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01980-00104/9473878.9

WAYMOíS RENEWED MOTION IN LIMINE NO. 1

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa 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 LLCíS RENEWED 

MOTION IN LIMINE 1

Date: September 27, 2017

Time: 8:00 a.m.

Ctrm: 8, 19th Floor

Judge: Honorable William H. Alsup

Trial Date: October 10, 2017 
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01980-00104/9473878.9

-1-

WAYMOíS RENEWED MOTION IN LIMINE NO. 1

Waymo hereby renews its motion in limine to preclude Defendants from presenting any 

evidence or argument that Anthony Levandowski downloaded Waymo trade secrets to ensure he 

would receive his bonus (the ìbonus theoryî) (ìMIL 1î). The Court previously tentatively denied 

Waymoís MIL 1 without prejudice (Dkt. 874), contemplating renewal at trial. However, as detailed 

below, discovery and Orders precluding evidence relating to this theory make this MIL ripe now.

I. WAYMO HAS BEEN DENIED DISCOVERY INTO THE BONUS THEORY.

Uber intends to contend that Levandowski downloaded the misappropriated materials to 

ensure that Google would pay his full bonus. (Ex. A.) Uber based this theory on Levandowskiís

alleged explanation to former Uber CEO Travis Kalanick and Uber attorney Angela Padilla during 

a March 29 meeting. (Id.) The Court, however, held this conversation was privileged and the 

June 1 deadline to waive privilege passed so Uber is precluded from introducing evidence of that 

meeting at trial. (Dkt. 1267.) Judge Corley further held that Uber could not waive Levandowskiís 

attorney-client privilege over the March 29 conversation, such that Waymo could not take any 

discovery into the March 29 conversations or other privileged conversations on the same subject 

matter. (Dkt. 1311; Dkt. 1414, 8/28/17 Hearing Tr., 43:3-4.) Because Uberís entire bonus theory 

arose from this privileged conversation that Uber is precluded from relying upon and Waymo has 

not been allowed to pursue discovery into it, Uber should not be permitted to advance the bonus 

theory. Uber may still try to present this theory using supposed circumstantial evidence. (Ex. A.) 

Permitting Uber to do so would allow Uber to reap the benefits of its tardy attempt to waive 

privilege, while Waymo still is precluded from taking full discovery as to Uberís theory.1

 As a 

sanction for Uberís ìslick practice of including its lawyers in meetings and communications and 

deciding after the fact if a lawyer was actually included for the purpose of providing legal advice, 

all in accordance with what happens to be convenient for Uberís caseî (Dkt. 1267), Uber should 

not be allowed to advance the theory that is the fruit of that ìslick practice.î

 

1

 The Court also ordered that Waymo must take care to not ìopen the doorî to the March 29 

conversation. (Dkt. 1267.) If Waymo must rebut the bonus theory, Uber will undoubtedly argue 

that Waymo has opened the door in one way or the other, putting Waymo at a disadvantage at trial 

and waste Court time and resources on this baseless and excluded theory. 
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01980-00104/9473878.9

-2-

WAYMOíS RENEWED MOTION IN LIMINE NO. 1

II. THE BONUS THEORY SHOULD BE EXCLUDED BECAUSE UBER DID NOT 

PROPERLY DISCLOSE IT DURING DISCOVERY.

Uber additionally should not be allowed to advance the bonus theory because Uber failed 

to properly disclose it in discovery. Fed. R. Civ. P. 37(c)(1). ìIf a party fails to provide 

information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use 

that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the 

failure was substantially justified or is harmless.î Id. Uber had multiple opportunities to disclose 

the bonus theory and supporting facts, but failed to do so. For example, on March 16, this Court 

ordered that by March 31, 2017, ìdefendants shall produce for inspection all files and documents 

downloaded by Anthony Levandowski . . . If any part of said downloaded material has been 

deleted, destroyed, or modified, then defendants shall state the extent thereof and produce all 

documents bearing on said deletion, destruction, or modification.î (Dkt. 61) (emphasis added.) 

Uber did not disclose to the Court on March 31 that Levandowski downloaded the materials at 

issue or that he purportedly deleted them. (Dkt. 1082-1.) Expedited Interrogatory No. 1 asked 

Uber to ìIDENTIFY the locations and custody of all known copies of THE DOWNLOADED 

MATERIALSî and ìIf any of the copies have [sic] no longer exist, explain DEFENDANTSí full 

knowledge as to the destruction.î (Ex. B.) Uber responded on June 5 and did not disclose that 

Levandowski downloaded the files and later deleted them. (Dkt. 1082-1; Ex. B.) And despite the 

Courtís deadline for ì[a]ll initial disclosures under FRCP 26î to be ìcompleted by June 21, 2017, 

on pain of preclusionî (Dkt. 562), Uberís June 21 Supplemental Initial Disclosures do not mention 

the bonus theory. (Ex. C.) Uber did not supplement its Initial Disclosures again until August 

31óone week after the close of fact discovery and without leave of Courtóto disclose that 

Padilla had knowledge of this issue. (Ex. D.) 

Uberís failure to disclose the bonus theory and the facts underlying it was not substantially 

justified, but was part of Uberís ìslick practiceî of asserting privilege until Uber decided that it 

may be advantageous to rely on privileged material. (Dkt. 1267.) Nor is Uberís failure to 

properly disclose the facts underlying its theory harmless because Uber seeks to benefit from the 

late-disclosed, privileged conversation while Waymo is denied the opportunity to take discovery 
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01980-00104/9473878.9

-3-

WAYMOíS RENEWED MOTION IN LIMINE NO. 1

on all communications regarding the subject matter of the March 29 conversation. Given that

Uberís discovery violations are neither substantially justified nor harmless, Uber should be 

precluded from presenting the bonus theory at trial.2 

III. STATEMENTS AS TO WHY LEVANDOWSKI SAID HE STOLE WAYMO 

TRADE SECRETS ARE INADMISSIBLE HEARSAY.

The only witness that can competently testify as to the reason why the files were 

downloaded is Levandowski, but he refuses to testify on this issue. Testimony from other 

witnesses regarding what Levandowski allegedly told them is inadmissible hearsay. Even if the 

March 29 conversation were not already precluded, testimony about Levandowskiís statements 

during that conversation would be inadmissible hearsay. Fed. R. Evid. 601. Uber also intends to 

rely on statements that Levandowski allegedly made to others regarding his bonus, pointing to 

, Brian McClendon, and Daniel Gruver. (Ex. A.) Introducing testimony from other 

witnesses that Levandowski told them he was worried about his bonus to prove that Levandowski 

was worried about his bonus is inadmissible hearsay. Fed. R. Evid. 601. 

IV. THE BONUS THEORY SHOULD BE PRECLUDED ON RULE 403 GROUNDS.

Lastly, Uberís bonus theory should be excluded pursuant to Federal Rule of Evidence 403. 

The minimal (at best) probative value of unreliable theories as to why Levandowski did what he did is 

ìsubstantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the 

jury, undue delay, [and] wasting time.î Fed. R. Evid. 403. It is unfairly prejudicial to Waymo 

because Uber had or has access to Levandowski, but Waymo cannot cross-examine Levandowski and 

was denied the chance to take discovery on the subject matter discussed at the March 29 meeting. 

Permitting Uber to argue the bonus theory also risks undue delay and wasting time because it 

will require the parties to present evidence regarding Waymoís bonus program, which is otherwise 

irrelevant. Uber laid out the evidence it intends to rely upon in an interrogatory response, and Uber is 

limited to the disclosed evidence. (Ex. A.) The testimony and documents that Uber intends to rely 

 

2

 If, despite the arguments herein, the Court permits Uber to present the bonus theory, 

Waymo will request leave to call witnesses that were not on Waymoís June 21 Supplemental 

Initial Disclosures or June 22 Corrected Supplemental Initial Disclosures. Defendants already 

deposed each of the witnesses at issue, so there would be no prejudice to Defendants.
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01980-00104/9473878.9

-4-

WAYMOíS RENEWED MOTION IN LIMINE NO. 1

upon is not otherwise relevant to the issues in the case. Moreover, Uberís purported evidence 

supporting the bonus theory is not compelling. (Ex. A.) The cited documents do not show that 

Levandowski was worried about his bonus when he downloaded misappropriated materials, or say 

that is why he stole Waymo trade secrets. The cited evidence consists of hearsay statements, copies of 

the Chauffeur Bonus Plan (ìCBPî) and related documents, and testimony about the Plan. The 

ìstrongestî evidence Uber has is that testified that he thought he received his termination 

payout late, and Levandowski texted his HR Business Partner at Google in August 2016 to ask when 

he could expect his termination payout. (Exs. E, H-S.) 

Although weak, Waymo would be forced to rebut that evidence. Among other things, Waymo 

will show that: under the CBP, the first bonus amount was to be determined by calculating the product 

of the participantís first bonus allocation percentage on the first exchange date, and the applicable 

project valuation (Ex. E); on December 5 (before Levandowskiís first download), Levandowski was 

told the bonus payments would be made on December 31 (Ex. F, T, W); Levandowski received his 

first bonus payment on December 31 (before his second download) (Ex. G, U); Levandowski received 

his post-termination bonus payout on time (Ex. G, V); Levandowski did not complain to Google about 

the amount or timing of his first bonus payment; there is no evidence he deleted the downloaded files 

after receiving his bonus; and he still has the misappropriated materials. (Dkt. 802) (holding 

documents withheld by Levandowski are incriminating).3Introducing this evidence and testimony 

from multiple witnesses (some of whom may not otherwise testify) will cause undue delay and waste 

time. Allowing Uber to advance the bonus theory presents a danger of confusing the issues and 

misleading the jury. If Uber presents evidence or argument focusing on the CBP, the jury may get 

confused or misled into thinking that if Levandowski had ìlegitimateî reasons to download that would 

somehow excuse Defendantsí unlawful conduct. Thus, there are multiple Rule 403 grounds in favor 

of excluding the bonus theory. 

For these reasons, the Court should grant preclude Uber from arguing the ìbonusî theory, 

which is the only theory Uber disclosed as to why Levandowski downloaded Waymoís trade secrets. 

 

3

 As noted above, presenting these latter arguments may be considered ìopening the doorî to 

testimony or argument about the March 29 meeting.
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01980-00104/9473878.9

-5-

WAYMOíS RENEWED MOTION IN LIMINE NO. 1

DATED: September 7, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC