I would definitely

15

consider that.

16

being presented out of left field today, I would say you're out

17

of luck on that.

18

But off the top of my head and the way this is

MR. EHRLICH:

19

the privilege log?

20

MS. DUNN:

21

MR. EHRLICH:

22

MR. GONZÁLEZ:

And can I understand the deadline for

Friday.
Friday close of business?
Well, actually, not necessarily.

The

23

Court's order, I think, says -- it's got some language in there

24

about, you know-- I forget the exact words in the standing

25

order, but it basically says you've got to provide it promptly.

 29

1

Something like that.

2

THE COURT:

I don't remember what it is.

But I'm not

3

changing a word out of my orders.

4

log is normally due, you've got to produce that privilege log.

5
6
7

MR. GONZÁLEZ:

So whenever the privilege

Your Honor, may I ask one question?

By the way, you may not realize this is, in my view, quite
helpful, to us at least.

8

On the redaction, there is only one thing that I do think

9

we might want to redact with respect to our petition to compel

10
11

arbitration.
You should know, by the way, we have been conferring.

And

12

as I was coming here, we did file the entire petition

13

unredacted.

14

attachments.

15

the two complaints, the two arbitration lawsuits that they

16

filed against Mr. Levandowski and another employee whose name

17

hasn't even come up.

18

Now we're discussing my declaration and the
The only thing I am a little sensitive about are

I don't know that we need to make those public, those

19

arbitration matters that they have filed in arbitration, when

20

ordinarily those wouldn't be.

21

purposes, is just that they exist.

22

what they allege.

23

Because the point, for your
And you yourself can see

And I've already said in the document, I've already just

24

made a statement what they are, they don't allege trade

25

secrets.

They allege other things against them.

They were

 30

1
2

careful not to allege trade secrets.
THE COURT:

I don't see why that should be withheld

3

from the public.

4

that this lawsuit is very close to what's being alleged in that

5

lawsuit, why shouldn't I get to see that and the public get to

6

see that?

7

If you're relying on that document to say

What's so secret about that?

MR. GONZÁLEZ:

Your Honor, if you think about it,

8

there's another individual whose name hasn't been mentioned,

9

who is accused of misconduct in one of those complaints.

10

THE COURT:

All right.

Well, maybe that guy's name

11

can be withheld.

12

two agree?

13

ought to be redacted even now temporarily.

14

But the rest of it could be -- why can't you

It seems to me that, at most, that other guy's name

Would you agree with that, Mr. Verhoeven?

15

MR. VERHOEVEN:

16

MR. PERLSON:

Can I check with my client real quick?

So the -- in terms of the -- our firm is

17

not doing the arbitration.

18

terms of an agreement that actually, we thought, required it

19

with Mr. Levandowski, that they required it to be confidential.

20

All that Google is concerned about is -- not concerned

As I understand it, there were

21

about their employment agreements being public.

22

concern is protecting someone's confidential, private

23

information.

24

THE COURT:

25

MR. PERLSON:

The only

Confidential what?
Private information such as someone's

 31

1

salary, or something like that, that California law --

2

THE COURT:

Salary, social security number, where they

3

live, telephone number, personal identifying information, I

4

will give you that always.

5
6

MR. VERHOEVEN:

THE COURT:

MR. GONZÁLEZ:

10

THE COURT:

Thank you, Your Honor.

All right.

Now, what else do you have for

today?

12

MR. GONZÁLEZ:

13

is this:

14

appreciate that.

15

So I think I've solved that problem for

you.

9

11

The answer to your question is, yes,

we can agree to what you asked me.

7
8

That can be redacted.

I guess, Your Honor, my closing comment

We cannot force somebody to testify.
We cannot do that.

THE COURT:

Well, maybe you can't force them to, but

16

you can order them to.

17

MR. GONZÁLEZ:

18

THE COURT:

Fair enough.

You can say, "You're our employee.

19

an important employee.

20

either testify or we may fire you."

21

right to do that.

22

I think you

MR. GONZÁLEZ:

This is an important case to us.

Understood.

You're
You

Of course, you've got the

But I guess my parting

23

thought is this:

24

possible, it's absolutely possible that an employee might take

25

something from company number one and go to company number two,

I want to leave you with the idea that it is

 32

1

and it's possible that that information was never used at

2

company number two.

3

THE COURT:

4

MR. GONZÁLEZ:

Yeah, I agree with that.
That's all I'm asking, is for you to

5

keep an open mind about that.

6

THE COURT:

7

MR. GONZÁLEZ:

8

THE COURT:

9

It's also possible it was used.
Understood.

Let me ask this:

Are you going to be able

to look at their product before the preliminary injunction

10

hearing and see that traces -- your trade secrets trace into

11

their product in some way?

12
13

MR. VERHOEVEN:
make a determination.

14
15

THE COURT:

I think you should get access.

You should

ask for that.

16

MR. VERHOEVEN:

17

THE COURT:

18

If we get access, absolutely, we can

Yes, Your Honor.

Or at least you should be asking questions

in the deposition.

19

Are you -- are they going to get access to your product so

20

that they can see if the -- I know Uber has got cars on the

21

road, now, in Arizona.

22

MR. GONZÁLEZ:

So, Your Honor, we haven't discussed

23

it.

24

our witnesses questions about the widget, and where did the

25

widget come from, and how did you design the widget.

Certainly -- we had anticipated that they would be asking

All of

 33

1

that stuff we understand we're going to have to answer.

2

Probably that part, Your Honor, would be under seal because

3

then we are talking about our trade secrets at that point.

4
5

THE COURT:

I think it would be.

But it seems to me that -- okay.

I'm not changing the

6

program at all here.

7

would be important for me to know that Mr. Verhoeven's experts

8

have looked at your actual on-the-ground product to see if some

9

of these key features are there.

10

But I can imagine circumstances that it

And so -- but I'm not ordering that -- I'm not changing

11

that prior order.

12

not -- I'm not trying to change a thing.

13

And I have forgotten how I worded it, so I'm

But I am being sympathetic with the idea that we could

14

come down to -- if it comes down to a debate over whether or

15

not it's being used, and you tell me it's not being used, and

16

they say, "Yeah, but they wouldn't let us look at the product,"

17

then I may -- I may -- I don't know what I'll do.

18

MS. DUNN:

Well, maybe we can table that for a

19

different day.

20

their paid experts to determine what we have done that is

21

different than our experts, and we taking our evidence to the

22

Court to prove our piece and their taking their evidence to the

23

Court to prove their piece.

24
25

Because I think if they're -- if it's up to

So I think we should all -THE COURT:

For example, let's say you put on an

 34

1

expert that says, "I've looked at their trade secrets and I've

2

looked at the product, and not a single one of those are being

3

used."

4

expert.

5

on is not very -- it's inconclusive.

6

expert ought to take a look at it too.

7
8

And it could turn out that what the expert is relying

MS. DUNN:

Right.

It may be their side's

They would have the opportunity, in

the ordinary course, to depose our expert certainly.

9

THE COURT:

10
11

They're going to get to take the deposition of the

How about looking at the actual product?

MR. GONZÁLEZ:

Your Honor, that's something we can

confer about.

12

MR. VERHOEVEN:

We will meet and confer, Your Honor.

13

We intend to ask to look at the product.

14

Court's order to allow us to include that as one of our

15

document requests, is to ask for physical inspection.

16

THE COURT:

17

MR. VERHOEVEN:

18

THE COURT:

It may be.

And we interpret the

And I'm not saying no to that.

Okay.

I am being careful here because I did not

19

know what this hearing was about.

20

enough memory of what I said in the order two weeks ago, and I

21

don't want to say something that would add or subtract from

22

that.

23
24
25

And I don't have a good

So there we go.

So I'm not saying no to what you've said.
yes to it either.
MR. VERHOEVEN:

Thank you, Your Honor.

I'm not saying

 35

1

MS. DUNN:

I think we would just ask Your Honor and

2

acknowledge legally there's an adverse inference that -- that

3

legally will be drawn against Mr. Levandowski if he invokes his

4

rights.

5
6

But -THE COURT:

Well, I cannot say everything -- I'm

just -- I'm not ruling on this yet.

7

MS. DUNN:

8

THE COURT:

No, no, I'm not asking you to rule.
I'm telling you, though, in prior practice

9

every time in a civil case, that I can remember, if somebody

10

invoked the Fifth Amendment, it was proper to draw an adverse

11

inference from that.

12

MS. DUNN:

13

THE COURT:

14
15

Against the party invoking.
Yes, for sure.

And --

But maybe against you,

too, because he's your key guy.
MS. DUNN:

Right.

And so what our position would be

16

on that is that to draw an adverse inference against the

17

company would prejudice, extremely prejudice the company for

18

reasons that I think we've discussed today; and that our

19

responsibility is to show Your Honor, on our evidence that we

20

bring to you, which is our responsibility, that we are going to

21

prepare for the PI opposition, that the company is differently

22

situated than Mr. Levandowski.

23

And so all we would ask you to do is just keep an open

24

mind about that, because that is our -- that's our

25

responsibility and that is our intent.

 36

1

THE COURT:

2

will become pretty important.

3

Could be.

MR. VERHOEVEN:

But that due diligence document

If I may say, none of this -- we've

4

been given no notice of any of this.

5

their case and we're being sandbagged on this.

6

And here they are arguing

The last I heard, Your Honor, he was a senior executive at

7

Uber in charge of their entire LiDAR system, their entire

8

driverless car system.

9

say is I disagree.

10
11

They won't say otherwise.

So all I can

And I would think an inference absolutely

could be drawn.
THE COURT:

Well, I haven't ruled -- look.

I feel

12

like it's unfair to the judge for you all to -- and please

13

don't say that I have absolutely made any rulings today.

14

only one is that I am not, I am not changing what I ordered.

15

want that to be very clear.

16

I

And if the criminal lawyers want to bring some special

17

motion, then I'll hear that in due course.

18

have to be on the public record.

19

The

All right.

Now, are we at an end?

But it's going to

Because I want to end

20

with telling you that this -- unless somebody says they want an

21

opportunity to appeal to the Court of Appeals, this transcript

22

is going to be on the public record as soon as this most

23

excellent court reporter can -- can transcribe it.

24

MR. GONZÁLEZ:

25

MR. EHRLICH:

Understood, Your Honor.
Understood, Your Honor.

 37

1
2

THE COURT:

All right.

So when you say "understood,"

is that --

3

MR. VERHOEVEN:

4

THE COURT:

Yes, Your Honor.

All right.

So that means -- what I take

5

you understand to mean is that you're not asking me in any way

6

to stay my hand on this while you take an appeal.

7

MR. EHRLICH:

8

would allow us to request that.

9

MR. GONZÁLEZ:

I'm not aware of strong authority that

Your Honor, the only thing I'll throw

10

out is -- I appreciate the desire to have open public hearings

11

and all of that.

12

prejudicial to Uber for a transcript like this to go public

13

when they will immediately do what they did with their

14

preliminary injunction, which I found out about it by reading

15

in the paper before it was even filed, a story that was

16

written.

17

I understand that.

I just think it's very

So they clearly intend, I think, to send out a press

18

release, call the reporters and say, "Fifth Amendment.

19

Amendment."

20

I think that's very prejudicial to us, to Uber, because

21

we're not asserting the Fifth Amendment.

22

testify.

23

for him to testify.

24

THE COURT:

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Fifth

said.

We want him to

I want to be real clear about that.

Okay.

We would love

The public will read what you just

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I'm sorry, but the public's right to know what goes on in

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the federal courts is more important than the newspapers

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beating up on you in the press.

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MR. EHRLICH:

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Your Honor, may I just be heard on that

issue?

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THE COURT:

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MR. EHRLICH:

Yes, sure.
As the Court knows, as all the lawyers

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in this courtroom I'm sure know, Fifth Amendment protects the

9

innocent as well as the guilty.

Unfortunately, in our society

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there is a tendency to draw conclusions that are adverse to

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somebody who is simply trying to assert their constitutional

12

rights.

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This is a case that is moving very quickly.

Mr. Ramsey

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and I recently got involved.

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do for every client, which is make sure we're protecting all

16

constitutional rights that exist.

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Mr. Levandowski that he has these rights and he needs to assert

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them for now.

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It could well change.

Our obligation is to do what we

And we have advised

We are examining the issues.

And

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as the Court knows, depositions, you can take it question by

21

question.

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I don't want the record to suggest that he's come to that

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decision.

You can't make a blanket assertion of the Fifth.

So

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And I also, in fairness to Uber, need to make clear that

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this is not -- the Court made a number of comments to suggest

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that this is Uber's decision or somehow we're in cahoots.
This is Mr. Levandowski's rights at stake.

We're

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representing him, not Uber, not any other party in this

4

courtroom.

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THE COURT:

No, I think you're right.

You're doing a

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great job.

And the public will read your comments that you've

7

just made.

And you articulated it better than I possibly could

8

have.

So good for you.

9

But, again, this transcript will be made public by

10

tomorrow, as soon as the court reporter can finish it, unless

11

someone asks me to stay that pending an appeal to the Court of

12

Appeals, which I would do just out of -- so as not to prejudice

13

the appeal.

14

But if you're not going to take an appeal or seek a writ

15

of mandate then -- writ of mandate, really, then there is no

16

point in delaying.

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MR. EHRLICH:

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THE COURT:

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MR. GONZÁLEZ:

May I have one moment?

Yes.
Your Honor, because I know how

20

important this issue is to our client, we need to consult with

21

them.

22

They're not here.

I would just ask -- I would request 24 hours to consult

23

with them.

24

any further relief that we intend to seek.

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And we'll let you know within 24 hours if there's

THE COURT:

By noon tomorrow, you need to let me know

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1

whether or not you definitely are going to seek a writ of

2

mandate from the Court of Appeals, and the timetable.

3

long and drawn out, I will deny.

If it's

And this will go public.

4

If it is going to be very expedited to the Court of

5

Appeals, then I would consider staying my hand, keeping this

6

under wraps.

7

to think about it or that "We intend to do it."

8

do it.

9

But what you cannot do is say you need more time
You've got to

And you've got to tell me that you'll get it on file by

10

Friday or by Monday.

11

something we ought to just delay, delay, delay, delay so

12

that -- so it's just a delay game.

13
14

Very quickly.

Because this is not

The chances that the Court of Appeals would say that this
ought not to be public, in my view, are pretty small.

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MR. GONZÁLEZ:

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THE COURT:

Thank you, Your Honor.

All right.

So noon tomorrow.

So I will

17

ask the court reporter not to put this on the public record

18

until further order of the Court.

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All right.

Are we done.

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MR. EHRLICH:

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MR. GONZÁLEZ:

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MR. VERHOEVEN:

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THE COURT:

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25

Thank you.
Yes, Your Honor.

Thank you.

Thank you.

All right.

(At 2:55 p.m. the proceedings were adjourned.)
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CERTIFICATE OF REPORTER

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I certify that the foregoing is a correct transcript
from the record of proceedings in the above-entitled matter.

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DATE:

Wednesday, March 29, 2017

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______________________________________________

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Katherine Powell Sullivan, CSR #5812, RMR, CRR
U.S. Court Reporter

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