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Also from that article: ...as Uber has argued that it can’t release documents related to its acquisition of Otto without violating its employee’s 5th Amendment

Also from that article: ...as Uber has argued that it can’t release documents related to its acquisition of Otto without violating its employee’s 5th Amendment rights. I'm certainly not a lawyer, but that's not at all how I thought the 5th Amendment works.

intrasight 9y ago
Looks that way to me too, according to my reading of this flowchart http://lawcomic.net/guide/?p=2897 http://lawcomic.net/guide/?p=2897 There was no "question" asked. Unless the government said "Would you pretty please perhaps give us those documents?" which I'm assuming they didn't.
- abledon 9y ago
  This Comic is awesome! I will refer to this site whenever I read articles about Court Cases now.
Animats 9y ago
You're missing the context: Judge Alsup: "Even though he is not a defendant here, moreover, Levandowski’s assertion of his Fifth Amendment privilege has obstructed and continues to obstruct both discovery and defendants’ ability to construct a complete narrative as to the fate of Waymo’s purloined files. As a practical matter, it is hard to imagine how consolidating proceedings as to Levandowski and defendants, whether here or in arbitration, could alleviate these difficulties." The judge raises this to show that Levandowski's interests and Uber's interests are not aligned. Thus, consolidating Waymo vs. Levandowski (which doesn't exist) with Waymo vs. Uber is not an option. Thus, Uber can't claim that Levandowski's arbitration contract with Waymo covers Uber's problems. Therefore, Waymo can insist their case against Uber go to trial.
- Pyxl101 9y ago
  I think his point is: isn't that a bogus thing for Uber to claim? That it can't release documents because of someone else's fifth amendment privilege? It's not like Uber is married to Levandowski and has spousal privilege against testifying against him (although Uber sure is acting like they're married!). Can't they simply release the documents because they choose to? I don't see how Uber choosing to release documents that they have access to (which is not even testifying, by the way - it's just complying with discovery) can possibly violate someone else's fifth amendment rights against self-incrimination. Perhaps a lawyer could speculate on whether a claim like this can have any merit.
  - celticninja 9y ago
    Yeah I think that what uber has is called evidence.
  - mdasen 9y ago
    IANAL, but it does seem like a claim that won't hold up in court. I thought I remembered one item that had Judge Alsup noting that Uber could require Levandowski to testify as a condition of employment. If Levandowski refuses to testify, it is then up to Uber to fire him. Uber doesn't get a 5th amendment protection. If one of Uber's employees refuses to comply in a civil suit against Uber, Uber then has the choice of not complying with the court or firing the employee and telling the court that it no longer controls the employee. The employee likewise has the option to testify or be terminated. Ultimately, Uber would prefer to keep the documents secret. As a legal strategy, it makes sense to try anything that might keep the documents secret. If your back is against the wall, you push on any avenue that might get a judge to decide that you don't need to show something damaging - even if it's a long shot. There is something unnerving about being required to incriminate yourself OR go bankrupt. Let's say that Google had sued Levandowski rather than Uber and Levandowski had to either 1) produce the documents that would incriminate him or 2) let Google win a billion dollar lawsuit against him without contesting it. At that point, is there really a meaningful 5th amendment protection if an opponent can just sue you in court and win either by forcing you to waive it or by default?
    - mbreese 9y ago
      At that point, is there really a meaningful 5th amendment protection if an opponent can just sue you in court and win either by forcing you to waive it or by default? But the 5th amendment isn't meant to protect a person in a civil case. It's all about what the government can do in a criminal case. So in your example, there aren't just two options (incriminate yourself OR go bankrupt). There is the potential for a third option: go to prison. Most would say that avoiding the third option is the main goal here. So if you go bankrupt during a civil case because you don't want to self-incriminate, then that's the cost for asserting your 5th amendment rights. The 5th amendment isn't about your protecting assets.
  - 9y ago
uiri 9y ago
The fifth amendment applies to both criminal and civil cases, if the testimony could be used in a criminal prosecution. The judge has already referred this for criminal prosecution, so Levandowski's apprehension about self-incrimination is certainly warranted. If the files only exist on Levandowski's personal machine(s), then Uber can't comply with the court order without Levandowski incriminating himself.
wiseayse 9y ago
You are right. That is not how the Fifth Amendment works. You can only assert your Fifth Amendment rights on your own behalf, not on someone else's behalf. And you can only assert your rights to prevent yourself from incriminating you, not to prevent someone else from incriminating you. (The lawcomic previously linked to has a section on that at http://lawcomic.net/guide/?p=2545 http://lawcomic.net/guide/?p=2545) And even though that is rudimentary Fifth Amendment law, that is nevertheless the argument Levandowski's lawyers made. If you ask me, Levandowski's lawyers really screwed up here. He's not a party to the case, but on April 4 they filed that motion, saying UBER couldn't disclose facts because they could later be used to convict HIM. It's a stupid argument, and they spent 15 pages on it, alternating between the trite and the absurd. That's a good way to piss off a smart judge. The argument was so incoherent, it was hard for the judge to even figure out what they were asking. Another way to piss off a smart judge. And the argument was disingenuous at best, or deceitful at worst, as it flatly mis-stated the holding of the main case it relied on, which actually said this specific argument is wrong. Amazing way to piss off a judge. Their argument boiled down to "Uber and Levandowski have a joint defense agreement, so Uber's lawyers can't disclose what Levandowski's lawyers can't disclose." That's not how a JDL works. All a JDL does is let co-defendants' lawyers share info without popping the attorney-client privilege. It has nothing to do with the Fifth Amendment. And it doesn't make Uber's lawyers Levandowski's. Stupid. But as you read that argument, what they're REALLY saying is "Uber and Levandowski colluded ahead of time, with the awareness that this was some shady shit, to make sure none of this evidence gets disclosed to the court." Or put another way, "Dear Judge: We have an agreement to defraud the court. If we did what you ask, we'd be violating an agreement!" The judge got that message loud and clear. And the very first words of that motion? That the judge had to read over and over again because it was so hard to understand? They practically INVITE a criminal investigation of Levandowski. So, after ruling against them on April 10 (https://www.courttrax.com/wp-content/uploads/2017/04/USDC-CA-N-3-17cv00939-Notice-of-Appeal-sub-229.pdf https://www.courttrax.com/wp-content/uploads/2017/04/USDC-CA...), and STILL getting nowhere with Uber and Levandowski, the judge has now very politely obliged.

intrasight 9y ago

Looks that way to me too, according to my reading of this flowchart http://lawcomic.net/guide/?p=2897 http://lawcomic.net/guide/?p=2897 There was no "question" asked. Unless the government said "Would you pretty please perhaps give us those documents?" which I'm assuming they didn't.

abledon 9y ago
This Comic is awesome! I will refer to this site whenever I read articles about Court Cases now.

Animats 9y ago

You're missing the context: Judge Alsup: "Even though he is not a defendant here, moreover, Levandowski’s assertion of his Fifth Amendment privilege has obstructed and continues to obstruct both discovery and defendants’ ability to construct a complete narrative as to the fate of Waymo’s purloined files. As a practical matter, it is hard to imagine how consolidating proceedings as to Levandowski and defendants, whether here or in arbitration, could alleviate these difficulties." The judge raises this to show that Levandowski's interests and Uber's interests are not aligned. Thus, consolidating Waymo vs. Levandowski (which doesn't exist) with Waymo vs. Uber is not an option. Thus, Uber can't claim that Levandowski's arbitration contract with Waymo covers Uber's problems. Therefore, Waymo can insist their case against Uber go to trial.

Pyxl101 9y ago
I think his point is: isn't that a bogus thing for Uber to claim? That it can't release documents because of someone else's fifth amendment privilege? It's not like Uber is married to Levandowski and has spousal privilege against testifying against him (although Uber sure is acting like they're married!). Can't they simply release the documents because they choose to? I don't see how Uber choosing to release documents that they have access to (which is not even testifying, by the way - it's just complying with discovery) can possibly violate someone else's fifth amendment rights against self-incrimination. Perhaps a lawyer could speculate on whether a claim like this can have any merit.
- celticninja 9y ago
  Yeah I think that what uber has is called evidence.
- mdasen 9y ago
  IANAL, but it does seem like a claim that won't hold up in court. I thought I remembered one item that had Judge Alsup noting that Uber could require Levandowski to testify as a condition of employment. If Levandowski refuses to testify, it is then up to Uber to fire him. Uber doesn't get a 5th amendment protection. If one of Uber's employees refuses to comply in a civil suit against Uber, Uber then has the choice of not complying with the court or firing the employee and telling the court that it no longer controls the employee. The employee likewise has the option to testify or be terminated. Ultimately, Uber would prefer to keep the documents secret. As a legal strategy, it makes sense to try anything that might keep the documents secret. If your back is against the wall, you push on any avenue that might get a judge to decide that you don't need to show something damaging - even if it's a long shot. There is something unnerving about being required to incriminate yourself OR go bankrupt. Let's say that Google had sued Levandowski rather than Uber and Levandowski had to either 1) produce the documents that would incriminate him or 2) let Google win a billion dollar lawsuit against him without contesting it. At that point, is there really a meaningful 5th amendment protection if an opponent can just sue you in court and win either by forcing you to waive it or by default?
  - mbreese 9y ago
    At that point, is there really a meaningful 5th amendment protection if an opponent can just sue you in court and win either by forcing you to waive it or by default? But the 5th amendment isn't meant to protect a person in a civil case. It's all about what the government can do in a criminal case. So in your example, there aren't just two options (incriminate yourself OR go bankrupt). There is the potential for a third option: go to prison. Most would say that avoiding the third option is the main goal here. So if you go bankrupt during a civil case because you don't want to self-incriminate, then that's the cost for asserting your 5th amendment rights. The 5th amendment isn't about your protecting assets.
- 9y ago

uiri 9y ago

The fifth amendment applies to both criminal and civil cases, if the testimony could be used in a criminal prosecution. The judge has already referred this for criminal prosecution, so Levandowski's apprehension about self-incrimination is certainly warranted. If the files only exist on Levandowski's personal machine(s), then Uber can't comply with the court order without Levandowski incriminating himself.

wiseayse 9y ago

You are right. That is not how the Fifth Amendment works. You can only assert your Fifth Amendment rights on your own behalf, not on someone else's behalf. And you can only assert your rights to prevent yourself from incriminating you, not to prevent someone else from incriminating you. (The lawcomic previously linked to has a section on that at http://lawcomic.net/guide/?p=2545 http://lawcomic.net/guide/?p=2545) And even though that is rudimentary Fifth Amendment law, that is nevertheless the argument Levandowski's lawyers made. If you ask me, Levandowski's lawyers really screwed up here. He's not a party to the case, but on April 4 they filed that motion, saying UBER couldn't disclose facts because they could later be used to convict HIM. It's a stupid argument, and they spent 15 pages on it, alternating between the trite and the absurd. That's a good way to piss off a smart judge. The argument was so incoherent, it was hard for the judge to even figure out what they were asking. Another way to piss off a smart judge. And the argument was disingenuous at best, or deceitful at worst, as it flatly mis-stated the holding of the main case it relied on, which actually said this specific argument is wrong. Amazing way to piss off a judge. Their argument boiled down to "Uber and Levandowski have a joint defense agreement, so Uber's lawyers can't disclose what Levandowski's lawyers can't disclose." That's not how a JDL works. All a JDL does is let co-defendants' lawyers share info without popping the attorney-client privilege. It has nothing to do with the Fifth Amendment. And it doesn't make Uber's lawyers Levandowski's. Stupid. But as you read that argument, what they're REALLY saying is "Uber and Levandowski colluded ahead of time, with the awareness that this was some shady shit, to make sure none of this evidence gets disclosed to the court." Or put another way, "Dear Judge: We have an agreement to defraud the court. If we did what you ask, we'd be violating an agreement!" The judge got that message loud and clear. And the very first words of that motion? That the judge had to read over and over again because it was so hard to understand? They practically INVITE a criminal investigation of Levandowski. So, after ruling against them on April 10 (https://www.courttrax.com/wp-content/uploads/2017/04/USDC-CA-N-3-17cv00939-Notice-of-Appeal-sub-229.pdf https://www.courttrax.com/wp-content/uploads/2017/04/USDC-CA...), and STILL getting nowhere with Uber and Levandowski, the judge has now very politely obliged.