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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 1 of 11
	











 

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 2 of 11
 4

in for Morrison & Foerster to represent one of the defendants in

the case, that being Otto Trucking.

THE COURT: All right. I did see that. I did not realize I

had to sign it, but I will get that done, at some point. All

right.

MR. GONZÁLEZ: Thank you.

THE COURT: So we are here on a motion to compel

arbitration. It's your motion.

MR. GONZÁLEZ: Your Honor, Mr. Hume is going to present our

argument.

THE COURT: Fine.

MR. HUME: Good morning, Your Honor. Hamish Hume from Boies

Schiller for Uber and Otto Moto.

Your Honor, the Court asked four seemingly very on-point

questions. I don't know if the Court would like to hear the

answer to that first.

THE COURT: Let's do this, if you don't mind.

Who is going to respond on your side?

MR. VERHOEVEN: I am, Your Honor.

THE COURT: Okay. So, let's go through these four

questions. And then hopefully we will still have some time for

you to do some argument. The questions are really directed --

the first two, anyway -- at Waymo. 

So the first question is: Will Waymo forego any reliance in

this case on any employment or other agreement with Levandowski

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 3 of 11
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containing an arbitration clause? 

MR. VERHOEVEN: So --

THE COURT: Wait, wait. 

Will Waymo seek to use any such agreement for any purpose in

this case?

Okay, so what's the answer to that?

MR. VERHOEVEN: So if I could, Your Honor, I would break it

up into each question.

THE COURT: Sure.

MR. VERHOEVEN: So with respect to the first question, the

answer is: Yes.

THE COURT: Wait a minute.

MR. VERHOEVEN: Waymo will forego any reliance on the terms

of any employment or other agreement with Levandowski containing

an arbitration clause.

THE COURT: Answer: Yes. Okay. How about the second

question?

MR. VERHOEVEN: The second questions is: Will Waymo seek to

use any such agreement for any purpose in the case? 

The answer is: No, provided that Uber does not open the

door by reference to these agreements or the lack thereof of

those agreements, which is something that we would just have to

address down the road if they tried to inject them into the

case, somehow. But otherwise the answer is: No.

THE COURT: Well, all right.

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 4 of 11
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So the other side in the briefing has said even if you're

not relying on the contracts, per se, the moment will come in

the case when you have got to prove up that these were trade

secrets. And one of the things that you look at to see if it

was a trade secret was: Did your company have security measures

to safeguard the confidentiality of the information?

MR. VERHOEVEN: (Nods head)

THE COURT: To which you would normally want to say: Well,

we made him sign an agreement that he would keep it

confidential. And we made everybody else sign a similar

agreement.

I mean, I'm -- I think that's one of the things. It's not

the only way to do it, but that would be one of the things that

you would normally point to.

So, what is your answer to that?

MR. VERHOEVEN: My answer to that, Your Honor, is we have

plenty of other evidence to support that standard other than

specifically relying on any term in Mr. Levandowski's employment

agreement.

THE COURT: Well --

MR. VERHOEVEN: So we will not --

THE COURT: To be --

MR. VERHOEVEN: Sorry.

THE COURT: But does that mean that you will not refer to

that in your -- in presentation to the jury to try to show that

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 5 of 11
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the company had plenty of ways to maintain confidentiality?

MR. VERHOEVEN: We would not refer to Mr. Levandowski's

employment agreements or any of them in an effort to show that

we're maintaining confidentiality.

We may ask your Court -- and it would be only with

permission -- whether we could talk about our general policy

that employees sign employment agreements. But if Your Honor

believes that is too close, then we won't do that either.

We have plenty of evidence to support our measures that we

have taken. And we have outlined those in our brief. I can go

over them if you would like, Your Honor.

THE COURT: Well, let's -- I realize you've got more to your

trade secrets quiver than that one arrow. But, okay.

What's wrong with what -- what do you say in response to

what I just heard on Question 1?

MR. HUME: Your Honor, Waymo doesn't get to pretend that

these contracts don't exist in order to avoid arbitration. They

want to invoke other sources of law, common law, the protections

they took on their files, and say that's enough to show both

that they took reasonable measures for confidentiality, and that

Mr. Levandowski breached some duty of confidentiality.

But the fact of the matter is, Waymo chose to have a

contract. They chose to have a contract with a lot of relevant

provisions in it. A contract that talks about confidential

information. A contract that talks about returning documents

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 6 of 11
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when you leave. A contract that talks about inventions. And

who owns what, including itemizing in an exhibit: Which

inventions did Mr. Levandowski already own?

One only needs to read a little bit of the press in this

case. You know, Mr. Levandowski had an active inventorship

before he went to Google; he had side businesses while he was at

Google. One of those businesses was bought back. The terms of

this agreement (Indicating) tell us: What did they own, what

did he own.

They chose to have that contract. They can't now litigate

this case as if it were nonexistent, which is what they want to

do to avoid arbitration. There's no case that allows that. And

there are at least three cases in California state court that

have required a plaintiff in this position to arbitrate, even

though they did not want to rely in any way on the contract.

They tried to stay as far away from it as they could.

THE COURT: Well, give me one such example.

MR. HUME: In the Metalclad case, Your Honor -- and if we

could, we have some demonstratives, and --

THE COURT: No, no, no, wait, wait, wait. Wait. Just give

me the -- no, I don't want -- I don't want those yet. Time

permitting, we'll get to them. But give me the name of the

case, because I -- I question what you just told me. And I want

to just look at your best case.

MR. HUME: So let me be clear: None of these cases had a

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 7 of 11
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their argument that there's inexplicable intertwining, as you

may recall in the reply brief, there's a long list of bulleted

points from our pleadings and complaint.

And as we pointed out in our surreply, not a single one of

those quotes referenced or relied on the employment agreement

with Mr. Levandowski. So the second aspect of the second prong

is not met.

And so, even if Your Honor is a little skeptical about my

comments about whether they need to be a signatory which I think

is supported under the law, it's -- it's not going to turn the

scales anyway, because you've got the second prong, which has

been construed by the Court to refer to the obligations in the

contract. It's not inextricably intertwined with the facts or

whatever.

It's inter- -- sorry, Your Honor. It's inter- --

intertwined, I'll say, with the causes of action -- or excuse

me -- the clauses and the obligations in the employment

agreement. And here, it's not. We're not relying on the

employment agreement, at all. And so there's no intertwinement.

THE COURT: All right. Let's hear the other side's view of

that.

MR. HUME: Your Honor, there's nowhere that Waymo was more

clear with its employees and Mr. Levandowski on what the terms

of their obligations were on keeping trade secret and other

proprietary information confidential than the contract. So the

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 8 of 11
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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 9 of 11
 40

of its employees, and it's at the broadest possible arbitration

agreement you can. And then when there's the least little

possibility that maybe you're going to get stuck with the same

reciprocal obligation, you're suddenly scrambling to try to

figure out some -- so now you say: Oh, "anyone," "anyone," oh,

that means anyone at Google. All right. 

MR. VERHOEVEN: So be that as it may, Your Honor, the issue

here is equitable estoppel. And that doesn't mean equity in the

world. I just want to focus this.

The equitable estoppel we're talking about has been defined

by the courts. And what it's talking about is precluding a

party from claiming the benefits of the terms of the contract

while simultaneously attempting to avoid the burdens of that

contract.

THE COURT: I understand that. And I -- I think that tends

to work in your favor. But I, nevertheless -- all right.

Mr. Chatterjee, I'm going to give you a chance to say what you

wanted to say, and then we have got to bring it to a close.

MR. HUME: We also, Your Honor, haven't had a chance to

answer Questions 3 and 4.

THE COURT: We have run out of time. You see what's

happened today. Been going since 8:00.

MR. HUME: I don't think they're controversial. Question

No. 3 -- 

THE COURT: I may give you a chance to submit it under --

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Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 10 of 11
CERTIFICATE OF REPORTER

 I, BELLE BALL, Official Reporter for the United States

Court, Northern District of California, hereby certify that the

foregoing is a correct transcript from the record of proceedings

in the above-entitled matter. 

/s/ Belle Ball____________________

Belle Ball, CSR 8785, CRR, RDR

"383:27

Case 3:17-cv-00939-WHA Document 476-2 Filed 05/19/17 Page 11 of 11