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01980-00104/9558758.2 

WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

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 REPLY IN 

SUPPORT OF MOTION FOR 

CONTINUANCE OF TRIAL DATE

Case 3:17-cv-00939-WHA Document 1691 Filed 09/19/17 Page 1 of 17
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01980-00104/9558758.2 

-iWAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

TABLE OF CONTENTS

Page

I. DEFENDANTS DO NOT DISPUTE THE AMOUNT OF DISCOVERY AND 

OTHER TASKS THAT ARE NECESSARY IN LIGHT OF THE FEDERAL 

CIRCUIT’S ORDER..............................................................................................................2

II. DEFENDANTS DO NOT DISPUTE THAT WAYMO IS ENTITLED TO 

PROTECT ITS TRADE SECRETS BEYOND THE NINE TRADE SECRETS 

WAYMO IS LIMITED TO LITIGATING AT TRIAL AS A MATTER OF LAW.............6

III. DEFENDANTS MISREPRESENT THE FINDINGS OF THE STROZ REPORT 

IN ORDER TO DEFLECT FROM THE STRAIGHTFORWARD AND 

UNDISPUTED ISSUES CONCERNING THE NECESSITY FOR A 

CONTINUANCE...................................................................................................................8

IV. DEFENDANTS’ SUBSTANTIVE CHALLENGES TO WAYMO’S CLAIMS 

ARE IRRELEVANT IN DECIDING WHETHER A CONTINUANCE IS 

WARRANTED ....................................................................................................................11

V. THE COURT SHOULD NOT APPOINT AN EXPERT PURSUANT TO 

FEDERAL RULE OF EVIDENCE 706 ..............................................................................14

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

Defendants’ opposition fails to address, let alone dispute, Waymo’s primary point from its 

Motion for Continuance (“Motion”): a continuance is necessary because the multitude of additional 

tasks that are required in view of the newly disclosed Stroz Report and related documents. Those 

tasks, of which Waymo only became aware on September 13, cannot be completed in parallel with 

the outstanding expedited pre-trial work necessary before the October 10 trial date – at least not 

without severe prejudice to Waymo’s ability to obtain discovery and marshal that evidence into its 

claims, expert reports and preparation for trial. Waymo identified the tasks that must be done weeks 

after fact discovery closed, including reviewing hundreds of thousands of documents only recently 

made available or produced, conducting over a dozen depositions, performing expert analysis of the 

new documents, and briefing various issues (including spoliation and Defendants’ continued 

stonewalling in producing relevant documents). In their Opposition, Defendants do not respond. 

Waymo explained why no schedule could squeeze in all of those tasks before trial, and the extreme 

prejudice and difficulty in doing this before October 10, much less while Waymo is doing work 

preparing for and briefing MSJs, MILs, Daubert briefing and expert discovery, exchange of exhibit 

lists, witness lists, jury instructions, PTC statement, and trial preparation. Again, Defendants provide 

no response. Because it is undisputed on this record that the necessary tasks for a full airing of the 

facts cannot occur in the three weeks before the current trial date, this Court should grant Waymo’s 

Motion.

Rather than addressing the issue of timing that is the basis for the Motion, Defendants resort to 

a mischaracterization of Waymo’s motives and believes in the case, and to litigating the merits of 

Waymo’s trade secret, damages and other claims their opposition. While irrelevant to Waymo’s 

Motion, Defendants’ merits arguments conveniently ignore the numerous facts that undermine their 

case and that demonstrate the importance of the Stroz materials: 

Case 3:17-cv-00939-WHA Document 1691 Filed 09/19/17 Page 3 of 17
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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

Even the limited information obtained since the Federal Circuit 

ruling 

Regardless, none of Defendants’ merits arguments refute—or even attempt to refute—that 

Waymo is entitled to discovery to test Defendants’ theories, and that such discovery will require 

review of hundreds of thousands of documents and numerous other tasks that simply cannot be 

performed before October 10. Indeed, the need for discovery here is especially clear given the 

conclusions in the Stroz Report—undisputed by Defendants—that 

Furthermore, a continuance is necessary because this Court should not—and as a matter of law

cannot—force Waymo to waive trade secret claims other than the nine designated for trial. 

Defendants do not even address Waymo’s arguments that such a forced waiver has no legal basis in 

the Federal Rules of Civil Procedure and would violate Waymo’s due process and Seventh 

Amendment rights. Nor do Defendants attempt to explain why it would be fair or reasonable to force 

such a waiver given the new disclosures in the due diligence report and related materials. 

Waymo should not be penalized for Defendants’ persistent and ultimately failed attempt to shield the 

Stroz materials from discovery.

I. DEFENDANTS DO NOT DISPUTE THE AMOUNT OF DISCOVERY AND 

OTHER TASKS THAT ARE NECESSARY IN LIGHT OF THE FEDERAL 

CIRCUIT’S ORDER

Defendants offer no response to Waymo’s explanation (Dkt. 1603-4 at 4-15) that a 

continuance is necessary given the volume of material Defendants and third parties withheld, and 

Waymo’s need to review, address, and take discovery into this critical material. While Defendants 

inexplicably insist that the Stroz materials exonerates them, they want this Court to enforce a trial 

date that will help them avoid uncovering the extent of their misconduct.

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

Defendants continue to rest on their theory that no files reached Uber, Ottomotto, or Otto 

Trucking, but Defendants do not even attempt to dispute that Waymo is entitled to discovery to test 

this theory. As an initial matter, Defendants’ contention that the Otto entities were not in possession 

of any of this information 

 Ex. 2. 

The incoming productions highlight the additional point that Waymo needs additional time to 

review, and digest, the technical documents and other materials collected by Stroz. Waymo had five 

months to conduct discovery, collect technical documents, question technical deponents, and evaluate 

its trade secret misappropriation claims prior to obtaining the Stroz Report, which as detailed reveals 

an enormity of additional materials that were sequestered from Waymo’s review. Now, following the 

Federal Circuit’s ruling, Waymo has but three weeks to sift through what is quickly becoming

apparent to be an exponentially higher number of documents, and question at least fifteen witnesses 

about those documents, all while simultaneously preparing its case for trial. 

Moreover, despite counsel for Defendants’ misrepresentations that Waymo is delaying 

inspection of the files located at the respective offices of counsel for Uber and Stroz, the ongoing 

inspections of voluminous amounts of data referenced below and counsel’s very argument actually 

demonstrates the prejudice to Waymo. Discovery is closed and Waymo’s entire team is currently 

devoted to summary judgment motions, motions in limine, hearing preparation, Daubert briefing and 

expert discovery, exchange of exhibit lists, witness lists, jury instructions, pretrial statements and trial 

preparation. It is demonstrably unfair that Waymo, through no fault of its own, should be forced to do 

all these tasks to address and obtain all these critical documents, materials, information and testimony 

and digest the information while also preparing for trial, given that Waymo should have had an 

opportunity to do months ago. 

This discovery is enormously important in light of the Stroz Report, which shows that there 

was 

Thus, to the extent Defendants’ theory is simply that they kept the 

files off of their own servers, the discovery is crucial in showing that Defendants knew that 

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

Levandowski could and did access Google’s proprietary files while working for Defendants by 

keeping those files on his own disks and devices regardless of whether the files physically were 

located on Defendants’ servers. Moreover, even taken at its word its repeated assertion that Uber 

never found any evidence of the “14,000” files on its systems, Uber has never even looked for 

made available for the first time yesterday. Ex. 4

Defendants do not dispute Waymo’s list of the tasks that must be performed for trial or provide 

a schedule for how those tasks could possibly be performed before October 10. This list includes: 

 Review hundreds of thousands of documents identified by Stroz. (Mot. 9-10). For 

example, Stroz made available on September 18, over 1.4 million documents identified 

as part of the investigation process, including 425,317 documents for Mr. 

Levandowski; 228,256 documents for Mr. Ron; 487,461 documents for Mr. Burnette; 

282,329 documents for Mr. Juelsgaard; and 55,743 documents for Mr. Sebern. (Ex. 

4). It is thus no surprise that during the course of Stroz’s review, Eric Friedberg 

indicated that 

 (Ex. 5)

 Resolve disputes over limitations on the Stroz productions. For example, at a July 18 

hearing, Judge Corley has ordered further briefing on whether privilege claims over 

certain documents shared with Stroz were waived. Stroz has provided initial counts 

totaling over 22,000 documents subject to continuing privilege claims. (Ex. 4.) 

Further, each of the diligenced employees—Levandowski, Ron, Burnette, Sebern, and

Juelsgaard—provided a list of terms for a screen for “private” documents and a log of 

supposedly privileged documents, that Waymo has provisionally challenged as 

improper. As shown in the Motion (at 11-13), Waymo’s initial review showed the 

privacy screen seeks to exclude Waymo from reviewing obviously relevant materials. 

Stroz’s initial count of documents subject to privacy screens totals over 83,000 

documents. (Ex. 4)

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

 Inspect approximately 150 devices from Stroz. On September 18, Judge Corley 

instructed that Waymo review the materials on the Stroz database before this 

inspection. (Dkt. 1645.)

 Conduct at least 12 delayed depositions and further depositions of several others based 

on gaps in their testimony revealed by the Stroz Report.

 Perform further expert analysis and supplement expert reports, with experts reviewing 

and analyzing hundreds of thousands of new technical documents now available, 

.

 Review documents and conduct briefing on the detailed record of 

by Uber, Ottomotto, and Levandowski reflected in the report.

 Revise or supplement motions in limine, summary judgment briefing, and trial 

strategy.

 Compel production of thousands of emails and documents from Uber and Ottomotto’s 

revised privilege logs.

 Potential further supplementation of Waymo’s Motion for an Order to Show Cause.

The only thing Defendants mention in response to this list is that Waymo has rejected Uber’s 

proposed dates for the depositions of Eric Tate (September 19), Rudy Kim (September 19), Travis 

Kalanick (September 19), Angela Padilla (September 20), and Lior Ron (September 21). (Dkt. 1623-4 

at 7; see Ex. 3) What Defendants failed to include in their Opposition was Waymo’s actual response 

to Defendants’ offer, which explained that the proposed schedule was not workable because it did not 

provide enough time to review and take into account the materials that continue to roll in following 

the Federal Circuit’s ruling. (Ex. 3.) Judge Corley has also now recognized that given the volume of 

the materials to be produced the parties should not “worry about that week deadline” that was 

previously set for completing these depositions. (Dkt. 1414, (8/28/17 Hearing Tr.) at 65:9-10.) While 

Defendants apparently suggest that Waymo rejected the proposed dates this week in bad faith, 

Defendants failed to explain how the depositions could reasonably go forward this week before 

Waymo receives (let alone reviews) all of the newly available evidence. Pursuant to Judge Corley’s 

instructions at the hearing yesterday, some of these depositions will now take place next week. But

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

even if all depositions could somehow be completed by the end of next week, that would be only 10 

days before trial is set to begin, leaving no reasonable amount of time for further discovery that is 

likely to arise from the information gained in the depositions, much less to use them and integrate the 

evidence into Waymo’s trial strategy. Of course, Defendants do not have this same problem as they 

have known or had access to these withheld facts all along. 

In sum, Defendants does not even address, much less dispute, the obvious conclusion that there 

is no schedule that will make it possible to complete the many necessary tasks prior to the current trial 

date of October 10. Defendants also do not dispute that Waymo is not to blame for this late 

production of material evidence. Indeed, Waymo vigorously pursued the Stroz Report and associated 

documentation from the outset, obtaining the first order related to these files at the beginning of June, 

and twice litigating the issues surrounding the Stroz materials all the way up to the Federal Circuit. 

Waymo is entitled to adequate time to prepare for trial with newly available evidence, and it should 

not be penalized by Defendants’, Levandowski’s, and other third parties’ delay in providing the 

material at issue.

II. DEFENDANTS DO NOT DISPUTE THAT WAYMO IS ENTITLED TO PROTECT 

ITS TRADE SECRETS BEYOND THE NINE TRADE SECRETS WAYMO IS 

LIMITED TO LITIGATING AT TRIAL AS A MATTER OF LAW

Defendants do not offer any substantive rebuttal to Waymo’s assertion that it should not and 

cannot be forced to waive claims for misappropriation of trade secrets in addition to the nine trade 

secrets Waymo has designated for trial as a matter of law. Under the circumstances described in 

Waymo’s motion, 

, Waymo’s decision not to waive claims for misappropriation of 

trade secrets is more than reasonable, and there is no legal or logical basis for the Court to force such a 

waiver.

Defendants offer no response to the fact that Waymo was required to list nine trade secrets for 

trial before it had all of the necessary information about which trade secrets presented the strongest 

basis for claims of misappropriation. Indeed, 

-

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

. The further discovery yet to come from and related to 

Stroz identified will likely shed even more light on the nature and scope of the 

misappropriation. Defendants provide no argument as to why it would be fair or reasonable to limit 

Waymo to the nine trade secrets given the evidence that was made available to Waymo after the fact. 

Defendants similarly fail to respond to Waymo’s assertions that there is no legal basis in the Federal 

Rules of Civil Procedure for this Court to require Waymo to waive trade-secret claims. And, again, 

Defendants offer no response to Waymo’s argument that that requiring Waymo to waive trade-secret 

claims would violate Waymo’s due process rights and Seventh Amendment right to a jury trial. 

To the extent Defendants suggest that Waymo should have raised this issue earlier, the reality 

is that Waymo diligently sought the Stroz materials from the outset; it was Defendants who resisted 

that discovery. And it was Uber’s counsel who claimed that “[t]here’s no ‘there’ there.” Dkt. 1261 

(Aug. 16, 2017 Tr.) at 29:14-17. Now, having finally received some (but not even close to all) of the 

documents, it is clear that the Stroz materials are extraordinarily important and will likely have a 

direct impact on which trade secrets should be tried in this case. Defendants should not benefit from 

their failed assertion of privilege by preventing Waymo from having adequate time to review and 

analyze the enormous and crucial trove of documents Defendants refused to disclose and 

misrepresented as nothing important. That is especially true given 

at a time when Defendants were supposedly contemplating litigation with Waymo. 

Simply put, it is unfair for a party to know about destruction of evidence, make a baseless claim of 

privilege, and then force the other side to deal with the impact of hundreds of thousands of new 

documents on the eve of trial.

Finally, Defendants suggest that a trial with 121 trade secrets would be impractical, but 

Waymo has never suggested that all 121 trade secrets would go to trial. Perlson Dec. ¶ 11. Rather, 

Waymo would narrow the case after having adequate opportunity to review the newly available 

evidence, fairly assess the degree to which its trade secrets were available to Defendants, and analyze 

Defendants’ LiDAR development work for additional evidence of use.

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

III. DEFENDANTS MISREPRESENT THE FINDINGS OF THE STROZ REPORT IN 

ORDER TO DEFLECT FROM THE STRAIGHTFORWARD AND UNDISPUTED 

ISSUES CONCERNING THE NECESSITY FOR A CONTINUANCE

The Stroz Report shows that 

. 

Dkt. 1603-5 (stating that Levandowski 

) (emphasis added). The report further establishes 

 Id. at 7-17. And 

, Uber permitted Levandowski to have ongoing access and input on product 

development. And Uber provides no explanation for why it would go forward with purchasing 

Levandowski’s company and putting him in charge of its entire self-driving car program given the 

report’s conclusions that he 

The Stroz Report shows further a plan for 

Uber and Ottomotto claim to have been anticipating litigation with Google 

after Levandowski left Google on January 28, 2016. Dkt. 1603-5 at 10, 12-13, and 19. Uber does not 

dispute this 

. But this argument simply ignores all of the statements 

in the Stroz Report to the contrary. Uber ignores entirely the report’s conclusion 

. The Stroz Report also reveals 

 The Stroz Report identifies

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01980-00104/9558758.2 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

 The 

list goes on and on. 

 Id. at 10-11. The substantial fact discovery, expert 

discovery, and motion practice that must be conducted before trial cannot plausibly be completed in 

time for a trial on October 10, much less allow Waymo an ability to prepare for a trial with this trove 

of new evidence at the same time it is conducting (and likely still moving to compel) the discovery it 

was entitled to from the outset of this case.

In addition, Defendants offer no substantive rebuttal to the evidence produced thus far which 

Waymo showed in its motion demonstrates that 

Dkt. 1603-7 at 7 (stating that Stroz 

; see also Dkt. 1603-8 (Apr. 1, 2016 email 

from Eric Tate at MoFo, quoting Stroz statement 

); Dkt. 1603-9 (email from Levandowski’s attorney complaining 

that Morrison & Foerster 

). The report itself repeatedly notes that 

. Dkt. 

1603-5 at 17, 24, 27, 30, 32. Yet, Uber’s Opposition fails to respond to this evidence and provides no 

affirmative evidence that any of the recommended follow-up work was performed. 

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WAYMO’S REPLY IN SUPPORT OF MOTION FOR CONTINUANCE

The sham nature of the “due diligence” is further shown by the fact that 

. Dkt. 1603-5 at 11. In particular, 

. 

Id.; see also id. at 8. As Stroz found: 

 Id. at 11. 

 Id. at 

11.

Defendants’ attempt to address the inconsistencies between the Stroz Report and the testimony 

of its witnesses is telling. Defendants do not substantively respond to the inconsistencies between Mr. 

Poetzcher’s testimony, in which he testified that he told Levandowski to get rid of any material from 

Google, and the Stroz Report’s findings, which state t 

. Dkt. 1603-5 at 10, Dkt. 1604-9 at 254-55. Uber’s claim that Waymo 

“selectively omitted” a portion of Mr. Kalanick’s original instructions to Levandowski similarly does 

not refute that, , Kalanick attempted to paint himself in a better 

light during deposition in this case by testifying that he told Levandowski to talk to his attorneys to 

determine what to do with the Google material he possessed. Dkt. 1604-8 at 23. Uber’s citation to 

additional examples of Rhian Morgan’s testimony where she offers only a vague recollection of her 

involvement in the Stroz process similarly does not refute, and in actuality confirms, that

 Dkt. 1603-5 at 13; Perlson Decl. ¶ 8. Moreover, 

Defendants cannot refute that Ms. Morgan did initially deny involvement with the due diligence 

investigation (Dkt. 1604-10 at 17:5-7), and Ms. Morgan later unequivocally confirmed that she 

“wasn’t involved in the due diligence process.” (Id. at 18:15-16.) In a sworn declaration to the Court, 

Ms. Morgan also declared that she has “never heard of the 14,000 files allegedly downloaded by 

Anthony Levandowski,” and has “never seen any evidence of any use of Google or Waymo 

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information during my tenure at Otto and Uber.” (Dkt. 177-1 at 4.) In light of the revelations in the 

Stroz report, this seems hard to believe.

The inescapable conclusion to be drawn is that the Stroz Report goes to the heart of this case. 

It establishes 

 Notwithstanding 

Uber went forward with the purchase 

of Levandowski’s company and, incredibly, put Levandowski in charge of its entire self-driving car 

program. Uber’s decision to move forward with the acquisition in spite of 

 All of these 

facts are critical to the disputes that will be tried before the jury. Levandowski’s decision to invoke 

his Fifth Amendment rights rather than testify further heightens the importance of these materials.

IV. DEFENDANTS’ SUBSTANTIVE CHALLENGES TO WAYMO’S CLAIMS ARE 

IRRELEVANT IN DECIDING WHETHER A CONTINUANCE IS WARRANTED

Defendants’ only substantive rebuttal to the undeniable fact that a continuance is necessary, in 

view of the facts disclosed in the Stroz Report and attendant discovery that is now necessary, is that

Waymo’s present case is “shaky” and thus the Court should proceed to trial now. (Opp at 9-15.) 

Waymo wholly disputes Defendants’ characterization of Waymo’s evidence that Defendants are using 

Waymo’s trade secrets. Indeed, Defendants assertions make clear that Defendants largely do not 

dispute their use of Waymo’s trade secrets, and that their primary defense to Waymo’s claims is that 

they are taking steps to redesign their LiDAR systems in an attempt to avoid Waymo’s trade secrets. 

Moreover, these merits-based arguments are completely divorced from the issues of whether a 

continuance is warranted based on the Federal Circuit’s rulings and Waymo’s position that it should 

not waive the remainder of its trade secrets without additional discovery. Aside from being 

completely irrelevant, Waymo has, or will shortly, address the substance of Defendants’ arguments in 

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its briefs in opposition to Defendants’ motions for summary judgment and motions in limine from 

which these arguments are largely based. 

A. Trade Secret Challenges Are Meritless and Irrelevant

Waymo has previously provided sufficient evidence of trade secret misappropriation for this 

Court to grant provisional relief, based on review of voluminous evidence provided by Waymo. Dkt. 

426. Over the course of the discovery period that followed the Court’s provisional relief Order 

(which, as stated above is currently ongoing in light of the Federal Circuit’s ruling) Waymo has 

developed evidence of Uber’s misappropriation and use of all nine trade secrets in its final election. 

(See Dkt. 1371-4). Defendants largely do not dispute Waymo’s evidence that its trade secrets have 

been used, but instead resort to challenging the trade secret status of this information and arguing

should absolve Defendants of any liability. (Dkt. 1623-4 at 7-

10.) Not true. Setting aside that are improper because they are 

continue to use Waymo’s trade secrets as their foundation (see Dkt. 1560), the mere fact that Uber 

that Uber’s present LiDAR designs 

misappropriate Waymo’s trade secrets. Moreover, Defendants have yet to produce any evidence that 

and their lead LiDAR engineer has 

admitted that Uber . Id.

Defendants also resort to their tactic du jour of taking shots at Waymo’s forensic investigation, 

and Mr. Zbrozek’s out-of-context characterization of the SVN repository, to suggest that Waymo does 

not maintain its LiDAR design information as trade secret. As Waymo has shown repeatedly though, 

Defendants continuously rely on incomplete and mischaracterized evidence in support of these 

assertions. Perlson Decl. ¶ 3; see also Dkt. 1540-24, Dkt. 1572, Dkt. 1589, Dkt. 1630. The Court 

should put a stop once and for all to Defendants’ attempts to force this evidence into the discussion 

despite its irrelevance to any of the issues. 

B. Attacks on Waymo’s Damages Model Are Subject To Separate Briefing And 

Have No Bearing On The Present Continuance Request

Contrary to Defendants’ argument that Waymo’s damages theories are “over-the-top” and 

“wildly speculative” (Mot. at 1), all three of Waymo’s damages theories are based on Uber’s own

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estimates of how acquiring Otto (and thus, Waymo’s trade secrets) would 

. As it was considering whether to acquire Otto, Uber estimated that acquiring 

Otto could (Dkt. 1606-5.) Putting a dollar figure on 

. (Id.) Uber also acknowledged that 

.”

Using Uber’s own as a starting point for his unjust enrichment analysis, 

Waymo’s damages expert Michael Wagner apportioned to a trade secret level based on: (1) how long 

Uber said it would take to design around Waymo’s trade secrets (for Trade Secret Nos. 2, 7, 9, 13, 14 

and 96), (2) how long it took Waymo to develop the trade secrets (for Trade Secret Nos. 25 and 111), 

or (3) how much Uber paid to acquire the trade secrets from Tyto (a Levandowski company) (for 

Trade Secret 90). Mr. Wagner similarly used Uber’s as a starting point for his 

reasonable royalty analysis, from which he proceeded to evaluate a hypothetical negotiation between 

the parties using the Georgia-Pacific factors.

Without citation to any supporting case law, Defendants request that the Court hold a bench 

trial on a narrowed list of trade secrets in part due to alleged deficiencies in Waymo’s expert Michael 

Wagner’s testimony on damages. (Dkt. 1623-4). Defendants contend that Mr. Wagner’s damages 

testimony should be excluded, and as a result, Defendants argue that “because Waymo has no other 

disclosed evidence of monetary damages” (Dkt. 1623-4 at 14), Waymo would only be left with a 

claim for injunctive relief that should be resolved through an equitable bench trial. (Dkt. 1623-4). 

Setting aside that Defendants have failed to provide a valid basis for excluding Mr. Wagner’s 

opinions, which will be dealt with in substance in response to Defendant’s Motion to Exclude, there is 

extensive record evidence of Waymo’s monetary damages both from Waymo and from Uber. (See 

Dkt. 933-3; Dkt. 933-6.) Even if Mr. Wagner’s expert opinion on damages were to be excluded, the 

scope of monetary damages caused as a result of Defendants’ malfeasance should be evaluated by a 

jury through documentary evidence and testimony from lay witnesses. See, e.g., Pet Food Exp. Ltd. 

V. Royal Canin USA, Inc., 2011 WL 6140874 (N.D. Cal. Dec. 8, 2011); U.S. ex rel. Technica, LLC v. 

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Carolina Cas. Ins. Co., 2012 WL 1229885 (S.D. Cal. April 12, 2012); Lightning Lube, Inc. v. Witco 

Corp., 4 F.3d 1153, 1161 (3d Cir. 1993); Ajaxo Inc. v. E*Trade Fin. Corp., 187 Cal. App. 4th 1295, 

1305 (2010); Fed. R. Evid. 701. 

For the aforementioned reasons, the Court should deny Defendants’ request for an equitable 

bench trial, even if it should ultimately choose to grant Defendants’ separate pending motion to 

exclude Mr. Wagner’s opinions. 

V. THE COURT SHOULD NOT APPOINT AN EXPERT PURSUANT TO FEDERAL 

RULE OF EVIDENCE 706

Defendants fail to refute that a court-appointed expert is not necessary or appropriate in this 

case and would instead be highly prejudicial to the parties’ ability to present their case to the jury

because this case does not present the “rare and compelling circumstances” justifying the appointment 

of a court-appointed expert. Monolithic Power Systems, Inc. v. O2 Micro Intern. Ltd., 558 F.3d 1341, 

1348 (2009); see also Womack v. GEO Grp., Inc., No. CV-12-1524-PHX-SRB, 2013 WL 2422691, at 

*2 (D. Ariz. June 3, 2013) (“District courts do not commonly appoint an expert pursuant to Rule 

706 and usually do so only in exceptional cases.”). Instead of Waymo and Defendants putting on their 

competing cases, with the jury deciding which party is correct, the parties’ experts will be diminished 

as “partisan” and the jury will naturally go with the “independent” court appointed expert every 

time. It is for this reason that Rule 706 is very rarely invoked and, under the circumstances of this 

case, will result in the denial of Waymo’s Seventh Amendment right to a jury trial. See Kian v. Mirro 

Aluminum Co., 88 F.R.D. 351, 356 (E.D. Mich. 1980) (“The presence of a court-sponsored witness, 

who would most certainly create a strong, if not overwhelming, impression of ‘impartiality’ and 

‘objectivity,’ could potentially transform a trial by jury into a trial by witness. Under the 

circumstances of the present case, where the issues are within the grasp of the jury, appointment of an 

expert should and can be avoided.”) Defendants also do not dispute that given that autonomous 

vehicle technology is very new and there are only a small number of companies working on 

developing the technology that it will likely be extremely difficult, if not impossible, to identify an 

individual with the correct background and expertise who does not have a prior association with one 

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of the parties in this case, while having the time and ability to absorb the already voluminous record in 

this matter.

***

For the foregoing reasons, Waymo respectfully requests that the Court grant Waymo’s motion 

for a continuance of the October 10 trial date. In addition, Waymo submits that the Court should not 

appoint an expert pursuant to Federal Rule of Evidence 706.

DATED: September 19, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

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