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01980-00104/9637824.1

WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

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’s 

SUPPLEMENTAL BRIEF REGARDING 

MOTION IN LIMINE 4

UNREDACTED VERSION OF 

DOCUMENT TO BE FILED UNDER 

SEAL

Date: TBD

Time: TBD

Ctrm: 8, 19th Floor

Judge: Honorable William H. Alsup

Trial Date: December 4, 2017 
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01980-00104/9637824.1

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WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

Pursuant to the Court’s October 16 Order (Dkt. 2009), Waymo respectfully submits a 

supplemental brief in support of Waymo’s Motion In Limine No 4 (Dkt. 913). 

BACKGROUND

In its Motion In Limine No. 4, Waymo asked that the Court preclude any argument, testimony, 

or evidence about efforts taken in response to the Court’s Preliminary Injunction Order. (Id.) Uber 

responded that it plans to rely on three “facts” to show that the “downloaded materials” did not make

it to Uber: (1) Uber’s forensics expert conducted searches for the “downloaded files;” (2) Uber fired 

Levandowski when he did not return “downloaded materials”

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; and (3) Uber “allowed” Waymo to 

inspect Uber’s facilities and Uber contends (incorrectly) that Waymo “found nothing.” (Dkt. 978.) At 

the July 26 hearing, Waymo argued that Uber should not be permitted to rely on its post-litigation 

purported “good citizenship” in allegedly trying to find the “downloaded materials” because that 

would open the door to Waymo explaining that Uber was ordered to allow Waymo to inspect its 

ongoing LiDAR work and to Waymo presenting evidence of Uber’s discovery misconduct. (Dkt. 

1050 - 7/26/17 Hearing Tr., 61:8-65:10, 69:2-73:2.) The Court permitted Waymo to submit a list of 

two dozen instances of Uber’s discovery misconduct for the Court to consider. (Id., 72:6-14; Dkt. 

1356.) The Court has not ruled on whether Waymo may introduce the misconduct at trial. In the 

meantime, further discovery revealed that, in addition to the bases set forth in Waymo’s Motion (Dkt. 

913) and at the July 26 hearing, evidence of Defendants’ post-litigation efforts to find the 

“downloaded materials” should be precluded because Defendants are improperly using the privilege 

as a sword and a shield, and the probative value of the evidence is outweighed by the danger of unfair 

prejudice, delay, waste of time, misleading the jury, and confusion of the issues. 

ARGUMENT

The Court should reject Defendants’ attempt to cherry-pick and produce only facts they deem 

favorable to their case and on which they want to rely. Courts have broad discretion to preclude 

testimony from parties who have attempted to use attorney-client privilege as “both [] a sword and a 

shield.” See Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 

 

1

 This evidence is addressed in Waymo’s Motion In Limine No. 14.
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WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

1186, 1196 (9th Cir. 2001) (district court precluded advice of counsel defense where defendant 

“refused to answer questions regarding his interactions with counsel at his deposition”). Although 

Uber wants to show it searched for Waymo’s stolen files and none ended up at Uber, through privilege 

objections, Uber denied Waymo the chance to fully test the breadth and adequacy of Uber’s searches.

I. THE COURT SHOULD PRECLUDE EVIDENCE OF UBER’S SEARCHES.

A. Uber Withheld Information About the Searches as Privileged and So Cannot 

Rely Upon Them.

Uber is withholding facts about its searches for the “downloaded materials.” Waymo 

deposed Uber in-house attorney, Angela Padilla, on October 2. Ms. Padilla is identified on Uber’s 

Trial Witness List as testifying regarding “confirmation of the absence of evidence of trade secret

misappropriation through and during compliance with the Court’s provisional remedy order.” 

(Dkt. 1725-4.) Describing Uber’s purported efforts to find Waymo’s stolen files, Ms. Padilla used 

generalizations like moving “heaven and earth”, looking “under every rock”, and leaving “no 

stone unturned.” (Ex. A - Padilla Depo., 45:3-25; 49:6.) But when Waymo asked her specific 

questions about the details of what Uber did, she was routinely instructed not to answer based on 

privilege. For example, she was instructed not to answer questions on the following topics: 









Other Uber witnesses were similarly instructed not to answer questions about these efforts on 

privilege grounds. (Ex. B - Suhr Depo., 347:6-348:8 (

, a 

topic on which he was designated to testify at trial); Ex. C - Yoo Depo., 120:24-121:2 (

).) 
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WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

Uber will likely argue that it is not using privilege as a sword and a shield because it will 

introduce this evidence through its forensic expert. Uber certainly should not be permitted to 

introduce this evidence through Ms. Padilla, Mr. Suhr, or Ms. Yoo, based on their deposition 

testimony. But, Uber also should not be permitted to use an expert as an end-run around the rule

against using privilege as a sword and a shield. Uber should not be allowed to argue to the jury 

that it left “no stone unturned” in searching for Waymo’s stolen documents, when Uber denied 

Waymo the ability to test the veracity of that statement. Put another way, Uber is withholding 

facts as privileged that could undermine Uber’s generic claim that it moved “heaven and earth” to 

try to find the “downloaded materials.” Uber should not be allowed to discuss its purportedly 

“thorough” search efforts when it refused to discuss the details of those efforts. 

B. Uber’s Forensics Searches Are More Prejudicial Than Probative.

The Court should additionally exclude evidence or argument regarding Defendants’ 

searches for the “downloaded materials” because its probative value is “substantially outweighed” 

by danger of unfair prejudice, confusing the issues, and misleading the jury. Fed. R. Evid. 403. 

As noted in Waymo’s prior briefing and as argued at the July 26 hearing, it will be unduly 

prejudicial to Waymo to allow Defendants to argue that they went to great lengths to search for the 

“downloaded materials” if Waymo cannot explain why Defendants did so—i.e., because they were 

ordered to do so—or that Defendants engaged in discovery misconduct throughout the case. (Dkt. 

913; Dkt. 1050 - 7/26/17 Hearing Tr., 61:8-65:10, 69:2-73:2.) There is also a significant danger of 

confusing the issues and misleading the jury because of the many deficiencies in Uber’s expert’s 

searches, and Waymo’s inability to take discovery on the full scope of Uber’s efforts due to 

privilege objections. 

 

Moreover, he was not able to fully search the most likely location of the stolen files—

Levandowski’s own computers—having only searched a partial back-up of one of his personal 

laptops and obtained search results that Levandowski’s counsel ran on Levandowski’s personal 
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WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

laptops. (Id., 74:10-16, 76:23-77:6.) Those laptops were not made available to Waymo, even 

though they were indirectly available to Uber’s expert via Levandowski’s counsel’s searches. 

Although Waymo has ample cross-examination fodder for Uber’s expert, there is a significant 

danger of confusing the issues and misleading the jury given Uber’s withholding of information 

about its searches. Evidence of only a partially disclosed forensic search should be precluded.

II. THE COURT SHOULD PRECLUDE RELIANCE ON WAYMO’S INSPECTIONS.

Defendants similarly should be precluded from introducing evidence or argument that 

Waymo conducted inspections at Uber and, according to Defendants, did not find evidence of 

misappropriation. Defendants do not have admissible evidence from a witness with personal 

knowledge who can testify about Waymo's inspections, Defendants are again improperly using 

privilege as a sword and shield, and this information should be precluded under Rule 403. 

A. Defendants Do Not Have Witnesses to Testify About the Inspections.

As Waymo explained in its Motion, the only persons with personal knowledge about the 

inspections are trial counsel from MoFo or Quinn Emanuel, and they are not on either side’s trial 

witness lists.2 (Dkt. 1725-2, 1725-4, 1725-5.) In response, Uber argued that “Angela Padilla and 

other Uber witnesses who were present at the inspections” would testify on this issue. (Dkt. 978, 

5.) Defendants cannot rely on Ms. Padilla’s testimony on this topic. She was not present at the 

inspections. (Ex. A - Padilla Depo., 71:7-9) (“

”) All of the information she knows about the 

inspections is second-hand or privileged. (Id., 72:6-11) (“

”) She 

confirmed that “

” would be privileged. (Id., 73:13-17.) Because the 

witness Uber identified as having knowledge of the inspections does not have first-hand or non-

 

2

 Mr. Gonzalez is on Waymo's Trial Witness List, but was not present for Waymo's 

inspections.
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WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

privileged information, Uber cannot present this evidence or argument at trial. 

Other witnesses on which Uber might have relied to testify about the inspections also 

cannot do so. Uber’s Adam Kenvarg was the only non-lawyer involved in Waymo’s inspections. 

But, he is not on Uber's Trial Witness List. (Dkt. 1725-4.) Ms. Yoo testified that she did not have 

any non-privileged information regarding the inspections. (Ex. C - Yoo Depo., 120:24-121:6.) 

Waymo's counsel asked Mr. Suhr if he had information about the purported absence of evidence 

through and during compliance with the Preliminary Injunction Order, and he responded that he 

had been instructed not to answer. (Ex. B - Suhr Depo., 347:25-348:6.) No other witnesses on 

Defendants’ Trial Witness Lists attended Waymo’s inspections, or know what Waymo’s counsel 

looked at and what Waymo’s counsel identified as evidence of misappropriation.

B. Evidence of Waymo’s Inspections Should be Precluded Under Rule 403.

Even if Uber tries to introduce this evidence through other means, such as discovery 

responses3, evidence or argument about the inspections should be precluded pursuant to Rule 403. 

Fed. R. Evid. 403. The danger of delay and wasting time, misleading the jury and confusing the 

issues, greatly outweighs the probative value of the evidence. If Defendants introduce evidence of 

the inspections, that will open the door to Waymo explaining that the Court ordered Defendants to 

allow them and why. Waymo will also have to explain how discovery proceeds and that Waymo 

was not obligated to identify to Uber during the inspections which information is evidence of 

misappropriation. Waymo disclosed the evidence it will rely on; the form of discovery that 

uncovered it is not probative of any issue. All that is relevant is whether Waymo has evidence of 

misappropriation, not how or when Waymo discovered it. Explaining this to the jury will delay 

and waste time. There is also danger that the jury will be misled and be confused into thinking 

that Waymo must prove its evidence was discovered in the inspections. Thus, Defendants should 

be precluded from introducing evidence or argument about Waymo’s inspections.

For the foregoing reasons and those set forth in Waymo’s Motion and at the July 26 

hearing, this Court should grant Waymo’s Motion in Limine No. 4.

 

3

 Uber propounded RFAs regarding whether evidence was discovered at the inspections.
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WAYMO’S SUPPLEMENTAL BRIEF REGARDING MOTION IN LIMINE NO. 4

DATED: October 23, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/ Jordan Jaffe

Jordan Jaffe

Attorneys for WAYMO LLC