Uber consultant makes concession in Waymo trade secrets trial

SAN FRANCISCO — It was a rough day for ride-hailing app maker Uber Technologies Inc. in the trade secrets trial in which autonomous driving company Waymo LLC has accused its rival of recruiting the head of its engineering team to acquire confidential information.

Whether it was clever time management by Waymo’s legal team or a coincidence, the last thing the jury heard in court Wednesday was that the engineer, Anthony Levandowski, likely made a false statement to cybersecurity experts hired by Uber to vet whether he was bringing anything to their company that could lead to future litigation. Waymo LLC v. Uber Technologies Inc. et al., 17-CV00939 (N.D. Cal., filed Feb. 23, 2017).

Eric M. Friedberg, one of the leaders of the forensics and cybersecurity consulting firm hired by Uber, Stroz Friedberg, seemed to make an attempt to cut his client some slack by responding to a question by one of Waymo’s attorneys with the suggestion that Levandowski may have just had a bad memory when he misreported details of his computer use.

Waymo attorney Charles K. Verhoeven, a partner at Quinn Emanuel Urquhart & Sullivan LLP, was prepared for exactly that statement. He quickly pointed Friedberg to forensic evidence demonstrating that, despite Levandowski’s claim that he had completely forgotten about several data storage devices in his possession, he had accessed those same devices only a month earlier.

“While Levandowski was searching his home to locate all devices, he ‘discovered’ that he had this,” Verhoeven said. “That’s not credible now that you know the last access date of the [hard drive], is it?”

“Probably not,” Friedberg replied.

Verhoeven pointed out that Levandowski deleted 24,000 files from a folder on his computer with a now-outdated name for Waymo’s driverless car project, Chauffeur, and the name of a server Waymo employees used to house data, “the SVN server.”

These were among more than 100,000 files Levandowski deleted around the time period when he was negotiating with Uber to make a move to the company. Verhoeven contended those files were transferred to the external hard drive that Levandowski allegedly lied about before being deleted from the original computer.

Freidberg testified that forensic evidence indicated the computer was attached to the hard drive on March 8, 2016, a month after Levandowski left Waymo. The consultant said Levandowski initially told him he hadn’t used the external hard drive since January 2015.

Friedberg said Uber wanted his firm to speed up the investigation into Levandowski’s devices so that it could be completed by April 11, 2016. He didn’t know it at the time, but that was the day when Uber officially agreed to acquire Levandowski’s brand new company, Ottomotto, only months after he left Waymo.

The witness testified that his team would never have been able to meet that new deadline, which was requested with very short notice, but they were able to send a preliminary report to Uber before the acquisition.

Verhoeven demonstrated that the preliminary report identified a variety of documents that the forensic firm determined were from Waymo. The firm’s analysts described each of the files in a spreadsheet, using the codename “Aspen” as a stand-in for Waymo.

The files were described with terms such as “Aspen confidential and proprietary presentation re: self driving cars,” “picture of a component of a self driving car” and “spreadsheet containing list of part quantities and costs.”

Uber attorneys have tried to separate the company from Levandowski’s conduct and explain to the jury that it’s possible for a new employee to violate the law without the company knowing.

Susman Godfrey LLP partner Bill Carmody, who represents Uber, said in opening statements that none of these items found on Levandowski’s devices constitute trade secrets.

Verhoeven also attempted to paint Uber’s process for approving the acquisition of Levandowki’s company as rushed and sloppy, pointing to an email in which Friedberg told an in-house Uber attorney, “We’ve reviewed less than 1% of the data we need to analyze,” 10 days before the deal was completed.

Earlier in the day, Verhoeven grilled former Uber CEO Travis Kalanick about text messages he exchanged with Levandowski, including one where he told the engineer, “We need to think through the strategy to take all the shortcuts we can find.”

Verhoeven also played a video clip for the jury that Levandowski had sent to Kalanick, suggesting he should use it in a meeting. The video featured actor Michael Douglas giving his character Gordon Gekko’s “greed is good” speech from the movie, “Wall Street.”