Waymo Vs. Uber Battle Heats Up. Levandowski To Plead Fifth Amendment Privilege
File this under things that are too strange to be fiction. Nobody could make this stuff up! Anthony Levandowski used to work for Waymo, the self driving division of Alphabet, which most of us know as Google. In early 2016, he left Waymo and started his own business called Otto that specialized in creating self driving systems for large trucks. Last year, Uber bought Otto for $500 million. (One presumes that Otto is a play on the word “auto, no doubt suggested by a certain famous scene in the movie Airplane!)
It took Waymo 7 years to develop its self driving car technology. Uber is now testing self driving technology that it developed in 7 months. Prior to leaving Waymo, Levandowski downloaded over 14,000 proprietary and confidential files from the Waymo server, including the design for a Lidar circuit board. Waymo knew nothing about any of this until a supplier working with Otto accidentally included Waymo in an e-mail.
Once alerted, Waymo filed suit asking for an injunction against Uber using any of the information it obtained from Levandowski via its acquisition of Otto. The complaint alleges, “Fair competition spurs new technical innovation, but what has happened here is not fair competition. Instead, Otto and Uber have taken Waymo’s intellectual property so that they could avoid incurring the risk, time, and expense of independently developing their own technology.”
“These are very serious allegations, if true,” said Tyler Ochoa, a professor at Santa Clara University School of Law. “The trade secret case by itself is a blockbuster.” It’s “hard to believe they’d put those accusations into print unless they had evidence,” Ochoa told Bloomberg.
This week, Levandowski’s attorney, Miles Ehrlich, informed U.S. District Court Judge William Alsup that his client intends to exercise his right against self incrimination based on the “potential for criminal action” if called to testify in Waymo’s case against Uber. Attorneys for Uber told the court that Levandowski “has a good story to tell” and that if he testifies, his testimony would make it clear that Uber is not taking advantage of any of the information he downloaded from Waymo on the way out the door.
“That would be a legitimate point,” said the judge. “Maybe you can convince me of that.” But first, Levandowski has to agree to testify. “I’m sorry that Mr. Levandowski has got his – got himself in a fix. That’s what happens, I guess, when you download 14,000 documents and take them, if he did. But I don’t hear anybody denying that,” Alsup said.
Then the judge warned Uber’s attorney, “If you think for a moment that I’m going to stay my hand because your guy is taking the Fifth Amendment and not issue a preliminary injunction to shut down that … you’re wrong,” according to a report by Autoblog. The court is considering a temporary restraining order against Uber and has set May 3 as the date when it will hear arguments for a permanent injunction.
Obviously, Waymo’s allegations are not evidence. But the timing of Levandowski’s departure from Waymo and Uber’s success with its autonomous driving cars is, as they say, curious. It will be interesting to see if Uber’s “Nothing to see here. Move along” strategy convinces the judge not to issue a temporary restraining order.