Case 3:17-cv-00939-WHA Document 677 Filed 06/21/17 Page 1 of 19

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
 charlesverhoeven@quinnemanuel.com
David A. Perlson (Bar No. 209502)
 davidperlson@quinnemanuel.com
Melissa Baily (Bar No. 237649)
 melissabaily@quinnemanuel.com
John Neukom (Bar No. 275887)
 johnneukom@quinnemanuel.com
Jordan Jaffe (Bar No. 254886)
 jordanjaffe@quinnemanuel.com
50 California Street, 22nd Floor
 San Francisco, California 94111-4788
Telephone:
(415) 875-6600
Facsimile:
(415) 875-6700

 Attorneys for WAYMO LLC


UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA



SAN FRANCISCO DIVISION

 WAYMO LLC,

CASE NO. 3:17-cv-00939



 UBER TECHNOLOGIES, INC.;
OTTOMOTTO LLC; OTTO TRUCKING
 LLC,

PLAINTIFF WAYMO LLC’S NOTICE OF
MOTION AND MOTION FOR ORDER
TO SHOW CAUSE WHY DEFENDANTS
SHOULD NOT BE HELD IN CONTEMPT
OF THE PRELIMINARY INJUNCTION
ORDER (Dkt. 426) AND EXPEDITED
DISCOVERY ORDER (Dkt. 61)



[PUBLIC REDACTED VERSION]



Plaintiff,
vs.

Defendants.






Date:
July 27, 2017
Time:
8:00 a.m.
Ctrm:
8, 19th Floor
Judge:
Honorable William H. Alsup
Trial Date: October 10, 2017








WAYMO’S MOTION FOR ORDER TO SHOW CAUSE

 Case 3:17-cv-00939-WHA Document 677 Filed 06/21/17 Page 2 of 19

1 TO DEFENDANTS UBER TECHNOLOGIES, INC., OTTOMOTTO LLC, AND OTTO
2 TRUCKING LLC, AND THEIR COUNSEL OF RECORD:
3

PLEASE TAKE NOTICE that on July 27, 2017 on 8:00 a.m., or as soon thereafter as the

4 matter may be heard, in the courtroom of the Honorable William Alsup at the United States
5 District Court for the Northern District of California, 450 Golden Gate Ave., San Francisco,
6 California, Plaintiff Waymo LLC (“Waymo”) shall and hereby does move the Court for an Order
7 to Show Cause why Defendants Uber Technologies, OttoMotto LLC, and Otto Trucking LLC
8 should not be held in contempt of the Court’s Preliminary Injunction Order (Dkt. 426) and
9 Expedited Discovery Order (Dkt. 61) for: (1) failing to “exercise the full extent of their corporate,
10 employment, contractual, and other authority” to cause their agent Stroz Friedberg to return all
11 materials in Stroz Friedberg’s possession that Anthony Levandowski downloaded from Waymo’s
12 servers; (2) failing to timely notify Waymo and the Court about the apparent destruction of five
13 discs of downloaded materials; (3) failing to “exercise the full extent of their corporate,
14 employment, contractual, and other authority” to cause their agent, Morrison & Foerster, LLP
15 (“MoFo”) to return the downloaded materials; and (4) failing to “exercise the full extent of their
16 corporate, employment, contractual, and other authority” to cause Otto Trucking’s officer, Mr.
17 Levandowski, to return the downloaded materials.
18

Waymo’s motion is based on this notice of motion and supporting memorandum of points

19 and authorities, the supporting declaration of Patrick Schmidt and accompanying exhibits, reply
20 briefing in further support of this motion and supporting declarations and accompanying exhibits,
21 as well as other written or oral argument that Waymo may present to the Court.
22
23 DATED: June 21, 2017

QUINN EMANUEL URQUHART & SULLIVAN, LLP

24
25
26

By

/s/ Charles K. Verhoeven
Charles K. Verhoeven
Attorneys for Plaintiff Waymo LLC

27
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1

TABLE OF CONTENTS
Page

2
3 INTRODUCTION ..............................................................................................................................1
4 STATEMENT OF FACTS.................................................................................................................2
5 I.
6

DEFENDANTS HAVE BEEN UNDER AN OBLIGATION TO PRODUCE THE
DOWNLOADED MATERIALS SINCE MARCH 2017 ......................................................2

II.

THE COURT’S PI ORDER REQUIRES DEFENDANTS TO USE THE FULL
SCOPE OF THEIR AUTHORITY TO COMPEL ALL OF THEIR OFFICERS
AND AGENTS TO RETURN THE DOWNLOADED MATERIALS .................................3

III.

DEFENDANTS FAIL TO ASK THEIR AGENT STROZ TO RETURN THE
DOWNLOADED MATERIALS ...........................................................................................4

10 IV.

ON JUNE 8 UBER SERVES AN INTERROGATORY RESPONSE STATING
THAT SOME OF THE DOWNLOADED MATERIALS WERE DESTROYED IN
MARCH OF LAST YEAR ....................................................................................................6

7
8
9

11
12 V.
13
14 VI.

DEFENDANT OTTO TRUCKING FAILS TO EXERCISE ITS FULL
AUTHORITY TO CAUSE MR. LEVANDOWSKI TO RETURN THE
DOWNLOADED MATERIALS ...........................................................................................6
DEFENDANTS FAIL TO EXERCISE THEIR FULL AUTHORITY TO CAUSE
THEIR AGENT, MOFO, TO RETURN THE DOWNLOADED MATERIALS .................7

15
ARGUMENT .....................................................................................................................................8
16
17

I.

DEFENDANTS ARE IN CONTEMPT FOR FAILING TO TAKE ALL STEPS
TO CAUSE STROZ TO RETURN THE DOWNLOADED MATERIALS .........................9

18

A.

Defendants Violated the PI Order and Expedited Discovery Order With
Respect to Stroz ..........................................................................................................9

B.

Defendants’ Violation Was “Beyond Substantial Compliance” ..............................10

C.

Defendants’ Violation Is Not Based on a Good Faith and Reasonable
Interpretation of the PI Order or Expedited Discovery Order ..................................11

19
20
21
22 II.

DEFENDANTS ARE IN CONTEMPT FOR FAILING TO TAKE ALL STEPS
TO CAUSE MOFO TO RETURN THE DOWNLOADED MATERIALS ........................13

23
III.

DEFENDANTS ARE IN CONTEMPT FOR FAILING TO TIMELY DISCLOSE
THE DESTRUCTION OF FIVE DISCS OF DOWNLOADED MATERIALS .................13

25 IV.

DEFENDANT OTTO TRUCKING IS IN CONTEMPT FOR FAILING TO TAKE
ALL CORPORATE STEPS TO PRESSURE MR. LEVANDOWSKI TO RETURN
THE DOWNLOADED MATERIALS ................................................................................14

24

26

27 CONCLUSION ................................................................................................................................15
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1

TABLE OF AUTHORITIES

2

Page

3 Cases
4 Perez v. i2a Techs., Inc.,
No. C 15-04963 WHA, 2015 WL 7753330 (N.D. Cal. Dec. 2, 2015) ......................................... 8
5 Perez v. RMRF Enter., Inc.,
No. C 13-80059 SI, 2014 WL 3869935 (N.D. Cal. Aug. 6, 2014) .................................. 8, 10, 11
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1
2

INTRODUCTION
The Court has issued multiple Orders requiring Defendants to return to Waymo the more

3 than 14,000 files stolen by Anthony Levandowksi. First, on March 16, the Court’s Expedited
4 Discovery Order ordered Defendants to “produce for inspection all files and documents
5 downloaded by Anthony Levandowski” by March 31. (Dkt. 61 at 2 ¶ 4.) After Defendants
6 refused to turn over any of the stolen files, the Court issued a second Order (the Preliminary
7 Injunction Order), this time ruling that “Defendants must immediately and in writing exercise the
8 full extent of their corporate, employment, contractual, and other authority to (a) prevent Anthony
9 Levandowski and all other officers, directors, employees, and agents of defendants from
10 consulting, copying, or otherwise using the downloaded materials; and (b) cause them to return the
11 downloaded materials and all copies, excerpts, and summaries thereof to Waymo (or the Court) by
12 MAY 31 AT NOON.” (Dkt. 426 at 23 ¶ 2.) Once again, the compliance deadline came and went
13 without the return of a single one of the misappropriated files.
14

Defendants have never disputed that some of the stolen files are in the hands of Stroz

15 Friedberg (“Stroz”), a digital forensics firm that Defendants retained as an agent in 2016 to
16 conduct due diligence in connection with Uber’s contemplated acquisition of the Otto Defendants.
17 Nor has anyone ever disputed that Mr. Levandowski still has the downloaded files. Moreover, just
18 days ago Boies Schiller Flexner (“BSF”) revealed that another one of Defendants’ agents —
19 Morrison & Foerster LLP (“MoFo”) — also has been sitting on some of the stolen files for over a
20 year. Nevertheless, in flagrant disregard of two Court Orders, not a single one of the downloaded
21 files has been returned to Waymo to date. Meanwhile, Stroz remains Defendants’ agent in this
22 very litigation, Mr. Levandowski remains a senior officer with full stock privileges at Otto
23 Trucking, and MoFo remains counsel of record for Uber and Ottomotto.
24

Nor is this Defendants’ only willful violation of the Court’s Orders. In addition to

25 ordering the production of any downloaded materials, the Court’s March 16 Expedited Discovery
26 Order required that “[i]f any part of said downloaded materials has been deleted, destroyed, or
27 modified, then defendants shall state the full extent thereof and produce all documents bearing on
28 said deletion, destruction, or modification.” (Dkt. 61 at 2 ¶ 4.) No statement of any destruction
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1 was provided pursuant to the Court’s Order by the March 31 deadline. Yet, over two months later,
2 Defendants Uber’s and OttoMotto’s June 5 response to Waymo’s expedited interrogatory revealed
3 that documents were destroyed, allegedly at Uber’s direction, back in March 2016:
On or about March 11, 2016, Mr. Levandowski reported to [Travis] Kalanick,
Nina Qi and Cameron Poetzscher at Uber as well as Lior Ron that he had
identified five discs in his possession containing Google information. Mr.
Kalanick conveyed to Mr. Levandowski in response that Mr. Levandowski should
not bring any Google information into Uber and that Uber did not want any
Google information. Shortly thereafter, Mr. Levandowski communicated to Uber
that he had destroyed the discs.

4
5
6
7
8
9

(Ex. 1 at 4.)1
There is no avoiding the plain fact that Defendants have willfully violated two Court

10
11
12

Orders. Waymo respectfully requests that the Court promptly issue an Order to Show Cause why
Defendants should not be held in contempt.
STATEMENT OF FACTS

13
14

I.

DEFENDANTS HAVE BEEN UNDER AN OBLIGATION TO PRODUCE THE
DOWNLOADED MATERIALS SINCE MARCH 2017

15

On March 16, 2017, the Court issued its Expedited Discovery Order in this case, which set

16 a March 31 deadline for Defendants to “produce for inspection all files and documents
17 downloaded by Anthony Levandowski, Sameer Kshirsagar, or Radu Raduta before leaving
18 plaintiff’s payroll and thereafter taken by them.” (Dkt. 61 at 2 ¶ 4.) The Expedited Discovery
19 Order also stated: “If any part of said downloaded material has been deleted, destroyed, or
20 modified, then defendants shall state the extent thereof and produce all documents bearing on said
21 deletion, destruction, or modification” by the same March 31 deadline. (Id.) Defendants did not
22 produce any of the downloaded materials by this March 31 deadline, nor did they report on the
23 destruction of any such materials. Instead, Defendants provided redacted privilege logs between
24 April 10 and April 13 that were supposedly responsive to the Court’s Order. (Dkts. 272-2, 272-4,
25 & 272-6.)
26
27

Unless otherwise noted, citations herein to “Ex. __” shall refer to the accompanying
28 Declaration of Patrick Schmidt in Support of this Motion.
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1

Notably, Defendants’ privilege logs redacted the identity of the agent that performed due

2 diligence for Defendant Uber’s potential acquisition of the Otto Defendants. After Defendants’
3 redactions were rejected by both this Court and the Federal Circuit, Defendants finally admitted
4 that this due diligence agent was Stroz. As discussed below, Stroz is also the very entity that
5 Defendants retained in this case to purportedly search Defendants’ computer networks for the
6 downloaded materials. (Statement of Facts § III, infra.)

8

THE COURT’S PI ORDER REQUIRES DEFENDANTS TO USE THE FULL
SCOPE OF THEIR AUTHORITY TO COMPEL ALL OF THEIR OFFICERS AND
AGENTS TO RETURN THE DOWNLOADED MATERIALS

9

On May 11, 2017, the Court issued its Preliminary Injunction Order (“PI Order”). (Dkt.

7 II.

10 426.) Initially, the PI Order found that “Waymo has made a strong showing that Levandowski
11 absconded with over 14,000 files from Waymo, evidently to have them available to consult on
12 behalf of Otto and Uber. As of the date of this order, those files have not been returned and likely
13 remain in Levandowski’s possession. The record further indicates that Uber knew or at least
14 should have known of the downloading but nevertheless proceeded to bring Levandowski and
15 Otto on board.” (Id. at 7.) The PI Order further found that “at least some information from those
16 files, if not the files themselves, has seeped into Uber’s own LiDAR development efforts.” (Id. at
17 17.)
18

Given these findings, the PI Order set forth a detailed set of actions that Defendants must

19 take. Relevant to this Motion, the PI Order held that “Defendants must immediately and in
20 writing exercise the full extent of their corporate, employment, contractual, and other authority to
21 (a) prevent Anthony Levandowski and all other officers, directors, employees, and agents of
22 defendants from consulting, copying, or otherwise using the downloaded materials; and (b) cause
23 them to return the downloaded materials and all copies, excerpts, and summaries thereof to
24 Waymo (or the Court) by MAY 31 AT NOON.” (Id. at 23 ¶ 2.) “Downloaded materials” were
25 defined as “all materials that Anthony Levandowski downloaded from Waymo and kept upon
26 leaving Waymo’s employment.” (Id. at 22 ¶ 1.)
27
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1 III.
2
3
4

DEFENDANTS FAIL TO ASK THEIR AGENT STROZ TO RETURN THE
DOWNLOADED MATERIALS
Stroz is Defendants’ agent in connection with the due diligence that Defendants conducted

as to Uber’s potential acquisition of the Otto entities. (Dkt. 370 ¶¶ 9-10.) Indeed, counsel for
Defendants Uber and Otto repeatedly called Stroz their “agent” at a recent discovery hearing

5
before Judge Corley in relation to this work. (5.25.17 Hearing Tr. at 24:6-7; 38:5-12; 53:4-9.) As
6

Defendants have stated, the main thrust of Stroz’s work was “to conduct an investigation

7
regarding the activities of Mr. Levandowski, Mr. Ron, and certain other former Google employees
8
who had joined Otto, surrounding their respective departures from Google and onboarding to
9

Otto.” (Dkt. 370 at ¶ 9 (emphasis added).) Otto Trucking has also claimed Stroz is its agent.

10
(E.g., Dkt. 572 at 1-2.) As the Court is aware, Waymo claims that Mr. Levandowski stole
11
12
13

confidential Waymo files and provided them to Defendants for use in Defendants’ self-driving car
efforts. Thus, these stolen files (i.e., the “downloaded materials”) would have been front and
center in Stroz’s investigative efforts, a fact that neither Stroz nor Defendants has ever denied.2

14
As part of this due diligence, Stroz prepared a Due Diligence Report that is the subject of a motion
15
16

to compel by Waymo and is part of the “relentless concealment of likely probative evidence, both
documentary and testimonial, from Waymo’s view” that the Court noted in its PI Order. (Dkt. 426

17
at 8.)
18

Stroz is also Defendants’ agent in this very litigation, as they are acting as Defendants’

19
discovery vendor and digital forensics consultant. (Dkt. 175-1 (Faulkner Decl.)). By its own
20
testimony, Stroz has provided extensive e-discovery services for Defendants in this case related to
21

Defendants’ alleged search of their computer networks for the downloaded materials. (Id. at ¶¶ 3-

22
6.)
23
On May 31, Waymo asked Defendants whether they had instructed their agent Stroz to
24

return any copies of the downloaded materials in Stroz’s possession. Defendants Uber and

25
26
2

Indeed, recent briefing by Mr. Levandowski suggests that Stroz has imaged the entire contents
of Mr. Levandowski’s personal computer and has these image files in its possession. (Dkt. 583 at
28 8 & Dkt. 652 at 3.)
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1 OttoMotto said they had not: “We have not directed Stroz to do anything with respect to any
2 allegedly downloaded files because Uber does not have control over Mr. Levandowski’s personal
3 property, including any property he may have provided to Stroz. Uber cannot compel a third party
4 to produce documents that it does not control.” (Ex. 2 at 3 (5.31.17 email from W. Ray to A.
5 Roberts).) In a subsequent meet-and-confer between the parties, Uber and OttoMotto reiterated
6 their position that the downloaded materials are Mr. Levandowski’s “personal property and he put
7 very tight restrictions on the ability even of Stroz to share that with anyone . . .” (Id. at 1 (6.1.17
8 email from M. Baily to W. Ray).) Otto Trucking similarly stated that they had not directed or
9 asked Stroz to return the downloaded materials, giving the same explanation that these materials
10 are Mr. Levandowski’s “property.” (Ex. 3 at 1 (6.14.17 email from J. Judah to S. Brun).)
11

On May 1, Waymo filed a motion to compel production of the Due Diligence Report that

12 Stroz provided to Defendants, along with associated documents. (Dkt. 321.) Defendants
13 Uber/OttoMotto an opposition brief (in which Defendant Otto Trucking joined), contending that
14 the Due Diligence Report was protected by the attorney-client privilege and work product
15 protection and that identifying which documents Stroz selected as exhibits or attachments to the
16 Report would intrude on work product protection. (See generally Dkts. 369, 389.) As noted
17 above, Defendants do not seek to justify their failure to ask Stroz to return the downloaded
18 materials based on privilege, but instead based on the contention that the downloaded materials
19 are somehow Mr. Levandowki’s personal property.
20

On June 12— more than a month after the Court ordered Defendants to “immediately and

21 in writing” exercise their authority over their agents — BSF forwarded to Waymo two letters of
22 the same date, one addressed to Mr. Levandowski and the other addressed to Stroz, that purported
23 to (finally) ask Stroz to return the downloaded files. (Ex. 4.) However, even this letter is plainly
24 less than the full extent of Uber and Ottomotto’s authority. After going through the motions of
25 telling Stroz that Uber and Ottomotto “do not want” Stroz to “retain possession of” or “destroy or
26 delete” the downloaded materials, but rather “want” Stroz to produce them to Waymo, the letter
27 then explains to Stroz that “Uber and Ottomotto do not have the contractual power to order Stroz”
28 to do any of those things. (Id. at 2 ¶ 4.)
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1 IV.
2

ON JUNE 8 UBER SERVES AN INTERROGATORY RESPONSE STATING
THAT SOME OF THE DOWNLOADED MATERIALS WERE DESTROYED IN
MARCH OF LAST YEAR

3

On June 8, Uber served a response to Waymo’s Expedited Interrogatory No. 1. In relevant

4 part, Uber’s response stated:
5

On or about March 11, 2016, Mr. Levandowski reported to Mr. Kalanick, Nina Qi
and Cameron Poetzscher at Uber as well as Lior Ron that he had identified five
discs in his possession containing Google information. Mr. Kalanick conveyed to
Mr. Levandowski in response that Mr. Levandowski should not bring any Google
information into Uber and that Uber did not want any Google information.
Shortly thereafter, Mr. Levandowski communicated to Uber that he had destroyed
the discs. Uber never received those discs, and does not know whether those
discs contained any of the “DOWNLOADED MATERIALS.”

6
7
8
9
10

(Ex. 1 at 4.) Also, in a recent deposition, Mr. Ron — one of the two Managing Members for
Defendant Otto Trucking —

11
. (Ex. 5 (Ron Depo. Tr.) at
12
90:16-94:4, 266:4-14.) Mr. Poetzscher,

(Ex. 6

13
(Poetzscher Depo. Tr.) at 21:24-22:1),
14
(id. at 259:1-7) .
15
V.
16
17
18
19
20

DEFENDANT OTTO TRUCKING FAILS TO EXERCISE ITS FULL AUTHORITY
TO CAUSE MR. LEVANDOWSKI TO RETURN THE DOWNLOADED
MATERIALS
Mr. Levandowski is an officer of Defendant Otto Trucking — specifically, he is Otto

Trucking’s sole Managing Member other than Mr. Ron. Given Otto Trucking’s obligations under
the PI Order to “exercise the full extent of [its] corporate, employment, contractual, and other
authority” to cause Mr. Levandowski to return the downloaded materials, Waymo requested that

21
Otto Trucking take action by
22
(Ex. 3 at 5-6 (6.7.17 email
23
from L. Cooper to J. Cooper et al.).) Otto Trucking responded that it would not or could not take
24
the step. It reasoned that
25
26
27
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1
2

(Id. at 4 (6.8.17 email from Walsh to J. Cooper et al.).) (internal citation

3 omitted). Otto Trucking later doubled down, asserting, despite this Court’s rulings to the contrary
4 (Dkt. 426 at 23 fn. 9, 6.7.17 Hearing Tr. 93:8-24), that taking any action against Mr. Levandowski
5 for refusing to obey the Court’s Order is not only impossible, but would violate Mr.
6 Levandowski’s Fifth Amendment rights:
As reflected in the various agreements,

7
8
9

Further, we believe that attempting to
coerce Mr. Levandowski to agree to take punitive action against himself if he
refuses to waive his 5th Amendment rights raises constitutional issues that are
unique and different from those raised by the Court’s direction to Uber to take
punitive action against Mr. Levandowski. We also do not believe that Judge Alsup
intended to require such action through the preliminary injunction order.

10
11
12
13

14 (Id. at 2 (6.12.17 email from S. Brun to J. Cooper).)
Notably, Mr. Ron testified in deposition that

15
16
17

. (Ex. 5 (Ron Depo. Tr.) at 25:23-26:18, 53:22-54:24.)

18
19 VI.
20
21
22
23
24
25
26
27

DEFENDANTS FAIL TO EXERCISE THEIR FULL AUTHORITY TO CAUSE
THEIR AGENT, MOFO, TO RETURN THE DOWNLOADED MATERIALS
The parties met and conferred on June 1 regarding Defendants’ compliance (or lack

thereof) with Paragraph 2 of the Court’s PI Order, and Waymo promptly memorialized that
discussion on June 2. (Ex. 7 at 3 (6.2.17 J. Judah email to J. Cooper et al.).) On the June 1 meet
and confer, in response to a direct question from Waymo, MoFo represented that “it does not have
any of the materials that Anthony Levandowski downloaded from Waymo and kept upon leaving
Waymo’s employment, regardless of how long he kept them for and whether or not any such
materials qualify as trade secrets or proprietary or confidential information (the ‘downloaded
materials’), or any copies, excerpts, or summaries of the downloaded materials.” (Id.)

28
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1

However, almost two weeks later, on June 12, counsel at BFS (oddly, not MoFo) emailed

2 Waymo to explain that what MoFo had represented on June 1 was not accurate. BFS explained
3 that, “to be sure the record is clear and accurate,” they needed to provide certain “caveats and
4 clarifications” to what MoFo had said on the June 1 call. (Id. at 1.)
5

Significantly, BFS “clarified” that MoFo, Defendants’ agent, did have some of the

6 downloaded materials:
7
8
9
10
11

2. MoFo does not have any downloaded materials (or any copies, excerpts or
summaries thereof), except to the extent that any such material may appear: (1)
excerpted in or as an exhibit to the Stroz Report, which is privileged; and (2) in
certain materials AL and other persons provided to Stroz to which MoFo was
given limited access during the Stroz investigation pursuant to the terms of the
AL-Stroz contract and the protocol governing the investigation, and under strict
conditions preventing MoFo from sharing those materials with anyone, including
Uber.

12 (Id. (emphasis added).) Defendants have never explained why MoFo’s possession of stolen files
13 was not revealed until June 12, why those stolen files were not returned to Waymo on March 31 or
14 May 31, or how the terms of an unproduced contract between two third-parties (Mr. Levandowski
15 and Stroz) could prevent MoFo from returning the stolen files or prevent Defendants from
16 requiring MoFo to do so.
17

ARGUMENT

18

“Federal courts have the power to enforce compliance with their orders. One way is

19 through holding a party in civil contempt.” Perez v. i2a Techs., Inc., No. C 15-04963 WHA, 2015
20 WL 7753330, at *3 (N.D. Cal. Dec. 2, 2015) (Alsup, J.). “To establish a prima facie case for civil
21 contempt, the moving party must establish by clear and convincing evidence that the defendants:
22 (1) violated a court order, (2) beyond substantial compliance, and (3) such violation was not based
23 on a good faith and reasonable interpretation of the order.” Id.; see also Perez v. RMRF Enter.,
24 Inc., No. C 13-80059 SI, 2014 WL 3869935, at *2 (N.D. Cal. Aug. 6, 2014) (same).
25

Applying these factors, Defendants should be held in civil contempt for: (1) failing to

26 “exercise the full extent of their corporate, employment, contractual, and other authority” to cause
27 their agent Stroz Friedberg to return all materials in Stroz Friedberg’s possession that Anthony
28 Levandowski downloaded from Waymo’s servers; (2) failing to timely notify Waymo and the
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1 Court about the apparent destruction of five discs of downloaded materials; (3) failing to “exercise
2 the full extent of their corporate, employment, contractual, and other authority” to cause their
3 agent, Morrison & Foerster, LLP (“MoFo”) to return the downloaded materials; and (4) failing to
4 “exercise the full extent of their corporate, employment, contractual, and other authority” to cause
5 Otto Trucking’s officer, Mr. Levandowski, to return the downloaded materials
6 I.

DEFENDANTS ARE IN CONTEMPT FOR FAILING TO TAKE ALL STEPS TO
CAUSE STROZ TO RETURN THE DOWNLOADED MATERIALS

7
A.
8
9

Defendants Violated the PI Order and Expedited Discovery Order With
Respect to Stroz

As noted above, the Court’s PI Order required Defendants to “exercise the full extent of

10 their corporate, employment, contractual, and other authority” to cause their “officers, directors,
11 employees, and agents” to “return the downloaded materials and all copies, excerpts, and
12 summaries thereof to Waymo (or the Court) by MAY 31 AT NOON.” (Dkt. 426 at 23 ¶ 2.) The
13 Expedited Discovery Order required that Defendants produce these materials by March 31. (Dkt.
14 61 at 2 ¶ 4.)
15

As detailed above (Statement of Facts § II, supra), there is no dispute that Stroz is

16 Defendants’ agent. Yet May 31 (not to mention March 31) has come and gone, and Defendants
17 have refused to use their full authority to persuade or compel Stroz to return any of the
18 downloaded materials that Stroz possesses (as required by the PI Order) so that Defendants could
19 produce these materials (as required by the Expedited Discovery Order). Thus, Defendants have
20 violated both Orders. Nor do Defendants have any reasonable or good faith excuse for this
21 violation, as discussed in Section I(C), infra.
22

Nor, for that matter, have Defendants ever denied that Stroz possesses at least some of the

23 downloaded materials. Indeed, the facts of this case raise a strong inference that Stroz does indeed
24 possess these documents. Consider, for example, the very first privilege log that Defendants
25 produced, in response to the Court’s March 16 order for Defendants to produce the downloaded
26 materials. This document was replete with references to Stroz — though Stroz’s name was
27 originally and improperly redacted. Defendants have provided no explanation (and no explanation
28
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1 is apparent) for why Stroz would have been listed on this privilege log, except that Stroz possesses
2 the downloaded materials that this log was designed to address.
Defendants’ Violation Was “Beyond Substantial Compliance”

3

B.

4

There can be no doubt that Defendants’ violation is “beyond substantial compliance.”

5 Indeed, Defendants have fallen short of substantial compliance in two distinct ways.
6

First, to date, the only effort that Defendants have made to induce or persuade Stroz to

7 return the downloaded materials is Uber’s and Ottomotto’s June 12 letter to Stroz, in which they
8 state that they “want” Stroz to return the downloaded materials but then state in the next breath
9 that they “do not have the contractual power to order Stroz to produce such materials to Waymo.”
10 (Ex. 4 at 2 ¶ 4 (6.12.17 Ltr. from K. Dunn to S. Brown).) The lukewarm and equivocal nature of
11 this letter is underscored by the final substantive sentence, which states that “if Stroz . . . believes
12 it is able to produce any Google Information it may have to Waymo based solely on the wishes
13 expressed by Uber and Ottomotto in this letter, but without the consent of Levandowski, it may do
14 so immediately.” (Id. (emphasis added).) For its part, Otto Trucking has made no request to Stroz
15 at all.
16

Needless to say, this equivocal request falls far short of “exercis[ing] the full extent of

17 [Defendants’] corporate, employment, contractual, and other authority” to compel Stroz to return
18 the downloaded materials. Defendants do not, for example, order Stroz to return these materials.
19 They do not say that they will fire Stroz if Stroz fails to comply. They do not say that they will
20 withhold future business from Stroz if Stroz fails to comply. A lukewarm and equivocal statement
21 that Defendants “want” Stroz to return the downloaded materials simply does not come close to
22 discharging Defendants’ obligation to “exercise the full extent of their corporate, employment,
23 contractual, and other authority” to compel Stroz to return these materials. Thus, Defendants’
24 violation of the PI Order is “beyond substantial compliance.” Perez, 2014 WL 3869935 at *2
25 (“substantial compliance” standard requires that “every reasonable effort has been made to
26 comply.”)
27

Defendants’ violation is also beyond substantial compliance for a different reason. Even if

28 the June 12 letter to Stroz was substantively sufficient to discharge their obligations under the PI
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1 Order, this letter was not sent until June 12. Yet the deadline for Defendants to “exercise the full
2 extent of their corporate, employment, contractual, and other authority” to compel Stroz to return
3 these materials was May 31. The deadline for Defendants to produce these materials under the
4 Expedited Discovery Order was March 31. Thus, Defendants violated the Court’s deadlines by
5 weeks to months, which is far too long a delay to constitute “substantial compliance” —
6 particularly given the sensitive nature of the documents, the risks that Waymo suffers by having
7 these documents in others’ hands, and the compressed nature of this litigation. Clearly Defendants
8 could have sent their letter to Stroz by the Court’s deadlines, had they employed “every reasonable
9 effort” to do so. Perez, 2014 WL 3869935 at *2.
10
11

C.

Defendants’ Violation Is Not Based on a Good Faith and Reasonable
Interpretation of the PI Order or Expedited Discovery Order

There is no good faith reading of the Court’s Orders that would excuse Defendants’

12
conduct. The lead reason that Defendants offered in correspondence for why they did not ask
13
14
15
16
17

Stroz to return the downloaded materials was that these materials are “Mr. Levandowski’s
personal property.” (Ex. 2 at 3 (5.31.17 email from W. Ray to A. Roberts).) This argument is
absurd. The downloaded materials at issue in the PI Order were explicitly defined as “all
materials that Anthony Levandowski downloaded from Waymo and kept upon leaving Waymo’s
employment.” (Dkt. 426 at 22 ¶ 1.) They are not Mr. Levandowski’s property; they are Waymo’s

18
property. Defendants cannot credibly argue that the materials that Mr. Levandowski stole from
19

Waymo have been somehow transmuted into “Mr. Levandowski’s personal property.” Nor

20
(needless to say) could any contract between Mr. Levandowski and Stroz convert these materials
21

from Waymo’s property into Mr. Levandowski’s property.

22
Defendants also stated in correspondence that they would not demand that Stroz turn over
23

the downloaded materials because “Uber does not have control” of these materials and “Uber

24
cannot compel a third party to produce documents that it does not control.” (Ex. 2 at 3 (5.31.17
25
email from W. Ray to A. Roberts); see also Ex. 3 at 1 (6.14.17 email from J. Judah to S. Brun).)
26
But this makes no sense. While Defendants may not presently have physical control over the
27

materials in Stroz’s possession, they do have the power to direct that Stroz produce these materials

28
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1 and to use their full contractual power to persuade Stroz to follow this directive. The PI Order did
2 not demand impossible or superhuman efforts from Defendants, but it did require Defendants to
3 use “the full extent of their corporate, employment, contractual, and other authority” to persuade
4 or direct Stroz to return these materials. This would include, for example, ordering Stroz to return
5 these materials and/or threatening to cut off business ties with Stroz should Stroz refuse to do so.
6 But as detailed in Section I(B) above, Defendants have exercised far less than their “full authority”
7 to pressure Stroz to return the downloaded materials.
8

Finally, while they have not so far proffered it as a reason for their non-compliance with

9 the Court’s Preliminary Injunction Order, Defendants may argue that the deadline for them to use
10 their “full authority” against Stroz has not yet arrived, given the Court’s order extending the PI
11 compliance deadline from May 31 to June 23 “insofar as compliance would implicate either issues
12 raised by non-party Anthony Levandowski’s motion to modify the May 11 provisional relief order
13 (Dkt. No. 466) or privilege disputes currently pending before Judge Corley.” (Dkt. 499.) Yet this
14 argument would be unavailing as well. Mr. Levandowski’s motion to modify the PI Order
15 addresses whether the Court may order Uber to discipline Mr. Levandowski for failing to waive
16 his Fifth Amendment rights; it does not implicate what actions Defendants can or cannot take
17 against Stroz. Moreover, the Court never extended the March 31 deadline in the Expedited
18 Discovery Order, so nothing can excuse Defendants’ failure to try to obtain the downloaded
19 materials from Stroz so that they could be produced by that March 31 deadline.
20

Nor does the privilege dispute now resolved by Judge Corley’s Order of June 5 implicate

21 production of the Stroz Due Diligence Report and its attachments. (See Statement of Facts § II,
22 supra.) Defendants seek to justify their failure to ask Stroz to return the downloaded materials
23 based on the contention that the downloaded materials are somehow Mr. Levandowki’s personal
24 property, not based on privilege. And in the privilege briefing before Judge Corley, Defendants
25 never contended that wholesale production of the files that Mr. Levandowski gave to Stroz would
26 implicate any privilege or protection. It follows a fortiori that Defendants’ ordering Stroz to
27 return these files would not tread on any privilege or protection.
28
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In sum, Defendants’ obligation to order Stroz to return the downloaded materials does not

1

2 implicate Mr. Levandowski’s motion to modify the PI Order, nor does it implicate the privilege
3 dispute. Thus, the deadline for Defendants to comply with their PI Order obligations via-a-vis
4 Stroz remains May 31, not June 23. Yet May 31 has come and gone, and Defendants have not
5 used their “full authority” to direct and pressure Stroz to return the downloaded materials. Thus,
6 Defendants have violated the PI Order.
7 II.

DEFENDANTS ARE IN CONTEMPT FOR FAILING TO TAKE ALL STEPS TO
CAUSE MOFO TO RETURN THE DOWNLOADED MATERIALS

8
As explained in Statement of Facts § VI, supra, BSF has now admitted that MoFo has had
9
copies of at least some the downloaded materials for months now, as part of the Stroz
10

investigation. BSF’s admission means that MoFo misrepresented to Waymo when it stated on

11
June 1 that it did not possess these materials. It also means that MoFo (who is, after all,
12

Defendants’ agent) violated the PI Order by not returning these materials by the May 31 deadline,

13
and violated the Expedited Discovery Order by not returning these materials by March 31.
14
Alternatively, Defendants violated the PI Order by not compelling MoFo to do so.
15
This failure goes far beyond substantial compliance, and there is no good-faith or
16

reasonable reading of the orders that would excuse it. BSF’s June 12 email argued that there were

17
contractual restrictions that prevented MoFo from turning over the downloaded materials.
18
(Statement of Facts § VI, supra.) But contractual restrictions cannot stymie or overcome the
19

Court’s orders. If they could, then any party could relieve itself from a Court order by just

20
entering into a contract forbidding compliance with the order. Needless to say, this is not the law.
21
22

III.

DEFENDANTS ARE IN CONTEMPT FOR FAILING TO TIMELY DISCLOSE
THE DESTRUCTION OF FIVE DISCS OF DOWNLOADED MATERIALS

23

As recounted above, the Court's Expedited Discovery Order required Defendants to

24 disclose, by March 31, whether any of the downloaded materials had been destroyed. Defendants
25 did not disclose any destruction by that date. However, it its June 8 interrogatory response,
26 Defendant Uber disclosed that it has known since shortly after March 11, 2016 that Mr.
27 Levandowski destroyed five discs containing Google information. Uber’s failure to disclose this
28 destruction by March 31 is a blatant violation of the Expedited Discovery Order.
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1

Again, this failure goes far beyond substantial compliance, and there is no good-faith or

2 reasonable reading of the Expedited Discovery Order that would excuse it. Uber did say in its
3 interrogatory response that it “does not know whether those discs contained any of the
4 ‘DOWNLOADED MATERIALS.’” (Ex. 1 at 4.) Yet Uber knew that these discs contained
5 Google information in Mr. Levandowski’s possession. If Uber’s interrogatory response is to be
6 believed, it also was alarmed enough by these discs to emphasize to Mr. Levandowski that he
7 “should not bring any Google information into Uber and that Uber did not want any Google
8 information.” (Id.) Mr. Poetzscher —
9
10

(Ex. 6 at 253-256 (Poetzscher Depo.).) Even if Uber did not “know” to a certainty that the

11 discs contained downloaded materials, these facts and circumstances raise an exceedingly strong
12 inference that the discs did indeed contain downloaded materials — i.e., materials that Mr.
13 Levandowski downloaded from Waymo before leaving Waymo. It is difficult if not impossible to
14 see any other way that Mr. Levandowski could have come to possess five discs of Google/Waymo
15 information in the first place. Thus, for Uber to fairly honor and obey the Expedited Discovery
16 Order, it needed to disclose this destruction by March 31. By failing to do so, Uber is in contempt
17 of the Expedited Discovery Order.
18

Otto Trucking is in contempt of the Expedited Discovery Order for the same reason. As

19 shown in Uber’s interrogatory response and
20
21

Yet, like Uber, Otto Trucking failed to disclose this fact by the

22 March 31 deadline under the Expedited Discovery Order.
23 IV.
24

DEFENDANT OTTO TRUCKING IS IN CONTEMPT FOR FAILING TO TAKE
ALL CORPORATE STEPS TO PRESSURE MR. LEVANDOWSKI TO RETURN
THE DOWNLOADED MATERIALS

25

As noted above, Otto Trucking has failed to take all available corporate steps to pressure

26 Mr. Levandowski to return the downloaded materials. (Statement of Facts § IV, supra.)
27 Specifically,
— should he fail to return the

28
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1 downloaded materials. (Id.) Yet Otto Trucking has refused to take this step. (Id.) By failing to
2 take this significant step, Otto Trucking has failed to comply with the PI Order or Expedited
3 Discovery Order, and its failure falls well short of “substantial compliance.”
4

Nor has Otto Trucking proffered any good faith or reasonable interpretation of the Orders

5 that would excuse its failure. As noted above, Otto Trucking’s only proffered excuse is to say that
6 it cannot take this step
7

But this

8 excuse makes no sense. If Mr. Levandowski —
9

that would simply mean that Otto Trucking

10 (through its Managing Members) has refused to take all steps to compel return of the downloaded
11 materials. In other words, Mr. Levandowski’s recalcitrance would simply be what puts Otto
12 Trucking in contempt of the PI Order.
13
14

By refusing to exercise this power, Otto Trucking is in

15 contempt of the PI Order and Expedited Discovery Order.
16

CONCLUSION

17

For the foregoing reasons, Waymo respectfully requests that the Court issue an Order to

18 Show Cause why Defendants should not be held in civil contempt of the PI Order and Expedited
19 Discovery Order.3
20
21 DATED: June 21, 2017
22

QUINN EMANUEL URQUHART & SULLIVAN,
LLP
By /s/ Charles K. Verhoeven
Charles K. Verhoeven
Attorneys for WAYMO LLC

23
24
25
26
3

Should the Court ultimately find Defendants in contempt, Waymo requests that Waymo be
permitted to propose remedies for contempt commensurate with the Court’s findings, which could
28 include further provisional relief, evidentiary sanctions, and/or adverse inferences.
27

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