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CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa J. Baily (Bar No. 237649)

 melissabaily@quinnemanuel.com

 John Neukom (Bar No. 275887)

 johnneukom@quinnemanuel.com

 Jordan Jaffe (Bar No. 254886)

 jordanjaffe@quinnemanuel.com

50 California Street, 22nd Floor

San Francisco, California 94111-4788

Telephone: (415) 875-6600

Facsimile: (415) 875-6700

Attorneys for WAYMO LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 

WAYMO LLC,

Plaintiff,

vs.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING LLC,

Defendants.

CASE NO. 3:17-cv-00939

PLAINTIFF WAYMO LLC’S 

OPPOSITION TO DEFENDANTS UBER 

TECHNOLOGIES, INC. AND 

OTTOMOTTO, LLC’S MOTION FOR 

RELIEF FROM AND EMERGENCY 

MOTION FOR STAY OF NONDISPOSITIVE PRETRIAL ORDER OF 

MAGISTRATE JUDGE (DKT. 951) 

Judge: The Honorable William H. Alsup

Trial Date: October 10, 2017

REDACTED VERSION OF DOCUMENT 

SOUGHT TO BE FILED UNDER SEAL

Case 3:17-cv-00939-WHA Document 1035 Filed 07/27/17 Page 1 of 7
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-1- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

Plaintiff Waymo LLC (“Waymo”) submits this brief in opposition to Uber Technologies, Inc. 

and Ottomotto LLC’s (collectively, “Defendants”) Motion for Relief from and Emergency Motion for 

Stay of Non-Dispositive Pretrial Order of Magistrate Judge (Dkt. 951) (the “Motion”). This Court 

should deny the Motion because Waymo’s Requests for Production (“RFPs”) 30, 98, 99, 110, 145, 

and Expedited Interrogatory 24 (collectively, the “Discovery Requests”) properly seek relevant 

information related to Waymo’s allegations from the filing of the complaint, and throughout this 

litigation, of Defendants’ LiDAR and non-LiDAR trade secret theft by and through Anthony 

Levandowski. 

Despite Waymo’s repeated, and long-standing, allegations concerning Uber’s misappropriation 

of non-LiDAR trade secrets, Uber has continuously refused to produce documents or answer an 

interrogatory related to non-LiDAR technology, arguing that this subject matter is irrelevant. Mot. at 

1:18-20. Judge Corley rejected that argument holding that the subject matter is relevant because it is 

“related to what Mr. Levandowski worked on for Uber” and that Waymo’s “requests properly [sought 

that] information.” (Dkt. 951 at 1:22-23.) 

Judge Corley’s Order should be upheld because Defendants have not carried their burden to 

show that it is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a) (emphasis added). It is 

not. Moreover, Judge Corley’s Order, being “[a] magistrate judge's decision in [a] nondispositive

matter[,] is entitled to great deference by the district court.” Artis v. Deere & Co., 276 F.R.D. 348, 

354 (N.D. Cal. 2011) (Alsup, J.) (citation and quotation marks omitted); see also SEC v. Mercury 

Interactive LLC, 2012 WL 4466582, at *3 (N.D. Cal. Sept. 25, 2012) (Alsup, J.) (“A non-dispositive 

order entered by a magistrate must be deferred to unless it is ‘clearly erroneous or contrary to law.’”). 

The Motion should be denied.

This litigation centers around Levandowski’s unauthorized downloads of Waymo trade secrets, 

including his December 11, 2015 download of 9.7 GB of Waymo confidential and proprietary electric 

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-2- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

circuit design files, including electrical schematics, PCB layouts, mechanical drawings, design rules 

and component libraries. (Dkt. 25-47 ¶¶ 23-24.) Of the 9.7 GB of downloaded materials, 7.7 GB—

almost 80%—concerned non-LiDAR technology, such as . (Dkt. 25-31 ¶ 24). 

Thus, Waymo’s requests for non-LiDAR discovery are not a “fishing expedition,” as Defendants 

claim; rather, they are squarely within the broad scope of relevant discovery to which Waymo is 

properly entitled under Federal Rule of Civil Procedure 26. Mot. at 1:9. 

In fact, from the very start of this litigation, and throughout it, Waymo has alleged that 

Defendants misappropriated both LiDAR and non-LiDAR technology. For example, in its Complaint, 

Waymo alleged, inter alia: 

44. . . . Mr. Levandowski’s download included 9.7 GBs of sensitive, secret, and valuable 

internal Waymo information. 2 GBs of the download related to Waymo’s LiDAR technology.

48. After downloading all of this confidential information regarding Waymo’s LiDAR

systems and other technology . . . .

52. Approximately a month before the supply chain manager resigned and despite his 

confidentiality obligations to Waymo, he downloaded from Waymo’s secure network 

Waymo’s confidential supply chain information and other confidential manufacturing 

information . . . . 

(Dkt. 1 (emphasis added).) Defendants’ assertions that Waymo is “expanding discovery,” Mot. at 

3:25; see also id. at 1:3, 3:13, 4:3, are thus unsupportable; non-LiDAR technology has been part of 

Waymo’s case and discovery requests from the very start of this litigation. See infra 4-5. Further,

Defendants’ cited case, Loop AI Labs Inc. v. Gatti, 195 F. Supp. 3d 1107, 1115-16 (N.D. Cal. 2016),

Mot. at 3, is inapposite. Loop concerned whether trade secret disclosures were sufficient for Cal. Civ. 

Proc. Code § 2019.210, which Defendants have never challenged here. Loop did not deal with the 

scope of discovery, the issue before this Court. 

The record also demonstrates that Waymo has provided notice of its allegations regarding nonLiDAR technology. For example, Waymo has made clear it intends to ask Levandowski questions 

Case 3:17-cv-00939-WHA Document 1035 Filed 07/27/17 Page 3 of 7
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-3- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

going beyond LiDAR technology1and deposition questioning has extended to Waymo’s 

.

2

 

Further, in its March 10 trade secret disclosures pursuant to Cal. Civ. Proc. Code § 2019.210

(the same day as Waymo’s preliminary injunction motion), Waymo again expressly identified nonLiDAR trade secrets. For example, in Trade Secret Nos. 108 and 109, Waymo disclosed:

108. 

 

109.

(Dkt. 25-7 at Nos. 108 and 109.) In addition, Waymo’s Trade Secret No. 85 concerned non-LiDAR

information concerning the described as an 

(Dkt. 25-7 at ¶ 85.) This document thus included extensive non-LiDAR technology and information. 

Defendants argue that providing disclosure of non-LiDAR technological information would 

conflict with the underlying purpose of California Civil Procedure Code § 2019.210 and this Court’s 

Order limiting Waymo to “less than ten trade secrets” (Dkt. 563 at 4:1-6), which is to put Defendants 

on sufficient and fair notice to defend itself while “preventin[ing] plaintiff from using the discovery 

 

1

 Dkt. No. 834-4 at ¶¶ 50 (“systems to collect data”), 96 (“LiDAR systems and other 

technology”), 98 (“downloaded the entirety of that design server), 123 (“use the 14,000+ files from 

the design server”), 149 (“Waymo’s entire design server”), 295, 296, 331-33, 336-39, 343-46, 351-52, 

354, 357, 362-63, 369-70, 378, 384-86, 392, 394-96 (“PCBs”).

2

 See Bares Tr. 146:10-20, 271:24-272:4; Gruver Tr. 16:1-9, 20:2-7; Haslim Tr. 57:11-14; 

Salesky Tr. 21:14-23; Willis Tr. 68:20-69:9. 

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-4- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

process as a means to obtain the defendant’s trade secrets.” Mot. at 1-2 (quoting Neothermia Corp. v. 

Rubicor Med., Inc., 345 F. Supp. 2d 1042, 1044 (N.D. Cal. 2014)). First, this Court’s Order regarding 

the number of Waymo’s trade secrets in no way detracts from Defendants’ Federal Rule of Civil 

Procedure obligations to provide Waymo with discovery of relevant information. Defendants cite no 

authority suggesting otherwise. Moreover, Waymo should not be prejudiced by being forced to 

choose between pursuing its LiDAR versus non-LiDAR technology allegations without the benefit of 

full discovery to enable it to make an informed choice with respect to which of its numerous claims of 

trade secret misappropriation and patent infringement to pursue at trial. To hold otherwise would 

enable Defendants to benefit from their evasive discovery delay tactics to run down the clock to the 

August 1 deadline at Waymo’s expense. Indeed, Defendants have effectively done so given that the 

August 1 deadline is only a few days away. 

Second, the Discovery Requests are not contrary to trade secret disclosure objectives because 

Defendants were given sufficient and fair notice that the trade secrets at issue comprise both LiDAR

and non-LiDAR technology by Waymo’s complaint, trade secret disclosures, and throughout 

discovery in this litigation. See supra 2-3. Defendants’ reliance on Computer Econ., Inc. v. Gartner 

Grp., Inc., 50 F. Supp. 2d 980, 985 (S.D. Cal. 1999), Mot. at 2, holding that discovery could not be 

conducted until trade secrets had been alleged with sufficient particularity, is misplaced given, as 

noted, Defendants have never challenged the sufficiency of Waymo’s trade secret disclosures under 

Cal. Civ. Proc. Code § 2019.210 and discovery has been proceeding.3 Finally, it is disingenuous to 

claim that Waymo’s Discovery Requests related to non-LiDAR technology, made to support 

allegations it has made throughout the litigation, are contrived as a mechanism to obtain Defendants’ 

 

3

 Moreover, Gartner requires “reasonable notice of the issues which must be met at the time of 

trial’ and ‘reasonable guidance in ascertaining the scope of appropriate discovery.” 50 F. Supp. 2d at 

984. Waymo’s trade secret disclosures do just that. 

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-5- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

trade secrets as opposed to simply proving theft of its own trade secrets—80% of which concern nonLiDAR technology. Id. 

Defendants contend that Waymo has “not identif[ied] any evidence of use by Uber of nonLiDAR trade secrets” and that Waymo’s references to the contents of Levandowski’s 9.7 GB 

download is “unavailing” because Waymo “has no evidence that Uber ever acquired or possessed any 

of those files.” Mot. at 3 (emphasis in original). Even if true, that is not because there is no evidence. 

Instead, it is because Defendants have repeatedly refused to comply with Waymo’s reasonable, longstanding Discovery Requests for relevant information which pre-date this motion by months, having 

been made on May 9 (RFP 30), May 11 (RFPs 98, 99, 110, and 145), and June 6 (Expedited 

Interrogatory No. 24). That is, Waymo sought non-LiDAR discovery immediately and during the 

expedited discovery granted by the Court, not “just a few days before its August 1 deadline to narrow 

its trade secret claims for trial,” despite Defendants' inaccurate contentions otherwise. Id. at 1. 

Defendants’ argument that Waymo did not raise non-LiDAR trade secrets in its preliminary 

injunction motion is a red herring. Mot. at 3. Defendants had notice of Waymo’s non-LiDAR trade 

secrets from Waymo’s trade secret disclosures (Dkt 25-7) on March 10, the same day as Waymo filed 

its preliminary injunction motion (Dkt. 24). Moreover, even if Waymo had not asserted non-LiDAR

trade secrets at the preliminary injunction phase (it did), that in no way bars Waymo from relying on 

non-LiDAR trade secrets now, particularly where Defendants have been on notice for months of nonLiDAR allegations. See supra 1-2. Otherwise, plaintiffs like Waymo would be severely prejudiced 

given allegations on preliminary injunction, preceding discovery, are necessarily preliminary. See, 

e.g., Apple Inc. v. Samsung Elecs., 12 cv 630 (N.D. Cal 2012) (infringement of four patents alleged on 

preliminary injunction (‘647, ‘604, ‘721, 172) (Dkt. No. 10) but trial alleged infringement of five 

patents, including two not raised on preliminary injunction (‘959, ‘414), (Dkt. No. 1884)).

For all the reasons given above, Defendants’ Motion should be denied in its entirety. 

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-6- CASE NO. 3:17-cv-00939-WHA

WAYMO’S OPP. TO DEFENDANTS’ MOTION FOR RELIEF FROM PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 951)

DATED: July 27, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

Case 3:17-cv-00939-WHA Document 1035 Filed 07/27/17 Page 7 of 7