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DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE

REFERENCE TO DOWNLOADING OF 14,000 FILES Case No. 3:17-cv-00939-WHA

Neel Chatterjee (SBN 173985)

nchatterjee@goodwinlaw.com

James Lin (SBN 310440) 

jlin@goodwinlaw.com 

GOODWIN PROCTER LLP

135 Commonwealth Drive 

Menlo Park, California 94025 

Tel.: +1 650 752 3100 

Fax.: +1 650 853 1038 

Brett Schuman (SBN 189247) 

bschuman@goodwinlaw.com 

Shane Brun (SBN 179079) 

sbrun@goodwinlaw.com 

Rachel M. Walsh (SBN 250568)

rwalsh@goodwinlaw.com 

Hayes P. Hyde (SBN 308031) 

hhyde@goodwinlaw.com

GOODWIN PROCTER LLP

Three Embarcadero Center

San Francisco, California 94111 

Tel.: +1 415 733 6000 

Fax.: +1 415 677 9041 

Hong-An Vu (SBN 266268) 

hvu@goodwinlaw.com 

GOODWIN PROCTER LLP

601 S. Figueroa Street, 41st Floor 

Los Angeles, California 90017 

Tel.: +1 213 426 2500 

Fax.: +1 213 623 1673

Attorneys for Defendant: Otto Trucking LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

v.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

Case No. 3:17-cv-00939-WHA

DEFENDANTS’ MOTION IN LIMINE NO. 

26 TO EXCLUDE REFERENCE TO 

DOWNLOADING OF 14,000 FILES 

Courtroom: 8, 19th Floor 

Judge: The Honorable William Alsup

Hearing Date: September 20, 2017

Hearing Time: 8:00 a.m.

Trial: October 10, 2017 

Filed/Lodged Concurrently with: 

1. Declaration

2. Proposed Order

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4PVHIUUPCF4FBMFE>

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DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE

REFERENCE TO DOWNLOADING OF 14,000 FILES Case No. 3:17-cv-00939-WHA

From the beginning, Waymo has made its misappropriation of trade secrets claim about Mr. 

Levandowski’s alleged improper downloading of 14,000 files from Waymo’s SVN server. See 

Compl. at ¶¶4, 44. It has called them the “crown jewels of the kind of technology that we are talking 

about [autonomous driving].” 8/16/17 Hr’g at 71:1-12. This was a lie and part of Google’s attempt to 

eliminate a competitor in the self-driving automobile space. 

Sasha Zbrozek, the engineer responsible for setting up the repository for the 14,000 files and 

a prolific user of the SVN repository himself, told Waymo’s counsel that the SVN files are “lowvalue.” Vu Decl. Ex. 1. This comment led Waymo’s counsel to acknowledge that they 

 the exact opposite of what Waymo’s counsel told this Court. Id. at Ex. 2 at 84497 

(emphasis added). Moreover, Mr. Zbrozek informed counsel that Mr. Levandowski’s access of the 

SVN server and downloading the full repository of documents “[d]oesn’t ring the alarm bells for 

me.” Vu Decl., Ex. 2. Indeed, Mr. Zbrozek could not have been any clearer:

 Vu Decl., Ex. 4 at 86936.

Waymo ignored the statements by Mr. Zbrozek and filed this lawsuit. It went so far as to 

successfully move for a preliminary injunction based on the alleged downloading of the 14,000 files.

At the same time, Waymo hid Mr. Zbrozek’s identity—submitting declarations by witnesses with no 

personal knowledge of the SVN server; failing to disclose Mr. Zbrozek in the initial disclosures (or 

any other discovery), failing to search his documents; and asserting privilege over communications 

with Mr. Zbrozek. Otto Trucking only received in unredacted form the communications between 

Waymo’s counsel and Mr. Zbrozek on September 2, 2017—after discovery closed and multiple 

proceedings to compel Waymo’s production of documents relating to its investigation due to its 

selective waiver of privilege.

This case has been based on a lie. The 14,000 files are not trade secrets. Their downloading 

was not evidence of misconduct. Waymo has tried to hide a key witness and documents that 

contradict its narrative. The Court should preclude Waymo from referencing Mr. Levandowski’s 

downloading of 14,000 files. In the alternative, the Court should prohibit Waymo from introducing 

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DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE

REFERENCE TO DOWNLOADING OF 14,000 FILES Case No. 3:17-cv-00939-WHA

evidence or argument that the downloading activity was anomalous. 

I. THE 14,000 FILES CONTAIN “LOW-VALUE” INFORMATION AND THE 

DOWNLOAD WAS NOT UNUSUAL

Anthony Levandowski left Google on January 27, 2016. Google initiated an investigation on 

February 3, 2016, but did not implement preservation protocols, including turning off the SVN 

server’s automatic destruction policy. See Vu Decl. Ex. 5; Ex. 6; see also Ex.10. This resulted in 

the loss of SVN data from before September 19, 2015 for Anthony Levandowski and other 

employees from before May 2016. See Ex. 10. Google’s investigators analyzed images of Mr. 

Levandowski’s laptops, but did not find that its trade secrets had been compromised. See id. Ex. 14. 

After outside litigation counsel from Keker & Van Nest (“KVN”) joined the investigation, 

Waymo analyzed activity log data, including log data associated with the SVN server. When Tom 

Gorman, an attorney at KVN, discovered that Mr. Levandowski accessed the SVN server on 

December 15 and downloaded the repository of documents, he began to seek corroboration of his 

conclusion that misconduct had occurred. In response to Mr. Gorman’s questions about files at issue

and whether Mr. Levandowski’s alleged downloading of the entire repository was suspicious, Mr. 

Zbrozek, the former SVN administrator who set up the SVN server, responded: 

x “It’s all electronics designs – schematics and PCB layouts, and the component library for

their creation. It was considered low-value enough that we even considered hosting it off of

Google infrastructure.” Id.

x “It’s not particularly surprising that he might check things out once . . . .Doesn’t ring alarm

bells for me.” Id.

x “The hardware (at all levels) was a second class citizen.” Id.

When asked by litigation counsel to verify the information downloaded from the SVN one

day before Waymo filed its complaint, Mr. Zbrozek conveyed to counsel his concerns with their 

conclusions of misconduct, 

 Vu Decl. Ex. 4. Despite Mr. Zbrozek’s expressed 

concerns, Waymo filed its complaint the next day and told the Court a different story. 

II. WAYMO HID MR. ZBROZEK AND KEY DOCUMENTS FROM DISCOVERY

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DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE

REFERENCE TO DOWNLOADING OF 14,000 FILES Case No. 3:17-cv-00939-WHA

On March 11, 2017, Waymo filed a motion for preliminary injunction and did not submit a 

declaration from Mr. Zbrozek. Instead, Gary Brown and Michael Janosko submitted declarations, 

but later admitted that they had never accessed the SVN server and lacked personal knowledge. Vu 

Decl. Ex. 8; Ex 9 

.

Waymo also excluded Mr. Zbrozek from its three initial disclosures, first served on April 3, 

2017 and amended twice by June 22, 2017, and did not collect his email or documents. Id. at Exs. 

11, 12, 13. In response to Otto Trucking’ 30(b)(6) Topics regarding the SVN server and 

preservation of logs generated by the server, instead of designating Mr. Zbrozek, Waymo designated 

Gary Brown, who was not adequately prepared on SVN server issues. Judge Corley found that Mr. 

Brown was unprepared and required that he be deposed again on the failure to preserve the SVN 

logs. See 08/28/17 Hr’g Tr. 46:12-20. This situation could have been avoided had Mr. Zbrozek 

been designated instead of hidden. 

Waymo also used the attorney-client privilege as a sword and shield to disclose self-serving 

aspects of its forensic investigation, while hiding damaging communications, like those with Mr. 

Zbrozek, from discovery. See Dkt. 1272. Defendants did not receive unredacted versions of many 

critical documents regarding Waymo’s investigation until September 2, 2017 (i.e. Vu Decl. Exhibits 

1-6), after the discovery cut-off, after key depositions had been taken, and after several rounds of 

motion practice. After Judge Corley found Waymo had waived this privilege on August 18, 2017, 

Otto Trucking has had to request the Court’s assistance in forcing Waymo to comply with the 

Court’s order four additional times, the most recent on September 6, when Waymo improperly 

continued to shield communications that were part of its privilege waiver. Dkt. 1479. 

III. THE COURT SHOULD EXCLUDE MENTION OF THE DOWNLOADING OF THE

14,000 FILES OR THAT THE DOWNLOADING WAS ANOMALOUS

Discovery has shown that the downloading of the 14,000 files is irrelevant to Waymo’s

purported trade secret claim. Waymo has admitted that its claims require the taking of trade secrets, 

not merely confidential or proprietary information. See 4/12/17 Hr’g at 116:6-117:4. The 

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DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE

REFERENCE TO DOWNLOADING OF 14,000 FILES Case No. 3:17-cv-00939-WHA

administrator of the SVN server had repeatedly informed Waymo that he believed the material to be

“low-value.” In addition, Mr. Zbrozek made clear that the act of downloading the 14,000 documents 

itself was not evidence of misconduct, as downloading the entire repository was regular practice. 

Thus, the Court should exclude reference to the downloading of the 14,000 files as irrelevant, and/or 

because its probative value is outweighed by a danger of prejudice and confusing the issues. Fed. R. 

Evid. 401-403; Mattel, Inc. v. MGA Entertainment, Inc., 2011 WL 13128621 at * 3 (C.D. Cal. Jan. 

26, 2011) (excluding alleged misappropriation of non-trade secrets as “Mattel’s improper argument 

that the download of non-trade secret information was somehow wrongful.”) 

Waymo has misrepresented the importance of these 14,000 files all the while hiding a 

knowledgeable witness who had expressed his discomfort regarding Waymo’s contrived narrative. 

Waymo has also improperly asserted privilege over its investigation and stonewalled after the Court 

ordered Waymo to produce its privileged communications about its investigation. This stonewalling 

significantly delayed the discovery of the critical documents including those relating to Mr. 

Zbrozek’s disagreement with Waymo’s claim. The Court should prevent further prejudice and the 

risk of misleading or confusing the jury. Fed. R. Evid. 403; Monterey Bay Military Housing, LLC v. 

Pinnacle Monterey LLC, 2015 WL4593439, at *9 (N.D. Cal. July 30, 2015) (excluding 

characterization that alleged conduct was harmful as misleading and lacking in foundation). 

In the alternative, to the extent that the Court permits reference to the 14,000 files, Waymo 

should be precluded from any suggestion that this downloading was anomalous. Any such argument 

is based on incomplete evidence. Waymo failed to preserve SVN log information for Mr. 

Levandowski or other employees prior to September 19, 2015. Waymo has also refused to produce 

any other log data for the numerous devices used by Mr. Levandowski. With only four months of 

SVN data for Mr. Levandowski and no contemporary logs for other engineers, there is insufficient 

basis to determine whether this behavior was anomalous or worthy of suspicion. See Ex. 7. Further, 

Waymo refused to provide other requested log data for Mr. Levandowski or log data for a sampling 

of other Waymo employees. Dkt. 1317 at 3. This information is also relevant to determine if Mr. 

Levandowski’s behavior is anomalous. Waymo has refused to provide context for the alleged 

downloading; it should be precluded from presenting evidence that such conduct was suspicious. 

Case 3:17-cv-00939-WHA Document 1541 Filed 09/13/17 Page 5 of 9
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5

DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE

REFERENCE TO DOWNLOADING OF 14,000 FILES Case No. 3:17-cv-00939-WHA

Dated: September 7, 2017 By: /s/ Neel Chatterjee

Neel Chatterjee

nchatterjee@goodwinlaw.com

Brett Schuman

bschuman@goodwinlaw.com

Shane Brun 

sbrun@goodwinlaw.com

Rachel M. Walsh

rwalsh@goodwinlaw.com

Hong-An Vu

hvu@goodwinlaw.com

Hayes P. Hyde

hhyde@goodwinlaw.com 

James Lin

jlin@goodwinlaw.com 

GOODWIN PROCTER LLP

Attorneys for Defendant: Otto Trucking LLC

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- 6 - 

PROOF OF SERVICE

I am employed in the County of Los Angeles, State of California. I am over the age of 18 

and not a party to the within action. My business address is: 601 S Figueroa Street, 41st Floor, 

Los Angeles, California 90017. 

On September 7, 2017, I served the following documents by placing a true copy thereof in 

a sealed envelope(s) on the persons below as follows: 

DEFENDANTS’ MOTION IN LIMINE NO. 26 TO EXCLUDE REFERENCE TO 

DOWNLOADING OF 14,000 FILES 

Charles K. Verhoeven 

David A. Perlson 

Melissa Baily 

John Neukom 

Jordan Jaffe 

QUINN EMANUEL URQUHART & 

SULLIVAN, LLP

50 California Street, 22nd Floor 

San Francisco, CA 94111-4788

Counsel for Plaintiff: Waymo LLC

Telephone: 415.875.6600 

Facsimile: 415.875.6700 

QE-Waymo@quinnemanuel.com 

David Cooper

QUINN EMANUEL URQUHART & 

SULLIVAN, LLP

51 Madison Avenue, 22nd Floor, 

New York, New York 10010

Counsel for Plaintiff: Waymo LLC

Telephone: 212.849.7000 

Facsimile: 212.849.7100 

QE-Waymo@quinnemanuel.com 

Leo P. Cunningham

WILSON SONSINI GOODRICH & ROSATI

650 Page Mill Road 

Palo Alto, CA 94304-1050

Counsel for Plaintiff: Waymo LLC

Telephone: 650.493.9300 

Facsimile: 650.493.6811 

lcunningham@wsgr.com

Arturo J. Gonzalez

Daniel Pierre Muino

Eric Akira Tate

Esther Kim Chang 

Matthew Ian Kreeger

Michael A. Jacobs

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, CA 94105

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 415.268.7000 

Facsimile: 415.268.7522 

UberWaymoMoFoAttorneys@mofo.com 

Michelle Ching Youn Yang

MORRISON FOERSTER LLP

2000 Pennsylvania Avenue, NW 

Washington, DC 20006 

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 202.887.1500 

Facsimile: 202.887.0763 

UberWaymoMoFoAttorneys@mofo.com

Rudolph Kim

MORRISON & FOERSTER LLP

755 Page Mill Road 

Palo Alto, CA 94304 

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 650.813.5600 

Facsimile: 650.494.0792 

UberWaymoMoFoAttorneys@mofo.com

Case 3:17-cv-00939-WHA Document 1541 Filed 09/13/17 Page 7 of 9
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- 7 - 

Wendy Joy Ray

MORRISON & FOERSTER LLP

707 Wilshire Blvd., Suite 6000 

Los Angeles, CA 90017 

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 213.892.5200 

Facsimile: 213.892.5454 

UberWaymoMoFoAttorneys@mofo.com

Michael Darron Jay

BOIES SCHILLER & FLEXNER LLP

401 Wilshire Boulevard, Suite 850 

Santa Monica, CA 90401 

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 310.752.2400 

Facsimile: 310.752.2490 

BSF_EXTERNAL_UberWaymoLit@bsfllp.co

m

Meredith Richardson Dearborn

BOIES SCHILLER FLEXNER LLP

435 Tasso Street, Suite 205 

Palo Alto, CA 94301 

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 650.445.6400 

Facsimile: 650.329.8507 

BSF_EXTERNAL_UberWaymoLit@bsfllp.co

m

Hamish Hume

Jessica E Phillips

Karen Leah Dunn 

Kyle N. Smith

Martha Lea Goodman

BOIES SCHILLER FLEXNER LLP

1401 New York Ave., NW 

Washington, DC 20005

Counsel for Defendants: Uber Technologies 

Inc. and Ottomotto LLC

Telephone: 202.237.2727 

Facsimile: 202.237.6131 

BSF_EXTERNAL_UberWaymoLit@bsfllp.co

m

John L. Cooper

FARELLA BRAUN + MARTEL LLP

235 Montgomery Street, 17th Floor 

San Francisco, CA 94104

Appointed by Court as: Special Master

Telephone: 415.954.4410 

Facsimile: 415.954.4480 

jcooper@fbm.com

 (MAIL). I placed the envelope for collection and mailing, following our ordinary 

business practices. I am readily familiar with this firm’s practice for collecting and 

processing correspondence for mailing. On the same day that correspondence is 

placed for collection and mailing, it is deposited in the ordinary course of business 

with the United States Postal Service, in a sealed envelope with postage fully prepaid. 

I am a resident or employed in the county where the mailing occurred. The envelope 

or package was placed in the mail at Los Angeles, California.

 (OVERNIGHT DELIVERY). I deposited in a box or other facility regularly 

maintained by FedEx, an express service carrier, or delivered to a courier or driver 

authorized by said express service carrier to receive documents, a true copy of the 

foregoing document in sealed envelopes or packages designated by the express 

service carrier, addressed as stated above, with fees for overnight delivery paid or 

provided for. 

; (E-MAIL or ELECTRONIC TRANSMISSION). Based on a court order or an

agreement of the parties to accept service by e-mail or electronic transmission, I 

caused the documents to be sent to the persons at the e-mail addresses listed. I did not 

receive, within a reasonable time after the transmission, any electronic message or 

other indication that the transmission was unsuccessful. 

Case 3:17-cv-00939-WHA Document 1541 Filed 09/13/17 Page 8 of 9
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-8-

I declare under penalty of perjury that the foregoing is true and correct.

Executed on September 7, 2017, at Los Angeles, California.

Hong-An Vu /s/Hong-An Vu

(Type or print name) (Signature)

Case 3:17-cv-00939-WHA Document 1541 Filed 09/13/17 Page 9 of 9