10 ms·

How is Uber supposed to prove that they don't have the files? I'm asking purely from a legal / process perspective - would they have to turn over all their data

by defen 10y ago

How is Uber supposed to prove that they don't have the files? I'm asking purely from a legal / process perspective - would they have to turn over all their data to discovery, or something? If they legitimately don't have the files, how could they satisfy the judge? Or is it not possible that they don't have the files? What if Levandowski has the files on his home computer or something but they never touched Uber's system?

bradleyjg 10y ago
That's not really the issue. The issue is whether the judge is going to impute Levandowski's failure to cooperate to Uber. From the transcript: MR. GONZÁLEZ (Uber's lawyer): So, Your Honor, first of all, we have searched and we are in the process of searching all of our computers for the sorts of information that you referred to. And if we find those documents, we intend to produce those. In addition, Your Honor, we are searching Uber's computer that was assigned to all three of the people that are mentioned in the complaint. We are searching all of their individual Uber computers. We're really here to talk about two things that are related. One is, anything that Mr. Levandowski may or may not have on his own -- let's just assume hypothetically that he's got something at home -- that is not something we have access to. 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. THE COURT: Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court." 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." ... THE COURT: This is not a discovery thing. And if he doesn't testify to that at the deposition, well, I guess Uber -- you know, Uber is -- if you think this is going to help you, my preliminary view of it is it's not going to help you; and that if there's not a clear-cut path to showing that those 14,000 documents weren't used, then you're looking at a preliminary injunction. On the other hand, maybe you can convince me that those 14,000 documents somehow none of them were used. Okay. That's a possibility. That has occurred to me that that's true. I just don't know. I don't know. But if Mr. Levandowski is unwilling to say -- hey, listen, I read in the newspaper that he said he did it so that he could do work at home. That's what I read in the newspaper. I don't know. So, look, if he's not willing to come clean, then that looks bad in a civil lawsuit. In a civil lawsuit. Now, for criminal purposes, okay, maybe he's got the right to take the Fifth Amendment. But for civil purposes, there's a thing called adverse inferences. MS. DUNN (Uber's other lawyer): I think one point we want to reinforce -- this actually sounds a lot like what Your Honor is saying -- is that if Your Honor is in the situation where he must draw an adverse inference against Mr. Levandowski, we would ask you to keep open the possibility in your mind that the adverse inference should not be drawn against Uber, which is a separate party. And it is our responsibility to come in and show to you that we have not used this and that we're differently situated. So in that respect we agree. THE COURT: Okay. I will say this: I'm not going to prejudge the issue without seeing what your record is. And it's conceivable, it's conceivable that that would fly. But it's also conceivable that I would draw the adverse inference against the employer who has the guy, who's taking the Fifth Amendment, who runs the company. To me that is a -- I don't know. I don't know what I would do.
- manyoso 10y ago
  Sounds like he is. The guy still runs the part of Uber's company that is under question here. They could fire him, but they have not. They want their cake - not being penalized for his adverse inference - while eating it too - letting him run the part of the company that is in question. And they have not denied that he took the files in question. With no one disputing it Google's claim stands and that alone, with or without adverse inference, might be enough for the prelim injunction.
  - AnimalMuppet 10y ago
    Or at least for Google to say, in effect, "fire the guy, or we'll get a preliminary injunction".
  - dx034 10y ago
    Which says a lot about the company. In most industries, stealing from your former employer would get you fired immediately. Especially if it draws the company itself in a lawsuit. Usually the first action is to suspend the employee and cut all access to demonstrate that you don't support the behaviour. The way Uber acts looks a lot like they want to profit from the stolen files.
    - candiodari 10y ago
      > stealing from your former employer would get you fired immediately Since that would pretty much be an admission of guilt, you leave out an important detail here. This will only happen if your new employer both believes you did it, and that they will lose the case and get an unacceptable penalty imposed on them as a result. If they intend to defend themselves, the behavior would be reversed : Legal would strongly object to your firing (or quitting) until the case is over, including all appeals and the terms for any further appeals are over and done with.
- 08-15 10y ago
  > Uber has the authority to say to its employees, "If you have anything at home you bring it in here Wait, what? In the opinion of the court, a company has the authority to demand that their employee hands over the contents of his personal computer? That doesn't sound right... please, somebody tell me the US judicial system isn't that retarded!
dragonwriter 10y ago
> What if Levandowski has the files on his home computer As part of discovery, Uber searched personal computers of some employees (ones who weren't, to be sure, asserting the Fifth.) It's kind of their problem if their own executive most central to the case won't let them do that; that's Judge Alsup's point.
revelation 10y ago
https://en.wikipedia.org/wiki/Adverse_inference https://en.wikipedia.org/wiki/Adverse_inference Levandowski is asserting his right to remain silent and right now that is sinking Ubers ability to fight any preliminary injunction, given he is working in the exact leading capacity at Uber that these files pertain.
- mbreese 10y ago
  I've got to assume that not helping your employer's defense in a case like this has got to be a fire-able offense. Then at least Uber could sue him too in order to claim some degree of innocence. (Not that it would necessarily work - I doubt it would, but it's got to be a better strategy than this one).
  - revelation 10y ago
    And the judge even suggests as much - Uber could order him to testify (in the civil suit with Uber as defendant) or fire him if he refuses. But he continues working there today. Though it is difficult to imagine what he is going to say to counteract the very strong impression of some cloak and dagger data theft. And even if against all odds he comes up with some believable story, it's not like Waymo need him to make their case. IIRC, the start of this whole case was some board manufacturing house sending Waymo an Uber design that looked very much like their own. So the moment they move into expert testimony on the similarity of the two product designs Uber is going to be royally screwed.
  - candiodari 10y ago
    IANAL. However, some thoughts for your consideration: California is an at-will state and this doesn't matter. Walking into your employer's office is a fireable offence in California. So yes, he can be fired for this. What that would achieve, other than looking like an admission of guilt (ironically this may guarantee his continued employment at Uber unless they are prepared to give up their self-driving car department entirely to this case. He may be very sure about his position until this case - and all the appeals that follow are entirely done. After that, yeah he'll be fired. That's a decade from now). Frankly I do believe that the odds are good that Mr. Levandowski has in fact hired a lawyer, and has decided that the would rather use the protections the criminal justice system offers him personally rather than risking $600 million (or more) and jail time. The problem is that anything used in a court case becomes part of the public record and can be used in other court cases, including the separate criminal case against Mr. Levandowski. So may I ask, if your lawyer told you that. You own, let's say $700 million. You could either maximally defend your employer, and through that risk 85%-90% of your net worth and jail time, or you could maximally defend yourself and create as high a burden as possible for Google/Waymo to achieve anything against you personally. If his contract either with Uber or Google conflicts with this, I believe (without research) that it does not matter : a contract does not have the necessary weight to override constitutional amendments unless explicitly permitted in the relevant amendment. Google has filed a police complaint, thereby offering this option to Mr. Levandowski, and there's no backing out now. I believe any good lawyer would tell Mr. Levandowski to do this. For very, very good reasons.
akiselev 10y ago
(IANAL) Imagine this was a criminal case where person A is charged with hiring person B to kill person C. Exhibit A is a forum post made by person A asking someone to assassinate person C for $15,000, exhibit B is a $15,000 check from person A to person B, and exhibit C is the gun used to kill person C, legally purchased by person A a few months ago and left at the scene of the crime with person B's fingerprints on it. When called to testify in the trial, person B just claims the 5th amendment and contributes zero evidence either way to the trial. How do you prove that person A didn't hire person B to kill person C? That is easily enough evidence to satisfy a jury's "reasonable doubt" so how can you get out of such a predicament? That's how bad it is for Uber. The above example is a no-win scenario for person A unless you can convince the jury that the check or the gun were planted by the police (or were otherwise fabricated evidence). Uber can't do that because Google's case is so strong and no one is able to deny the theft of all the files.
- willglynn 10y ago
  This is a civil case, so Waymo's burden isn't "reasonable doubt", it's "preponderance of the evidence". In other words: is it more likely than not that Otto stole their tech from Waymo? This is a much easier bar to clear as a plaintiff. It's the defense's job to make the case that it's more likely than not that they didn't do whatever they're accused of doing. In this case specifically, one side has extensive computer records that strongly suggest wrongdoing, and the other side hasn't yet produced any evidence -- or even any statements -- contradicting that. Good luck, guys.
- montycantsin 10y ago
  No, that's bad for our justice system. It sounds like it isn't able to keep up with current times.
- ExactoKnight 10y ago
  Without knowing the law, it seems like Uber could construct a viable legal defence around admitting that they inappropriately got access to these files, while simultaneously arguing that they should not face an injunction blocking work on self-driving technology, because the current technology they're developing differs significantly enough from the proprietary tech Google is trying to claim ownership over.
mtgx 10y ago
From what I gather the judge is only saying that things look very bad for Uber/their employee as it is. So he's basically telling them "Help me out here, and show us the evidence so we can see for ourselves if things are as bad as Google is showing them to be. Otherwise we just have Google's evidence to go on, and it's looking very bad for you!"
deleted 10y ago
[deleted]
ChuckMcM 10y ago
> What if Levandowski has the files on his home > computer or something but they never touched Uber's > system? One of the things that surprised me about Google's employee agreement was that by signing it, the employee gives permission to Google to search any and all digital devices associated with the employee whether or not they are owned by Google. When I asked an employment lawyer about it he suggested it was fairly boilerplate (if a bit extreme) and designed to combat situations exactly like this, party A sues the employer based on behavior of employee B who may have been doing nefarious things 'off book'. So in this case Uber presumably has a similar clause in their employment agreement and are searching relevant employees devices for evidence of the files.
- hollander 10y ago
  How are they going to do this? Can they enter his house and then search his computer and disks? Take anything and ask for his password to decrypt them? If they simply ask him, and he wouldn't want them to find these files, he could delete them or put them on an encrypted stick that they don't know about. How does this work???
  - SolarNet 10y ago
    You can give up many of your constitutional rights to other people or corporations. Like privacy. They could ask him for a password and he would either tell them or be fired. Though not all Google employees sign this, just the Project X experimental ones.
  - jdmichal 10y ago
    It works the same as any other contract works. You ask the other party to fulfill their obligations according to the contract they signed -- in this case, submitting their systems for review. If they refuse, then you take them to court for breach of contract.
- vidarh 10y ago
  Yikes. Most jurisdictions I've worked a clause like that would be entirely unenforcable. In Norway, employer even have only limited rights to access things like your employer owned devices if they are personal to you, on the basis that it would be an invasion of privacy unless a lot of steps have been taken to prevent you from accessing or storing personal information on it. Though in a case like this where they have evidence that implies wrongdoing, that would be sufficient to search equipment the employer owns or have financed. The barrier for searching private equipment is massively higher, though, and would normally require going to court. Personally I'd never consider working for anyone that demanded a clause like what you outlined. I understand their liability concerns, but the at the same time if they won't trust me, then I can't trust them.
TheCondor 10y ago
I have a friend who went through something like this. First off, depending upon the nature of the exact charges there are situations where if it appears you lied or hid or intentionally destroyed evidence the court can find against you and just assume the worst when punishing. So there is a reason to be honest. Second, if the plaintiff desires it, they can sue you and your employer both. Name you both in the same suit. It binds you together and drives you apart at the same time. Let the law suit hang for a while and many people would want to just quit and try to settle, your employer could end up suing you in that case, especially if you doing that damages or appears to damage them. Maybe worse, say the company has the data somewhere and you destroyed your computer to prevent searching, you look like a total liar. How it works is a trusted forensics guy that you hire, he copies all of your stuff. The lawyers hash out some agreements, your lawyers protect your interests but it's a discovery process that they are agreeing on. Think of it as search terms, they come up with some number of search terms related to the charges. Your lawyers are trying to protect your rights and limit the searches to what is alleged. its not supposed to be fishing. It's a game of sorts though, like a number of terms will be agreed to and then your lawyers want the other guys to waste them on bad searches. Then you pay your guy to search your data and report the findings to the court. He says he found x files with their copyright or that it looks like you formatted your drive the day after you got served or other things. And it's evidence in the case.

by defen 10y ago

bradleyjg 10y ago

That's not really the issue. The issue is whether the judge is going to impute Levandowski's failure to cooperate to Uber. From the transcript: MR. GONZÁLEZ (Uber's lawyer): So, Your Honor, first of all, we have searched and we are in the process of searching all of our computers for the sorts of information that you referred to. And if we find those documents, we intend to produce those. In addition, Your Honor, we are searching Uber's computer that was assigned to all three of the people that are mentioned in the complaint. We are searching all of their individual Uber computers. We're really here to talk about two things that are related. One is, anything that Mr. Levandowski may or may not have on his own -- let's just assume hypothetically that he's got something at home -- that is not something we have access to. 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. THE COURT: Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court." 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." ... THE COURT: This is not a discovery thing. And if he doesn't testify to that at the deposition, well, I guess Uber -- you know, Uber is -- if you think this is going to help you, my preliminary view of it is it's not going to help you; and that if there's not a clear-cut path to showing that those 14,000 documents weren't used, then you're looking at a preliminary injunction. On the other hand, maybe you can convince me that those 14,000 documents somehow none of them were used. Okay. That's a possibility. That has occurred to me that that's true. I just don't know. I don't know. But if Mr. Levandowski is unwilling to say -- hey, listen, I read in the newspaper that he said he did it so that he could do work at home. That's what I read in the newspaper. I don't know. So, look, if he's not willing to come clean, then that looks bad in a civil lawsuit. In a civil lawsuit. Now, for criminal purposes, okay, maybe he's got the right to take the Fifth Amendment. But for civil purposes, there's a thing called adverse inferences. MS. DUNN (Uber's other lawyer): I think one point we want to reinforce -- this actually sounds a lot like what Your Honor is saying -- is that if Your Honor is in the situation where he must draw an adverse inference against Mr. Levandowski, we would ask you to keep open the possibility in your mind that the adverse inference should not be drawn against Uber, which is a separate party. And it is our responsibility to come in and show to you that we have not used this and that we're differently situated. So in that respect we agree. THE COURT: Okay. I will say this: I'm not going to prejudge the issue without seeing what your record is. And it's conceivable, it's conceivable that that would fly. But it's also conceivable that I would draw the adverse inference against the employer who has the guy, who's taking the Fifth Amendment, who runs the company. To me that is a -- I don't know. I don't know what I would do.

manyoso 10y ago
Sounds like he is. The guy still runs the part of Uber's company that is under question here. They could fire him, but they have not. They want their cake - not being penalized for his adverse inference - while eating it too - letting him run the part of the company that is in question. And they have not denied that he took the files in question. With no one disputing it Google's claim stands and that alone, with or without adverse inference, might be enough for the prelim injunction.
- AnimalMuppet 10y ago
  Or at least for Google to say, in effect, "fire the guy, or we'll get a preliminary injunction".
- dx034 10y ago
  Which says a lot about the company. In most industries, stealing from your former employer would get you fired immediately. Especially if it draws the company itself in a lawsuit. Usually the first action is to suspend the employee and cut all access to demonstrate that you don't support the behaviour. The way Uber acts looks a lot like they want to profit from the stolen files.
  - candiodari 10y ago
    > stealing from your former employer would get you fired immediately Since that would pretty much be an admission of guilt, you leave out an important detail here. This will only happen if your new employer both believes you did it, and that they will lose the case and get an unacceptable penalty imposed on them as a result. If they intend to defend themselves, the behavior would be reversed : Legal would strongly object to your firing (or quitting) until the case is over, including all appeals and the terms for any further appeals are over and done with.
08-15 10y ago
> Uber has the authority to say to its employees, "If you have anything at home you bring it in here Wait, what? In the opinion of the court, a company has the authority to demand that their employee hands over the contents of his personal computer? That doesn't sound right... please, somebody tell me the US judicial system isn't that retarded!

dragonwriter 10y ago

> What if Levandowski has the files on his home computer As part of discovery, Uber searched personal computers of some employees (ones who weren't, to be sure, asserting the Fifth.) It's kind of their problem if their own executive most central to the case won't let them do that; that's Judge Alsup's point.

revelation 10y ago

https://en.wikipedia.org/wiki/Adverse_inference https://en.wikipedia.org/wiki/Adverse_inference Levandowski is asserting his right to remain silent and right now that is sinking Ubers ability to fight any preliminary injunction, given he is working in the exact leading capacity at Uber that these files pertain.

mbreese 10y ago
I've got to assume that not helping your employer's defense in a case like this has got to be a fire-able offense. Then at least Uber could sue him too in order to claim some degree of innocence. (Not that it would necessarily work - I doubt it would, but it's got to be a better strategy than this one).
- revelation 10y ago
  And the judge even suggests as much - Uber could order him to testify (in the civil suit with Uber as defendant) or fire him if he refuses. But he continues working there today. Though it is difficult to imagine what he is going to say to counteract the very strong impression of some cloak and dagger data theft. And even if against all odds he comes up with some believable story, it's not like Waymo need him to make their case. IIRC, the start of this whole case was some board manufacturing house sending Waymo an Uber design that looked very much like their own. So the moment they move into expert testimony on the similarity of the two product designs Uber is going to be royally screwed.
- candiodari 10y ago
  IANAL. However, some thoughts for your consideration: California is an at-will state and this doesn't matter. Walking into your employer's office is a fireable offence in California. So yes, he can be fired for this. What that would achieve, other than looking like an admission of guilt (ironically this may guarantee his continued employment at Uber unless they are prepared to give up their self-driving car department entirely to this case. He may be very sure about his position until this case - and all the appeals that follow are entirely done. After that, yeah he'll be fired. That's a decade from now). Frankly I do believe that the odds are good that Mr. Levandowski has in fact hired a lawyer, and has decided that the would rather use the protections the criminal justice system offers him personally rather than risking $600 million (or more) and jail time. The problem is that anything used in a court case becomes part of the public record and can be used in other court cases, including the separate criminal case against Mr. Levandowski. So may I ask, if your lawyer told you that. You own, let's say $700 million. You could either maximally defend your employer, and through that risk 85%-90% of your net worth and jail time, or you could maximally defend yourself and create as high a burden as possible for Google/Waymo to achieve anything against you personally. If his contract either with Uber or Google conflicts with this, I believe (without research) that it does not matter : a contract does not have the necessary weight to override constitutional amendments unless explicitly permitted in the relevant amendment. Google has filed a police complaint, thereby offering this option to Mr. Levandowski, and there's no backing out now. I believe any good lawyer would tell Mr. Levandowski to do this. For very, very good reasons.

akiselev 10y ago

(IANAL) Imagine this was a criminal case where person A is charged with hiring person B to kill person C. Exhibit A is a forum post made by person A asking someone to assassinate person C for $15,000, exhibit B is a $15,000 check from person A to person B, and exhibit C is the gun used to kill person C, legally purchased by person A a few months ago and left at the scene of the crime with person B's fingerprints on it. When called to testify in the trial, person B just claims the 5th amendment and contributes zero evidence either way to the trial. How do you prove that person A didn't hire person B to kill person C? That is easily enough evidence to satisfy a jury's "reasonable doubt" so how can you get out of such a predicament? That's how bad it is for Uber. The above example is a no-win scenario for person A unless you can convince the jury that the check or the gun were planted by the police (or were otherwise fabricated evidence). Uber can't do that because Google's case is so strong and no one is able to deny the theft of all the files.

willglynn 10y ago
This is a civil case, so Waymo's burden isn't "reasonable doubt", it's "preponderance of the evidence". In other words: is it more likely than not that Otto stole their tech from Waymo? This is a much easier bar to clear as a plaintiff. It's the defense's job to make the case that it's more likely than not that they didn't do whatever they're accused of doing. In this case specifically, one side has extensive computer records that strongly suggest wrongdoing, and the other side hasn't yet produced any evidence -- or even any statements -- contradicting that. Good luck, guys.
montycantsin 10y ago
No, that's bad for our justice system. It sounds like it isn't able to keep up with current times.
ExactoKnight 10y ago
Without knowing the law, it seems like Uber could construct a viable legal defence around admitting that they inappropriately got access to these files, while simultaneously arguing that they should not face an injunction blocking work on self-driving technology, because the current technology they're developing differs significantly enough from the proprietary tech Google is trying to claim ownership over.

mtgx 10y ago

From what I gather the judge is only saying that things look very bad for Uber/their employee as it is. So he's basically telling them "Help me out here, and show us the evidence so we can see for ourselves if things are as bad as Google is showing them to be. Otherwise we just have Google's evidence to go on, and it's looking very bad for you!"

deleted 10y ago

[deleted]

ChuckMcM 10y ago

> What if Levandowski has the files on his home > computer or something but they never touched Uber's > system? One of the things that surprised me about Google's employee agreement was that by signing it, the employee gives permission to Google to search any and all digital devices associated with the employee whether or not they are owned by Google. When I asked an employment lawyer about it he suggested it was fairly boilerplate (if a bit extreme) and designed to combat situations exactly like this, party A sues the employer based on behavior of employee B who may have been doing nefarious things 'off book'. So in this case Uber presumably has a similar clause in their employment agreement and are searching relevant employees devices for evidence of the files.

hollander 10y ago
How are they going to do this? Can they enter his house and then search his computer and disks? Take anything and ask for his password to decrypt them? If they simply ask him, and he wouldn't want them to find these files, he could delete them or put them on an encrypted stick that they don't know about. How does this work???
- SolarNet 10y ago
  You can give up many of your constitutional rights to other people or corporations. Like privacy. They could ask him for a password and he would either tell them or be fired. Though not all Google employees sign this, just the Project X experimental ones.
- jdmichal 10y ago
  It works the same as any other contract works. You ask the other party to fulfill their obligations according to the contract they signed -- in this case, submitting their systems for review. If they refuse, then you take them to court for breach of contract.
vidarh 10y ago
Yikes. Most jurisdictions I've worked a clause like that would be entirely unenforcable. In Norway, employer even have only limited rights to access things like your employer owned devices if they are personal to you, on the basis that it would be an invasion of privacy unless a lot of steps have been taken to prevent you from accessing or storing personal information on it. Though in a case like this where they have evidence that implies wrongdoing, that would be sufficient to search equipment the employer owns or have financed. The barrier for searching private equipment is massively higher, though, and would normally require going to court. Personally I'd never consider working for anyone that demanded a clause like what you outlined. I understand their liability concerns, but the at the same time if they won't trust me, then I can't trust them.

TheCondor 10y ago

I have a friend who went through something like this. First off, depending upon the nature of the exact charges there are situations where if it appears you lied or hid or intentionally destroyed evidence the court can find against you and just assume the worst when punishing. So there is a reason to be honest. Second, if the plaintiff desires it, they can sue you and your employer both. Name you both in the same suit. It binds you together and drives you apart at the same time. Let the law suit hang for a while and many people would want to just quit and try to settle, your employer could end up suing you in that case, especially if you doing that damages or appears to damage them. Maybe worse, say the company has the data somewhere and you destroyed your computer to prevent searching, you look like a total liar. How it works is a trusted forensics guy that you hire, he copies all of your stuff. The lawyers hash out some agreements, your lawyers protect your interests but it's a discovery process that they are agreeing on. Think of it as search terms, they come up with some number of search terms related to the charges. Your lawyers are trying to protect your rights and limit the searches to what is alleged. its not supposed to be fishing. It's a game of sorts though, like a number of terms will be agreed to and then your lawyers want the other guys to waste them on bad searches. Then you pay your guy to search your data and report the findings to the court. He says he found x files with their copyright or that it looks like you formatted your drive the day after you got served or other things. And it's evidence in the case.