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WAYMO’S SUPPLEMENTAL LIST OF POTENTIAL IN LIMINE MOTIONS

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 LLC’S 

SUPPLEMENTAL ORDERED LIST OF 

POTENTIAL IN LIMINE MOTIONS

(DKT. 874)

Case 3:17-cv-00939-WHA Document 914 Filed 07/17/17 Page 1 of 4
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WAYMO’S SUPPLEMENTAL LIST OF POTENTIAL IN LIMINE MOTIONS

Waymo awaits further document production and will take many more depositions over the next 

several weeks on numerous subjects. Waymo also expects complete production of documents and 

information already subject to numerous Court Orders but not yet produced by Defendants. Further, 

Defendants have taken only one Waymo deposition in non-expedited discovery, and are continuing to 

serve discovery on Waymo. Thus, Waymo reserves its rights to make additional motions or alter its list 

of proposed motions in limine, and the substance thereof. Pursuant to the Court’s July 11, 2017 Order 

Setting Briefing Schedule For And Hearing On Early Motions In Limine (Dkt. 874), Waymo hereby 

supplements its proposal for early motions in limine (Dkt. 851). 

11. To preclude Defendants from introducing evidence via hearsay statements 

attributed to Anthony Levandowski. 

The Court should preclude Defendants from introducing the alleged out-of-court statements by 

Levandowski regarding why he downloaded the 14,000 files that Defendants identified in their list of 

trial examination questions to ask Levandowski. (Dkt. 829-4.) In Waymo’s July 10 Court Ordered 

List of Potential In Limine Motions (Dkt. 851), Waymo identified one motion seeking to exclude such 

evidence: MIL No. 1, seeking to preclude Defendants from presenting any theory as to why 

Levandowski downloaded Waymo trade secrets. The Court tentatively denied that MIL “without 

prejudice to renewal via targeted objections raised against specific items of evidence at trial.” (Dkt. 

874.) Defendants’ July 7 list of trial examination questions to ask Levandowski (Dkt. 829-4) lists 

some of the specific hearsay statements from Levandowski that Defendants intend to introduce to try 

to get around the fact that Levandowski is pleading the Fifth. These statements offered by Defendants 

are inadmissible. 

Specifically, Defendants indicate that they intend to present testimony “from witnesses, 

including current and former Project Chauffeur employees, who knew that Mr. Levandowski was 

worried about receiving his bonus as of late 2015.” (Dkt. 829-4, at 2.) Any such testimony offered by 

Defendants, which would be based upon out-of-court statements by Levandowski, is inadmissible 

hearsay. Defendants do not claim that this testimony is subject to any hearsay exception. It is not.

Defendants also state that they intend to present testimony “from witnesses to whom Mr. 

Levandowski explained—after this litigation was filed but before Mr. Levandowski began asserting 

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WAYMO’S SUPPLEMENTAL LIST OF POTENTIAL IN LIMINE MOTIONS

his Fifth Amendment privilege—the reason for his alleged downloading of 14,000 files, including 

testimony from Travis Kalanick.” (Dkt. 829-4, at 2.) Again, any such testimony about alleged out-ofcourt statements by Levandowski is inadmissible hearsay. Defendants argue that this testimony is 

admissible under at least Federal Rule of Evidence 804(b)(3). (Id.) Defendants are wrong. Rule 

804(b)(3) provides that a statement against interest is excluded from the rule against hearsay if the 

witness is unavailable. Fed. R. Evid. 804(b)(3). Defendants assume that Levandowski will continue 

to plead the Fifth. If he does not, then Defendants would need to make a showing that he is 

“unavailable” under Rule 804, which they have not done. Assuming that Levandowski is 

“unavailable,” a statement against interest is a statement that:

(A) a reasonable person in the declarant’s position would have made only if the 

person believed it to be true because, when made, it was so contrary to the 

declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate 

the declarant’s claim against someone else or to expose the declarant to civil or 

criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its 

trustworthiness, if it is offered in a criminal case as one that tends to expose the 

declarant to criminal liability

Id. Levandowski’s purported statement does not meet this criteria because it is unreliable. In re 650 

Fifth Avenue and Related Properties, 2017 WL 2214869, * 12 (S.D.N.Y. May 18, 2017) (slip copy)

(not admitting purported statement against interest because reliability of statement called into 

question); Knight v. Henderson International Technologies, Inc., 2016 WL 8257254, *2 (E.D. La. 

Mar. 24, 2016 (slip copy) (statement was unreliable because it was contradicted by other evidence in 

the record). Specifically, the alleged out-of-court statement on which Defendants want to rely is 

contradicted by another alleged out-of-court statement by Levandowski. Defendants admit that 

“[a]fter the filing of this lawsuit, Levandowski also told Uber and others that he downloaded the files 

in order to work from home, including at an all-hands meeting.” (Dkt. 854, at 10.) Defendants, 

however, say that this explanation for the downloading “was either not a true explanation or not a 

complete explanation.” (Id.) Defendants cannot cherry-pick out-of-court statements on which to base 

their defense especially when the hearsay is inconsistent as to why Levandowski downloaded 14,000 

Waymo files. Thus, any attempts by Defendants to present testimony about out-of-court statements 

by Levandowski regarding why he downloaded the 14,000 files should be excluded. To be clear, 

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WAYMO’S SUPPLEMENTAL LIST OF POTENTIAL IN LIMINE MOTIONS

Waymo’s motion is limited to attempts by Defendants to present testimony about out-of-court 

statements by Levandowski regarding why he downloaded the 14,000 files; Waymo should not be 

precluded from presenting testimony about Levandowski’s out-of-court statements because such 

statements are party admissions. Fed. R. Evid. 801(d)(2).

Defendants may also attempt to introduce other hearsay evidence to explain their theory of 

why Levandowski downloaded the 14,000 files. (See Dkt. 829-4.) Defendants have not identified all 

of the specific evidence on which they intend to rely and so Waymo reserves the right to move in 

limine to exclude additional evidence once Defendants identify it all with specificity. (Dkt. 874) 

(denying motions in limine “without prejudice to renewal via targeted objections raised against 

specific items of evidence at trial”). Waymo further reiterates that the Court should preclude 

Defendants from arguing any theory as to why Levandowski downloaded the 14,000 files. (Dkt. 851, 

at 1-3 (Waymo MIL No. 1).) 

12. To preclude Defendants from introducing any evidence of settlement 

discussions. 

The Court should exclude any evidence regarding any settlement discussions between the 

parties. Such evidence is inadmissible pursuant to Federal Rule of Evidence 408. See Funderburg v. 

U.S., 2005 WL 6019702, *2 (N.D. Cal. Sept. 14, 2005) (precluding any mention of settlement, 

settlement negotiations, and/or offers); IBM Corp. v. Fasco Industries, Inc., 1995 WL 138553, *1 

(N.D. Cal. Mar. 27, 1995) (excluding evidence of settlement discussions).

DATED: July 17, 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 914 Filed 07/17/17 Page 4 of 4