Waymo and Uber attorneys squabble over forensic evidence

SAN FRANCISCO — The trustworthiness of a report prepared by forensic experts for Uber Technologies Inc. was the main source of debate at trial Thursday as the ride-hailing company attempts to fend off allegations that it stole trade secrets from autonomous car tech company Waymo LLC.

Uber hired forensic analysts at consulting firm Stroz Friedberg to dig into digital devices owned by Anthony Levandowski, ostensibly to ensure that he wasn’t bringing any confidential information from Waymo when he switched employers. But Waymo’s forensic expert testified that the Stroz report was incomplete if that was indeed its aim.

Andy Crain said Stroz never received several of the devices to which Levandowski transferred files and that one of those external hard drives had the same name as the code name Uber used while planning its acquisition of Levandowski’s startup company. Waymo LLC v. Uber Technologies Inc. et al., 17-CV00939 (N.D. Cal., filed Feb. 23, 2017).

Levandowski briefly left Waymo to form his own company, Ottomotto, but emails introduced as evidence suggest he was actually negotiating to join Uber before he left Waymo and formed his startup. Waymo is an Alphabet Inc. company that started out as Google’s driverless car project.

Much of the testimony has involved following a trail of digital bread crumbs Levandowski left behind as he transferred files from his Waymo laptop to his personal devices. Levandowski is not expected to testify in the trial, as he has been relying upon his Fifth Amendment right to remain silent.

Waymo did not name Levandowski as a defendant because he had an arbitration agreement in his employment contract with the company. By keeping the cases separate, Waymo ensured that its litigation against Uber would remain in court and not get pulled into arbitration.

Uber incurred another difficult moment at trial when U.S. District Judge William Alsup read a prepared statement to the jury concerning its actions during discovery.

Alsup told the jury Uber had been instructed to inform him and Waymo by March 31, 2017 of any evidence suggesting that Levandowski destroyed or modified any files related to the case.

“Uber knew Levandowski destroyed five disks of Google information that was in his possession,” Alsup said. “Uber did not disclose this information to Waymo until approximately two months after the March 31 deadline,” he said.

Alsup said the jurors would have to decide for themselves whether that information impacted their impression of the case.

The judge warned Uber months ago that the jury would hear this message to compensate Waymo because Uber attorneys failed to follow his instructions. Alsup chose not to give the jury the complete picture, that the trial date was moved back twice due to delays caused by “new” evidence Waymo attorneys accused Uber of deliberately hiding.

There were also difficult moments for Waymo. An engineer who worked with Levandowski at Waymo and a startup admitted that he and some of his colleagues would sometimes bring home older models of their technology and that he turned one of them into an art display on a trip to the arts and music festival Burning Man.

The engineer, Pierre Droz, said he later realized that his handling of the technology was foolish after he began to suspect that Levandowski was meeting with Uber.

Uber attorneys portrayed the Waymo employees as loose with security, suggesting they didn’t value the alleged trade secrets as highly as the company’s lawyers want the jury to believe.

But discussions of Stroz’s forensic report dominated the day.

Company co-president Eric M. Friedberg testified he found no evidence that Levandowski transferred files to any other devices, but admitted he was never given access to four of the devices that were attached at one point to the engineer’s personal laptop.

Crain, vice president of forensics for another consulting firm called Lighthouse, said he didn’t need to have access to those devices to prove that Levandowski transferred Waymo files to them.

The jury heard earlier in the trial that experts determined the exact moment when Levandowski unplugged a memory card from his work laptop, after downloading 14,000 files from Waymo’s server. Crain said he discovered that the same memory card was plugged into Levandowski’s personal laptop less than a minute later.

Crain said he couldn’t be sure that his investigation captured every single movement of the files, but he was able to identify that they were later moved from Levandowski’s personal laptop onto an external hard drive at least once.

“This leads me to conclude the Stroz investigation was not effective at quarantining Google files,” he said.