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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

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 BRIEF IN

RESPONSE TO COURT’S QUESTIONS

FOLLOWING APRIL 27, 2017 HEARING

ON DEFENDANTS’ MOTION TO

COMPEL ARBITRATION OF, AND TO

STAY, TRADE SECRET AND UCL

CLAIMS

Date: April 27, 2017

Time: 8:00 a.m.

Ctrm: 8, 19th Floor

Judge: Honorable William H. Alsup

Trial Date: October 2, 2017

Case 3:17-cv-00939-WHA Document 319 Filed 05/01/17 Page 1 of 7
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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

I. QUESTION 3: HOW WOULD PROVISIONAL RELIEF WORK IN THIS CASE IF

SENT TO ARBITRATION? WOULD PROVISIONAL RELIEF IN

ARBITRATION BE BACKED UP BY THE CONTEMPT POWER OF THE

COURT? HAS ANY REPORTED DECISION EVER DEALT WITH THIS ISSUE?

A. There Are No Established JAMS Procedures For Provisional Relief

There are no JAMS procedures for provisional relief beyond JAMS Rule 24(e): “The

Arbitrator may grant whatever interim measures are deemed necessary, including injunctive relief and

measures for the protection or conservation of property and disposition of disposable goods. Such

interim measures may take the form of an interim or Partial Final Award, and the Arbitrator may

require security for the costs of such measures.”1 The application of this rule to a specific JAMS

arbitration is entirely up to the arbitrator(s) and/or agreement of the parties. Here, there is no

procedure or schedule under which Waymo could seek provisional relief in connection with Uber’s

arbitration demand. JAMS has indicated that it is deferring any action, including selection of the

arbitrator(s), until the Court rules on Uber’s Motion to Compel Arbitration. (Perlson Decl., Ex. 1.)

Uber has not proposed any expedited procedure or schedule, and the earliest date Uber has proposed

for an arbitral merits hearing is after the Court’s October 2 trial date. (Dkt. 204-7.)

Uber suggests it is “willing to move as quickly as Waymo wishes” (Reply at 1), but its actions

contradict these empty promises. Uber waited five weeks after Waymo filed the Complaint (and four

days after filing the Motion to Compel Arbitration) to bring its Arbitration Demand. The emergency

relief Waymo seeks – and is entitled to – can only be provided by this Court, where Waymo’s Motion

for a Preliminary Injunction is fully briefed and will be heard on May 3. In contrast, it would likely be

months before Waymo could obtain any ruling on provisional relief in arbitration (which, in any

event, would not be enforceable until confirmed by this Court – see I.B infra). First, JAMS would

1

JAMS Rule 24(e), “Interim Measures,” available at https://www.jamsadr.com/rules-comprehensivearbitration/. This rule also expressly provides that a party to JAMS arbitration may pursue provisional

relief from a district court. Id. (“Any recourse by a Party to a court for interim or provisional relief

shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to

arbitrate.”). JAMS also has rules for “Expedited Procedures,” which apply to the merits hearing, not

to interim measures. JAMS Rule 16.1, and 16.2. Discovery under the Expedited Procedures is

extremely limited – for example, the default is one deposition per side. Id. 16.2(d)(i). Uber elected

not to “opt into” the Expedited Procedure in its arbitration demand. (Dkt. 204-3.)

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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

need to be advised of the ruling on Uber’s Motion to Compel Arbitration. Second, JAMS would need

to solicit “strike lists” from the parties and empanel arbitrator(s).2 Third, the arbitrator(s) would need

to set a briefing schedule and hearing date for Waymo’s provisional relief request. Fourth, the parties

would need to submit the briefing and conduct the hearing before the arbitrator(s). Fifth, the

arbitrator(s) would need to review the record and issue a ruling.

Waymo is suffering irreparable injury from Uber’s ongoing use and disclosure of its trade

secrets. (Dkt. 24 and 254.) The Court is already familiar with Uber’s delay tactics in this litigation.3

And unlike yet-to-be-empaneled arbitrator(s), the Court is already fully up to speed on the merits.

Therefore, the Court should grant Waymo’s Motion for Preliminary Injunction regardless of how it

rules on Uber’s motion to compel arbitration of Waymo’s trade secret claims. Toyo Tire Holdings Of

Americas Inc. v. Cont'l Tire N. Am., Inc., 609 F.3d 975, 981 (9th Cir. 2010) (finding error in failing to

consider a request for injunctive relief prior to compelling arbitration given that the procedural delays

associated with the selection of arbitrators “could defeat any ultimate award” granted in arbitration

and “any subsequent relief could be useless”);see also Blue Cross Blue Shield of Mich. v. Medimpact

Healthcare Sys., Inc., No. 09-14260, 2010 WL 2595340, at *1 (E.D. Mich. June 24, 2010) (district

court granted preliminary injunction before staying proceedings pending arbitration).

B. Any Arbitration Award Of Provisional Relief Would Still Require

Confirmation From This Court To Be Enforceable With Contempt Power

As the Ninth Circuit has held, “[a]rbitrators have no power to enforce their decisions. Only

courts have that power.” Pac. Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019,

1023 (9th Cir. 1991). While arbitration panels “have the power to issue temporary equitable relief in

2 On April 14, JAMS contacted the parties to provide a “list of available arbitrators.” (Perlson Decl.,

Ex. 2.) That list identified eight available JAMS arbitrators, only one of whom (Hon. James Ware) is

an arbitrator in the Google-Levandowski arbitrations. JAMS also requested a “strike list” from each

party. (Id.) On April 21, Waymo informed JAMS of its position that providing a strike list would be

premature in light of the recognition by JAMS of the jurisdictional issues at play including in the

pending motion to compel. (Perlson Decl., Ex. 1.) Although Waymo offered to provide a strike list at

that time, JAMS did not request one, nor did it otherwise respond to Waymo’s email. As far as

Waymo is aware, Uber did not provide a strike list either on April 21, or at any time thereafter.

3 The lack of progress in the Google-Levandowski arbitrations (see Section II, infra) – where Mr.

Levandowski had been, until recently, represented by the same attorneys who submitted Uber’s

arbitration demand – also sheds light on how Uber is likely to approach scheduling in any arbitration.

Case 3:17-cv-00939-WHA Document 319 Filed 05/01/17 Page 3 of 7
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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

the nature of a preliminary injunction,” only “district courts [] have the power to confirm and enforce

that equitable relief as ‘final’ in order for the equitable relief to have teeth.” Arrowhead Glob. Sols.,

Inc. v. Datapath, Inc., 166 F. App’x 39, 44 (4th Cir. 2006) (emphases added) (citing Pac.

Reinsurance, 935 F.2d at 1022-23). Therefore, any provisional relief (eventually) granted by the

arbitrator(s) would be unenforceable unless and until Waymo returns to this Court for confirmation of

the award. In other words, there is no scenario under which an adjudicator other than this Court will

be enforcing any preliminary injunction against Uber. Compelling Waymo to seek provisional relief

in JAMS arbitration would simply delay – by at least weeks, and probably months – the date when

Waymo could obtain enforceable relief enjoining Uber from its continuing use and disclosure of

Waymo trade secrets.

C. The Power to Review An Arbitrator’s Award Is Very Limited

The Court’s power to independently review any arbitral award of provisional relief is severely

constrained. Courts must uphold an arbitrator’s award, even if convinced the arbitrator committed

serious error, so long as the arbitrator is “even arguably construing or applying the contract and acting

within the scope of his authority.” Pac. Reinsurance, 935 F.2d at 1024 (quoting United Paperworkers

Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)); Barnes v. Logan, 122 F.3d 820, 825 (9th Cir.

1997) (arbitration award “must be upheld unless it is completely irrational or constitutes a manifest

disregard of law”) (internal quotation marks and citation omitted). Indeed, a district court’s authority

to review an arbitration award “is among the narrowest known at law because to allow full scrutiny of

such awards would frustrate the purpose of having arbitration at all[.]” Three S Del., Inc. v. Dataquick

Info. Sys., Inc., 492 F.3d 520, 527 (4th Cir. 2007) (internal quotation marks and citation omitted).

II. QUESTION 4: HOW MUCH DISCOVERY AND MOTION PRACTICE HAVE

OCCURRED IN WAYMO’S ARBITRATION PROCEEDINGS AGAINST

LEVANDOWSKI TO DATE?

Virtually no discovery or motion practice has occurred to date in Google’s arbitration

proceedings against Mr. Levandowski, despite the commencement of those arbitrations in October of

last year. No party has served written discovery requests as of this filing – no requests for production,

Case 3:17-cv-00939-WHA Document 319 Filed 05/01/17 Page 4 of 7
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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

no interrogatories, no deposition notices, and no subpoenas.4 Additionally, although Google and Mr.

Levandowski had agreed upon an April 10, 2017 date to voluntarily produce relevant documents

under JAMS rules, Mr. Levandowski invoked his Fifth Amendment right against self-incrimination on

April 10 and refused to produce any documents. Mr. Levandowski’s co-Respondent from Otto has

also delayed producing relevant documents, producing only 14 new documents to Google on April

10.5In light of Mr. Levandowski’s improper invocation of the Fifth Amendment and violation of

Rule 17(a), Google has filed a motion to compel. That motion is set to be heard by the arbitral panel

on May 8. Mr. Levandowski is scheduled to file a motion to dismiss later today, May 1.6 That motion

is set to be heard by the panel on June 9.

III. SUPPLEMENTAL QUESTION: WHAT DOES “MAY BE RENDERED

INEFFECTUAL WITHOUT PROVISIONAL RELIEF” MEAN IN CAL. CODE

CIV. PROC. § 1281.8(b)?

“Section 1281.8 was enacted primarily to allow a party to an arbitration to obtain provisional

judicial remedies without waiving the right to arbitrate[.]” Woolley v. Embassy Suites, Inc., 227 Cal.

App. 3d 1520, 1527 (1991). Accordingly, Section 1281.8 mirrors the California statutory language

that courts apply in determining whether injunctive relief is necessary or appropriate. Compare Cal.

Civ. Proc. Code 1281.8(b) ( “A party to an arbitration agreement may file ... an application for a

provisional remedy in connection with an arbitrable controversy, but only upon the ground that the

4 Although Google has tried to obtain discovery from Mr. Levandowski and his co-Respondent since

late Fall, they have actively delayed discovery. Respondents refused to produce Rule 17 discovery

until the panel’s first conference set a deadline, repeatedly tried to delay discovery until a June motion

to dismiss hearing and required extensive meet and confer before setting discovery dates.

Respondents also used the April 10 Rule 17 production date as a basis to ask the panel to delay

service of more formal written discovery. JAMS Rule 17(a) requires that parties voluntarily produce,

at the outset, “all relevant, non-privileged documents, including, without limitation, copies of all

documents in their possession or control on which they rely in support of their positions[.]” Id.,

available at https://www.jamsadr.com/rules-employment-arbitration/.

5

In contrast, to date Google has produced 521 documents in the arbitration totaling 2622 pages.

6 Mr. Levandowski’s motion to dismiss was initially due by April 26. However, on Friday, April 21,

the Goodwin Procter firm informed JAMS and Keker, Van Nest & Peters (counsel for Google) that it

was replacing Morrison & Foerster as counsel for Mr. Levandowski, and requested extensions on

various briefing deadlines to accommodate the substitution – including the deadline for Mr.

Levandowski’s motion to dismiss. The other Respondent filed a motion to dismiss some of the

asserted claims on April 26.

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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

award to which the applicant may be entitled may be rendered ineffectual without provisional

relief.”) with Cal. Civ. Proc. Code § 526(a)(3) (“An injunction may be granted . . . [w]hen it appears,

during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring

or suffering to be done, some act in violation of the rights of another party to the action respecting the

subject of the action, and tending to render the judgment ineffectual.”) (emphases added). Under

Section 1281.8, the trial court has authority to grant provisional relief “where the party seeking the

relief establishes, as a component of a showing that he or she will be irreparably harmed without the

injunction, that the injunction is necessary to preserve the status quo and render arbitration

meaningful.” Davenport v. Blue Cross of California, 52 Cal. App. 4th 435, 452 (1997). California

courts similarly grant injunctions under Section 526(a)(3) “to preserve the status quo pending a

determination on the merits of the claim.” Dodge, Warren & Peters Ins. Servs., Inc. v. Riley, 105 Cal.

App. 4th 1414, 1418 (2003); see also Jay Bharat Developers, Inc. v. Minidis, 167 Cal. App. 4th 437,

446, (2008) (“In deciding whether to issue an injunction pursuant to section 1281.8, the trial court

must weigh the same factors it considers in proceedings under section 526: (1) likelihood of success

on the merits, and (2) whether the moving party will suffer irreparable harm in the interim if the

injunction is not issued. . . . Interim injunctive relief under section 1281.8, therefore, is appropriate

only if the applicant has no adequate alternative remedy, and will suffer irreparable harm if the

injunction is denied.”) (internal quotation marks and citations omitted).7

Therefore, for the same reasons that Waymo is entitled to a preliminary injunction (Dkt. 24

and 254), Waymo is entitled to provisional relief from this Court under Section 1281.8. An injunction

is necessary to prevent any further use or disclosure of Waymo’s trade secrets pending the merits

hearing on Waymo’s claims.

7 Similarly, the Ninth Circuit in considering the arbitrability of claims under the FAA has found that

“a district court may issue interim injunctive relief on arbitrable claims if interim relief is necessary to

preserve the status quo and the meaningfulness of the arbitration process – provided, of course, that

the requirements for granting injunctive relief are otherwise satisfied.” Toyo Tire, 609 F.3d at 981.

“The fact that a dispute is arbitrable and that the court so orders under Section 4 of the Arbitration

Act, 9 U.S.C. § 4, does not strip it of authority to grant [provisional relief] pending the outcome of the

arbitration so long as the criteria for such [relief] are met.” PMS Distrib. Co. v. Huber & Suhner,

A.G., 863 F.2d 639, 642 (9th Cir. 1988).

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WAYMO’S BRIEF IN RESPONSE TO COURT’S QUESTIONS FOLLOWING APRIL 27 HEARING ON MOTION TO COMPEL

DATED: May 1, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for Plaintiff Waymo LLC

Case 3:17-cv-00939-WHA Document 319 Filed 05/01/17 Page 7 of 7