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WAYMO’S LIST OF DEFENDANTS’ DISCOVERY MISCONDUCT

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 LIST OF 

DEFENDANTS’ DISCOVERY 

MISCONDUCT 

Judge: The Honorable William Alsup

Trial Date: October 10, 2017
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WAYMO’S LIST OF DEFENDANTS’ DISCOVERY MISCONDUCT

Pursuant to the Court’s order at the July 26 hearing, Plaintiff Waymo LLC (“Waymo”) 

submits this list of up to “two dozen acts” of discovery misconduct by Defendants that Waymo may 

request be introduced to the jury. (7/26/17 Hearing Tr., 72:11-14.) Because discovery is not yet 

complete, the parties await the Federal Circuit’s ruling on Waymo’s motion to compel production of 

the due diligence report and documents responsive to the Stroz subpoena, other discovery issues 

remain pending, more misconduct may be identified and/or become more relevant/significant as issues 

evolve, this list is not complete and subject to supplementation and amendment. 

1. Uber was aware that as of March 2016, Levandowski had in his possession five 

disks of Google confidential information that he then destroyed. Uber did not disclose that to 

Waymo in the litigation until June 5, 2017, despite such information being responsive to at least 

the Court’s March 16, 2017 order requiring Defendants and their attorneys to disclose any 

destruction of downloaded materials that they were aware of by March 31, 2017. 

2. Uber’s counsel did not disclose that, since March 2017, they have had access to 

certain downloaded materials through a third-party discovery vendor (Epiq) that they employed to 

archive client documents, despite such information being responsive to the Court’s March 16 

order requiring Defendants and their attorneys to report on and return the downloaded materials by 

March 31, as well as the Court’s May 11 order requiring the parties to report on and return the 

downloaded materials by June 23, 2017. Epiq continues to be Uber’s counsel's discovery vendor, 

and Uber’s counsel continues to have access to the review database.

3. Uber’s counsel did not disclose the existence of another set of downloaded 

materials in their possession until July 12, 2017, despite such information being responsive to the 

Court’s March 16 order requiring Defendants and their attorneys to report on and return the 

downloaded materials by March 31, as well as the Court’s May 11 order requiring the parties to 

report on and return the downloaded materials by June 23, 2017.

4. Uber’s vendor (Stroz) has had access to certain downloaded materials since 2016. 

Despite such information being responsive to the Court's March 16 order requiring Defendants and 

their attorneys to report on and return the downloaded materials by March 31, as well as the 

Court’s May 11 order requiring the parties to report on and return the downloaded materials by 
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WAYMO’S LIST OF DEFENDANTS’ DISCOVERY MISCONDUCT

June 23, 2017, Uber did not take steps to cause its vendor to return the downloaded materials. 

Stroz continues to work with Uber and its attorneys and is retained by Uber’s counsel to assist in 

this litigation. 

5. As recently, as August 22, two days before the close of discovery, it was revealed

that Uber’s vendor, Stroz, had in its possession “numerous” other devices from the Diligenced 

Employees that it never searched (during the “due diligence” process or otherwise) and had never 

previously disclosed to Waymo or the Court. 

6. Defendants did not produce Uber-Otto acquisition documents until they wanted to 

affirmatively use them to support arguments made in briefs and then produced them in heavily 

redacted form. For example, Defendants redacted key provisions from these documents, such as 

Uber’s agreement to indemnify Levandowski and Lior Ron for “Bad Acts.” 

7. The Court’s May 11 order required Defendants to prepare and serve on Waymo by 

June 23 “a complete and chronological log of all oral and written communications . . . wherein 

Anthony Levandowski mentioned LiDAR to any officer, director, employee, agent, supplier, or 

consultant of defendants.” Uber has violated that order in several respects. For example, Uber has 

supplemented its log on four separate occasions: June 27, June 30, July 3, and July 19, with the 

number of entries increasing from 561 (in the log provided by the Court’s June 23 deadline) to 

1086 (in the log provided on July 19). Since Uber’s most recent supplemental log, Uber has 

produced documents showing additional LiDAR-related communications between Mr. 

Levandowski and Uber employees that are not disclosed on the log, such as UBER00236495 

(11/16/2016 text message from Mr. Levandowski to Eric Meyhofer pertaining to LiDAR, 

produced by Uber on August 17) and UBER00301268 (6/21/2016 text message from Mr. 

Levandowski to Don Burnette pertaining to LiDAR, produced by Uber on August 23). 

8. Otto Trucking has also violated the May 11 Order. Otto Trucking supplemented its 

log once, on August 18, after being directed to do so at the August 16 hearing on Waymo’s 

Motion for an Order to Show Cause.
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WAYMO’S LIST OF DEFENDANTS’ DISCOVERY MISCONDUCT

9. Uber withheld the retainer agreement and side-letter agreements with Stroz as 

privileged until Uber affirmatively wanted to use that document to support an argument in one of 

its briefs. 

10. Defendants withheld the Stroz due diligence report conducted in connection with 

the Uber-Otto acquisition, claiming it was privileged without a clear identification thereof in its 

privilege log. Waymo has still not obtained a copy of that report. 

11. Defendants hid the name of the vendor (Stroz) that conducted the due diligence 

investigation until required by the Court to disclose it. 

12. Along with the Stroz report, Defendants withheld over 3,000 documents referring 

to the downloaded materials as privileged. 

13. Defendants' numerous privilege logs have not identified documents with the detail 

as required by the Court. Defendants have repeatedly sought to justify privilege claims as logged 

with no corresponding support in the privilege logs, which is improper. 

14. The Court’s May 11 order required Defendants to provide by June 23 a “detailed 

accounting under oath setting forth every person who has seen or heard any part of any 

downloaded materials, what they saw or heard, when they saw or heard it, and for what purpose.” 

Defendants violated that order by not providing a complete accounting by that date. Uber has 

supplemented its accounting on three separate occasions to address numerous improper omissions: 

June 28, July 20, and August 13, with the length of the accounting increasing from 6 pages (in the 

accounting provided by the Court’s June 23 deadline) to 10 pages (in the accounting provided on 

August 13).

15. As of March 29, 2017, Uber purports to be aware that Levandowski downloaded 

the “downloaded materials” and subsequently destroyed them, but Uber did not disclose that to 

Waymo or the Court until August 4, despite such information being responsive to at least the 

Court’s March 16 order requiring Defendants and their attorneys to disclose any destruction of 

downloaded materials that they were aware of by March 31, 2017, Waymo’s Expedited 

Interrogatory No. 1, and other discovery. 
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WAYMO’S LIST OF DEFENDANTS’ DISCOVERY MISCONDUCT

16. As of March 29, 2017, Uber purports to be aware that Levandowski downloaded 

the “downloaded materials” and his alleged reason for doing so in relation to his bonus, but Uber 

did not disclose this theory in the litigation until June 28, despite having a June 21 deadline to 

identify witnesses with knowledge relevant to the parties claims and defenses and the Court's 

Order to identify Defendants' intentions to waive privilege. 

17. On May 11, 2017, the Court ordered Defendants to make available for inspection to 

Waymo Defendants’ “ongoing LiDAR work,” including emails. On May 30, Waymo asked to 

inspect text messages between Travis Kalanick and Anthony Levandowski. Defendants did not 

produce text messages sent from Travis Kalanick to Anthony Levandowski until August 1, and did 

not produce more than 12 text messages from Travis Kalanick on that date.

18. Although Uber purports to have anticipated litigation against Google by no later 

than February 2016, and Travis Kalanick and Anthony Levandowski frequently corresponded via 

text messaging, Travis Kalanick set his text messages to automatically delete after 30 days, 

permanently destroying an unknown volume of highly relevant evidence.

19. Although Waymo served an expedited interrogatory on May 22 seeking 

information regarding ownership of Tyto LiDAR, Uber did not disclose that Levandowski 

(through an elaborate structure of shell companies and trusts, designed to conceal his involvement) 

owned and controlled Tyto LiDAR. Tyto LiDAR was acquired by Otto and ultimately Uber. 

Uber’s independent development theory as to certain of the asserted trade secrets is based upon 

alleged development by Otto engineers who previously worked at Tyto LiDAR, the company that 

Mr. Levandowski owned and controlled but whose involvement was concealed by Uber.

20. Defendants produced large volumes of documents on the eve of the close of 

discovery, from previously deposed witnesses including Brian McClendon, Eric Meyhofer , and 

Don Burnette. Some of these documents appear to be what Defendants contend will corroborate 

their theory as to why Levandowski downloaded the “downloaded materials.” Waymo continues 

to investigate this issue and meet and confer with Defendants in relation thereto.
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WAYMO’S LIST OF DEFENDANTS’ DISCOVERY MISCONDUCT

21. Defendants claim that Anthony Levandowski refused to cooperate with Uber in this 

case, but blocked Waymo’s attempts to obtain discovery on the extent of that lack of cooperation 

on the basis of privilege. 

22. Although Anthony Levandowski is a shareholder and member of Otto Trucking, 

Otto Trucking refused to search his documents or ask him for information in response to Waymo’s 

discovery requests, regardless of whether the information sought was incriminating. Yet, 

Levandowski has been available to Otto Trucking’s counsel to provide guidance on legal strategy 

and facts and obtaining evidence. Otto Trucking did not disclose those facts or evidence to 

Waymo in a timely manner.

23. Otto Trucking's counsel referenced evidence in two depositions this week which 

has not been produced to Waymo, and refused to explain to Waymo where Otto Trucking obtained 

such evidence. When Waymo pressed for this information, Levandowski's separate counsel 

produced text messages on August 24 which make clear that Levandowski obtained the evidence 

at issue in late July, but did not disclose it to Waymo and still has not produced it to Waymo. 

DATED: August 24, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ David A. Perlson

David A. Perlson

Attorneys for WAYMO LLC