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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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, CA 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 

DEFENDANT OTTO TRUCKING’S 

OPPOSITION TO PLAINTIFF WAYMO 

LLC’S MOTION FOR ORDER TO SHOW 

CAUSE (DKT. NO. 847) 

Date: August 16, 2017 

Time: 8:00 a.m. 

Courtroom: 8, 19th Floor 

Judge: Honorable William Alsup 

Trial Date: October 10, 2017 

REDACTED VERSION OF DOCUMENT 

SOUGHT TO BE FILED UNDER SEAL

Case 3:17-cv-00939-WHA Document 996 Filed 07/24/17 Page 1 of 10
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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

I. PRELIMINARY STATEMENT 

“Waymo’s complaint that Mr. Levandowski knows where the material he 

downloaded from Waymo is located, and therefore Otto Trucking must know, is 

disingenuous.” 

Magistrate Judge Corley, Dkt. No. 881 at 3 (denying motion to compel brought by Waymo). 

Plaintiff Waymo LLC’s (“Waymo”) motion for an order to show cause should be denied. 

Waymo’s current motion, which is merely repackaging its prior pending motion for an order to show 

cause, is ultimately seeking remedies against Anthony Levandowski. But Waymo chose not to sue 

Mr. Levandowski. And the remedy that Waymo seeks here is to force Otto Trucking to do 

something Waymo never asked for, that the Court did not clearly order, and that Otto Trucking 

cannot lawfully do. In fact, Waymo’s request (if Otto Trucking could comply) would require Otto 

Trucking to pay Anthony Levandowski for choosing to assert his Fifth Amendment rights. 

Otto Trucking has fully complied with the Court’s Preliminary Injunction Order (the “PI 

Order”). It provided substantial information from the other officers of Otto Trucking—Lior Ron, 

Adam Bentley, and Rhian Morgan—and has provided information about Otto Trucking (and its 

subsidiary) to respond to Waymo’s endless questions. In addition, as these officers are also 

employees of Uber, Otto Trucking has referred Waymo to the accounting and detailed logs provided 

by Uber. In arguing that these responses were insufficient, Waymo does not identify any 

information it believes Otto Trucking has beyond what was provided by Uber. 

The heart of Waymo’s motion is that it complains yet again about Mr. Levandowski’s 

assertion of his Fifth Amendment rights. Judge Corley recognized that imputation of knowledge 

through these repeated requests for a waiver of Fifth Amendment rights as “disingenuous.” Mr. 

Levandowski is not an employee of Otto Trucking; it cannot fire him like Uber did to try to coerce 

his cooperation. The only possible mechanism that Waymo identifies is a provision which would 

require Otto Trucking . At no point in 

the preliminary injunction proceedings was this ever mentioned by Waymo. It also was not 

mentioned in the Court’s Order. This belated, after the fact request should be denied. 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

II. THE COURT ORDERS DEFENDANTS TO UNDERTAKE AN ACCOUNTING 

This case was filed in January 2017. The complaint errantly coupled Otto Trucking as being 

part of Uber. This fact was untrue. 

By lumping together all defendants (including Otto Trucking), Waymo sought injunctive 

relief. Waymo never made any specific requests related to Otto Trucking. It never sought to order 

the repurchase of shares or an accounting from Otto Trucking as to any alleged downloaded 

documents. On May 11, 2017, the Court issued an order granting in part and denying in part 

Waymo’s request for provisional relief (Dkt. No. 433) (the “PI Order”). Specifically, Paragraph 4 of 

the PI Order required Defendants to: 

• Provide a detailed accounting of every individual “who has seen or heard any part of 

any downloaded materials” (Dkt. No. 433 at 24); 

• Interview individuals “with a particular focus on anyone who has communicated with 

[Mr.] Levandowski on the subject of LiDAR,” including Mr. Levandowski’s 

“separate counsel” (Id.); 

• Identify chains of custody for copies of downloaded materials or due diligence reports 

for individuals who have seen or heard copies of those materials or reports (Id.); and 

• Use the full extent of their authority to obtain cooperation from necessary parties. 

(Id.). 

Paragraph 5 of the PI Order required Defendants to: 

• Provide a chronological log of communications that occurred between Mr. 

Levandowski and any individuals associated with Defendants wherein LiDAR was 

mentioned. (Id. at 25). 

In response, Otto Trucking attempted to obtain information from Anthony Levandowski, 

interviewed its other officers for information required by the PI Order, and provided an accounting 

that confirmed that Otto Trucking’s officers other than Mr. Levandowski did not receive or see any 

of Waymo’s purported trade secrets. Otto Trucking also incorporated the accounting and 

chronologies provided by Uber. See Dkt. No. 717. 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

Even though it never asked for any of the relief the Court ordered, Waymo now seeks to hold 

Otto Trucking in contempt for allegedly failing to (1) provide a detailed accounting of every 

individual “who has seen or heard any part of any downloaded materials”; and (2) provide a 

chronology of Mr. Levandowski’s LiDAR-related communications. In each case, as Otto Trucking 

has provided the information in its possession, custody, and control, Waymo’s motion is based on 

Otto Trucking’s inability to provide the information in the possession of Mr. Levandowski because 

of his assertion of his Fifth Amendment rights. The motion should be denied. 

III. LEGAL STANDARD 

“A district court has the power to adjudge in civil contempt any person who willfully 

disobeys a specific and definite order of the court.” Gifford v. Heckler, 741 F.2d 263, 265 (9th Cir. 

1984). However, the Supreme Court has cautioned that contempt “is a severe remedy, and should 

not be resorted to where there is a fair ground of doubt as to the wrongfulness of defendant’s 

conduct.” Tivo v. Echostar, 646 F.3d 869, 881–82 (Fed. Cir. 2011) (en banc) (citing Cal. Artificial 

Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885)). A prima facie case of civil contempt 

requires: (1) the nonmoving party violated a specific and definite court order; (2) beyond substantial 

compliance; (3) not based upon a reasonable and good faith interpretation of the order; and (4) the 

foregoing has been shown by clear and convincing evidence.” In re Dual-Deck Video Cassette 

Recorded Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993); see also Vertex Distrib., Inc. v. Falcon 

Foam Plastics, Inc., 689 F.2d 885, 891 (9th Cir. 1982). “Substantial compliance with the court order 

is a defense to civil contempt, and is not vitiated by a few technical violations where every 

reasonable effort has been made to comply.” In re Dual-Deck Video Cassette Recorder Antitrust 

Litig., 10 F.3d at 695 (quotation marks omitted). Waymo has not shown how Otto Trucking has 

violated the Court’s order and cannot meet the standard for contempt. 

A. Otto Trucking’s Accounting Complies with Paragraph 4 of the Court’s Order. 

Otto Trucking took the actions required by the PI Order and provided the information 

requested by the Court. To comply with the Court’s PI Order, Otto Trucking sent letters to the 

officers of Otto Trucking—Anthony Levandowski, Lior Ron, Adam Bentley, and Rhian Morgan 

notifying them about the PI Order and informing them that they must cooperate with Otto 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

Trucking’s investigation into the identities of anyone who has seen the downloaded materials, what 

they saw, and under what circumstances they saw the allegedly downloaded materials. See Dkt. No. 

717-1. Mr. Levandowski asserted his Fifth Amendment rights, but Mr. Ron, Ms. Morgan, and Mr. 

Bentley cooperated with this request and confirmed that none of them had “seen or heard any part of 

the downloaded materials.” Dkt. No. 717. Otto Trucking set forth in its detailed accounting the 

information provided from Mr. Ron, Ms. Morgan, and Mr. Bentley and the information it could 

gather regarding Mr. Levandowski. Because Mr. Ron, Ms. Morgan, and Mr. Bentley had not seen or 

heard any part of the downloaded materials, no further chain of custody information was necessary.1 

Otto Trucking further disclosed that Mr. Levandowski, Mr. Ron, and Mr. Bentley received 

the Stroz Report, but not any of the referenced exhibits. To the extent that Waymo contends that 

seeing the Stroz Report is tantamount to seeing the downloaded materials (which it is not), Otto 

Trucking included their receipt of the Stroz Report in its accounting. Additionally, Otto Trucking 

incorporated by reference Uber’s accounting and 26-page chronology of LiDAR-related 

communications with Mr. Levandowski to supplement Otto Trucking’s accounting of its officers, 

since Otto Trucking’s officers are also Uber employees and were covered by Uber’s submissions. 

Otto Trucking has no independent knowledge of LiDAR-related communications beyond Uber’s 

disclosure. 

These disclosures satisfy the Court’s Order. Otto Trucking has provided the information in 

its possession, custody, and control and identified Uber’s logs as a source for additional information. 

That Waymo does not like this response does not make Otto Trucking’s accounting inaccurate or 

incomplete. 

The sole basis for Waymo’s motion (as well as its earlier motion seeking the same relief) is 

that Otto Trucking has not obtained information in the possession of Mr. Levandowski. This motion 

fails for several reasons. 

 

1

 This is not unusual considering Otto Trucking is a limited liability company that merely owns a 

subsidiary that owns trucks. Otto Trucking and its subsidiary, Otto Transport, are not involved in 

the development of LiDAR or any self-driving technology. 

. The accused devices, Fuji and 

Spider, have not been used on any of Otto Transport’s trucks. 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

First, Waymo is trying to get to Mr. Levandowski through the back door arguing that because 

Mr. Levandowski knows facts, Otto Trucking must know those same facts is just wrong. As Judge 

Corley noted in her July 12, 2017 order, “Waymo’s complaint that Mr. Levandowski knows where 

the material he downloaded from Waymo is located, and therefore Otto Trucking must know, is 

disingenuous. As Waymo is well aware, Mr. Levandowski has refused to cooperate with any 

discovery in this matter on Fifth Amendment grounds.” (Dkt. No. 881 at 3). 

Second, there can be no dispute that Mr. Levandowski has the right to assert the Fifth 

Amendment privilege. Quinn v. United States, 349 U.S. 155, 161 (1955) (“The privilege against 

self-incrimination is a right that was hardearned by our forefathers. The reasons for its inclusion in 

the Constitution—and the necessities for its preservation—are to be found in the lessons of 

history.”). The Fifth Amendment prohibits state compelled action that might require Mr. 

Levandowski to testify or produce documents that incriminate himself as “any compulsory discovery 

by extorting the party’s oath . . . to convict him of crime . . . is contrary to the principles of a free 

government . . . . It may suit the purposes of despotic power, but it cannot abide the pure atmosphere 

of political liberty and personal freedom.” Malloy v. Hogan, 378 U.S. 1, 9 n.7 (1964); see also 

United States v. Bright, 596 F.3d 683, 692 (9th Cir. 2010) (“The Fifth Amendment grants persons 

the privilege not to provide the State with [self-incriminatory] evidence of a testimonial or 

communicative nature.” (quotation marks omitted and alteration in original)). Indeed, forcing the 

issue through Otto Trucking would violate Mr. Levandowski’s Fifth Amendment rights by making 

him choose between a punitive state action and invoking his constitutional right against selfincrimination. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (noting that 

“government cannot penalize assertion of the constitutional privilege against compelled selfincrimination by imposing sanctions to compel testimony which has not been immunized”); Malloy, 

378 U.S. at 8 (stating that the Fifth Amendment guarantees “the right of a person to remain silent 

unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for 

such silence”). 

Third, contrary to Waymo’s assertion, Otto Trucking has exercised the full extent of its 

authority in attempting to obtain cooperation from Mr. Levandowski. As discussed in Otto 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

Trucking’s objection to Judge Corley’s Order on Waymo’s Motion to Compel (Dkt. No. 928), Otto 

Trucking does not have the power to compel any action from Mr. Levandowski as he is a managing 

member with sole discretion (shared with Mr. Lior) to make decisions for the company and does not 

owe any fiduciary duties. Id. at 4. In addition, his consent is required before the company can take 

any action. See id. 

And yet, Otto Trucking still tried to obtain information in connection with the PI Order. Otto 

Trucking contacted Mr. Levandowski by letter to his counsel at Ramsey & Ehrlich LLP on May 30, 

2017, requesting that Mr. Levandowski cooperate with the investigation, but received no response. 

See Dkt. No. 717, Ex. B. When Waymo still complained about the extent of Otto Trucking’s efforts 

to obtain Mr. Levandowski’s cooperation, Otto Trucking offered to have fellow managing member, 

Lior Ron, contact Mr. Levandowski and request his assistance. See Dkt. No. 847-1, Ex. 5 (email 

from Mr. Brun regarding Otto Trucking’s compliance with the PI Order and offering to have Mr. 

Lior contact Mr. Levandowski). Waymo ignored this offer. 

Waymo then complained that Otto Trucking failed to contact Mr. Levandowski’s “personal 

attorneys” and O’Melveny & Myers LLP (“O’Melveny”) to request their cooperation with the 

accounting. This is false. 

Otto Trucking contacted Mr. Levandowski’s personal attorneys, John Gardner and the 

Ramsey and Ehrlich firm. The Ramsey and Ehrlich firm was only retained after this litigation 

started. Any information relating to Mr. Gardner is accounted for in Uber’s accounting, including 

that he received a copy of the Stroz Report from Stroz Friedberg without exhibits. Dkt. No. 715 at 7. 

Mr. Gardner would not provide any further information on the grounds of attorney-client privilege, 

as he is legally bound to keep his confidences under the attorney-client privilege. See Cal. Bus. & 

Prof. Code § 6068(e) (stating it is the duty of every lawyer to “maintain inviolate the confidence, and 

at every peril to himself or herself to preserve the secrets, of his or her client”). 

Otto Trucking also contacted its corporate counsel at O’Melveny. O’Melveny refused to 

cooperate without Google’s consent, due to O’Melveny’s attorney-client relationship with Google in 

other matters. See Dkt. No. 715-1. Defendants contacted Waymo’s counsel in this case regarding 

O’Melveny’s refusal to cooperate and sought an agreement to allow O’Melveny to provide 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

responsive information despite this alleged conflict. Waymo’s counsel claimed that Defendants’ 

attempt to seek O’Melveny’s cooperation through Google’s counsel was not “appropriate” and 

refused to assist in facilitating O’Melveny’s cooperation. Id. Otto Trucking cannot be held in 

contempt for Waymo’s own stonewalling. 

Finally, Waymo again argues that Otto Trucking should be held in contempt because it failed 

to . As explained in Otto Trucking’s opposition to Waymo’s 

first motion for an order to show cause (Dkt. No. 804), Waymo’s argument has no merit.2 Waymo 

never requested this relief in its injunction briefing, and the Court never explored Otto Trucking’s 

role (if any) in this case as part of the injunction proceedings. The Court’s PI Order does not 

specifically and definitely , and as such, Otto Trucking cannot be held in 

contempt. See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 465 (9th Cir. 1989) (“Civil contempt 

is appropriate only when a party fails to comply with a court order that is both specific and definite. 

Thus, to support a contempt motion, the order alleged to have been disobeyed must be sufficiently 

specific.”) (internal citations omitted) (emphasis added). Moreover, 

 is not “a reasonable step within [Otto Trucking’s] power to comply.” Reno 

Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Rather, 

 

B. Otto Trucking’s Adoption of Uber’s Logs Provides Waymo with the Information 

in OT’s Possession, Custody and Control and Complies with Paragraph Five of 

the Order. 

Otto Trucking is also not in contempt for referring to Uber’s chronology detailing 

communications involving Mr. Levandowski and LiDAR instead of providing a chronology of its 

own. Uber provided Waymo with a full chronology of communications including over 500 LiDARrelated communications with Mr. Levandowski. See Dkt. No. 712. Otto Trucking adopted this 

 

2

 Waymo first argued that Otto Trucking should be held in contempt for failing to repurchase Mr. 

Levandowski’s shares in its motion for an order to show cause dated June 21, 2017 (Dkt. No. 677). 

Otto Trucking opposed this motion (Dkt. No. 804), and because these arguments are again relevant, 

Otto Trucking incorporates Section III.A of its opposition as if it were fully set forth herein. 

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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

chronology as its own, as it had no facts beyond those disclosed by Uber. Dkt. No. 717. Uber’s log 

sufficiently sets forth Mr. Ron’s, Ms. Morgan’s, and Mr. Bentley’s LiDAR-related communications 

with Mr. Levandowski as they are also employees of Uber who were interviewed in connection with 

the Court’s Order. Indeed, Uber’s chronology includes dozens of entries for Mr. Ron and Ms. 

Morgan. Waymo has not shown why Mr. Ron or the other officers would provide different 

information to Otto Trucking than they did to Uber or any information it believes is missing other 

than what may be in Mr. Levandowski’s sole possession. 

IV. CONCLUSION 

For the foregoing reasons, the Court should deny Waymo’s motion for an order to show 

cause. 

Dated: July 24, 2017 Respectfully submitted,

 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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OTTO TRUCKING’S OPPOSITION TO WAYMO’S MOTION FOR OSC (DKT 847) 

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

CERTIFICATE OF SERVICE 

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the 

United States District Court for the Northern District of California by using the CM/ECF system on 

July 24, 2017. I further certify that all participants in the case are registered CM/ECF users and 

that service will be accomplished by the CM/ECF system. 

I certify under penalty of perjury that the foregoing is true and correct. Executed this 24th

day of July 2017 in Menlo Park, California. 

 /s/ Neel Chatterjee 

 Neel Chatterjee 

Case 3:17-cv-00939-WHA Document 996 Filed 07/24/17 Page 10 of 10