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MICHAEL A. JACOBS (CA SBN 111664)

MJacobs@mofo.com 

ARTURO J. GONZÁLEZ (CA SBN 121490) 

AGonzalez@mofo.com 

MORRISON & FOERSTER LLP

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

Facsimile: 415.268.7522 

KAREN L. DUNN (Pro Hac Vice) 

kdunn@bsfllp.com 

HAMISH P.M. HUME (Pro Hac Vice) 

hhume@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

1401 New York Avenue, N.W. 

Washington DC 20005 

Telephone: 202.237.2727 

Facsimile: 202.237.6131 

WILLIAM CARMODY (Pro Hac Vice) 

bcarmody@susmangodfrey.com 

SHAWN RABIN (Pro Hac Vice) 

srabin@SusmanGodfrey.com 

SUSMAN GODFREY LLP 

1301 Avenue of the Americas, 32nd Floor 

New York, NY 10019-6023 

Telephone: 212.336.8330 

Facsimile: 202.336.8340 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. 

and OTTOMOTTO LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

WAYMO LLC, 

Plaintiff, 

v. 

UBER TECHNOLOGIES, INC., 

OTTOMOTTO LLC; OTTO TRUCKING LLC, 

Defendants. 

Case No. 3:17-cv-00939-WHA

DECLARATION OF ARTURO J. 

GONZÁLEZ IN RESPONSE TO 

DECLARATION OF 

JEFF NARDINELLI 

Judge: Honorable William Alsup 

Trial Date: October 10, 2017 

 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

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I, Arturo J. González, declare as follows: 

1. I am a partner with the law firm of Morrison & Foerster LLP, counsel of record for 

Defendants Uber Technologies, Inc. and Ottomotto LLC (collectively “Uber”) in this action. I 

am a member in good standing of the Bar of the State of California. I make this declaration in 

response to this Court’s Order Requiring Response Declarations. (Dkt. 1601.) I have personal 

knowledge of the facts contained in this declaration and, if called as a witness, could and would 

testify competently thereto. 

2. Response to Waymo Paragraph 2 “On July 17, 2017, Waymo filed a motion in 

limine to preclude any argument, testimony, or evidence about Defendants’ efforts taken in 

response to the Court’s Preliminary Injunction Order, including to preclude any reference to the 

questionnaires and witness interviews Defendants did during the litigation. (Dkt. 913.) ” Agreed. 

3. Response to Waymo Paragraph 3 “On July 26, 2017, the Court heard argument on 

the motion. (Dkt. 1050.)” Agreed. 

a. “Counsel for Waymo argued that if the Court allowed Uber to offer 

evidence that it had searched its servers for the 14,000 files during 

discovery, Waymo should be permitted to explain what Uber didn’t do 

during discovery. (Id. at 61-6.2.)” Uber disagrees with this 

characterization. The issue at the hearing was whether Waymo would be 

able to introduce evidence to counter Uber’s evidence regarding searching 

for the 14,000 files—not general evidence of unrelated discovery 

misconduct. (E.g. 7/26/17 Hr’g. Tr. at 61:8-17.) 

b. “The Court ruled that Uber may present the three examples of “good 

citizenship” outlined in Uber’s opposition to Waymo’s motion (Dkt. 978 at 

2): (i) searching Uber’s servers for the downloaded files; (ii) asking 

Levandowski to return downloaded materials and firing him when he did 

not; (iii) allowing Waymo and its attorneys to inspect Uber’s premises. 

(Dkt. 1050 at 72.)” The three listed examples paraphrase what Uber 

discussed in its opposition to Waymo’s motion in limine #4 and miss some 

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parts of the request, but generally are correct. For example, Uber’s 

forensic expert will testify about his extensive search of Uber’s servers and 

computers and cloud-based repositories using search terms that included 

suggestions from Waymo. (Dkt. 978 at 2.) As another example, Uber plans 

to show not only that it “allow[ed] Waymo and its attorneys to inspect 

Uber’s premises,” but also that Waymo, its attorneys, and its experts spent 

dozens of hours on 12 occasions inspecting Uber’s premises in San 

Francisco and Pittsburgh, engineering repositories, source code, emails, 

and custodian computers. To the extent that these are just paraphrases and 

are not meant to be exact, Uber does not dispute this statement.

c. “The Court invited Waymo to present two dozen examples of 

Defendants’ discovery misconduct “to balance the picture.” (Id. at 70-72.)” 

Uber believes this quote is misleading. What the Court said was: 

So all I can promise you is I've got to be as fair as I can in letting 

both of you put this basic story in front of the jury. You want to 

show stonewalling, and Arturo Gonzalez wants to show that they 

did a diligent search and nothing could be found that shows 

infringement. All right. So you need to do that. I'm going to say 

August 24th you've got to give us a list of the two dozen acts that 

you want to put forward before the jury so that we can vet that 

before -- before we get to the trial. 

(7/26/17 Hr’g Tr. at 72:6-14.) 

4. Response to Waymo’s Paragraph 4 “Waymo submitted its list of 23 items on 

August 25. (Dkt. 1356.)” Agreed. 

a. “The Court has not yet ruled on Waymo’s request to present evidence to 

“balance the picture” in light of the Court’s directive permitting Uber to 

rely on its post-complaint discovery and other conduct.” Uber agrees that 

the Court has not yet ruled on Waymo’s request. 

b. Response to Waymo’s Paragraph 4 “Waymo renews its request that, if 

Uber is permitted to rely on post-complaint Uber conduct it believes 

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supports its case, then in fairness Waymo must be permitted to counter that 

with post-complaint evidence that shows obfuscation and improper 

withholding of important information.” Uber agrees that this is Waymo’s 

request, but disagrees that the request is proper. Any counter should be 

limited to the search for the 14,000 files, not unrelated alleged discovery 

misconduct.

5. Response to Waymo’s Paragraph 5 “The Court did not ask for a response from 

Uber or a counter-list of alleged misconduct in response to the Court’s requested list from 

Waymo.” Uber does not dispute this. Uber filed a narrow response to inaccurate and misleading 

accusations of serious misconduct. Uber provided evidence of Waymo's misconduct in response 

to Waymo's unsolicited proffer of alleged misconduct unrelated to the search for the 14,000 files. 

Uber does not believe that any instruction on discovery “misconduct” is appropriate, but if the 

Court is inclined to grant such an instruction, it must be applied both ways.

a. “That likely is because the issue before the Court concerned what postcomplaint evidence Waymo was permitted to use to “balance the picture,” 

given Uber’s intent to rely on post-complaint conduct before the jury.” 

This is argument. 

b. “Nevertheless, on September 12, Uber unilaterally filed a “response” in 

which it self-helped itself to making additional arguments on the merits 

concerning trade secret “value” and accusations of “stonewalling and 

gamesmanship” in discovery. (Dkt. 1534 at 1:23 to 2:13.)” Uber 

responded to Waymo’s misleading accusations and, as noted above, 

believes that is the Court is inclined to instruct the jury on discovery 

misconduct, any such instruction must apply to Waymo as well. 

6. Response to Waymo’s Paragraph 6 “Initially, Uber’s counter-allegations 

concerning discovery and the trade secret merits are irrelevant to Waymo’s motion in limine and 

the requested list of Uber misconduct.” Uber’s counter-allegations are relevant to Waymo’s 

“requested list of Uber misconduct,” because they respond to Waymo’s allegations. 

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the investigations at issue as in fairness such communications should be 

disclosed.” (Dkt. 1272 at 2.) As such, Uber disagrees that the 

investigation was protected as privileged and work product. Uber also 

does not know if “all such” investigations at Google or Waymo were 

conducted at the direction of legal counsel and therefore protected as 

privileged and work product. 

b. “Waymo, in good faith, made the strategic decision to waive work product 

with respect to the factual information disclosed by Mr. Brown in his 

declaration as part of its preliminary injunction motion.” Uber agrees that 

Waymo waived work product privilege with respect to the factual 

information disclosed by Mr. Brown in his declaration as part of its 

preliminary injunction motion. Uber denies that Waymo made this 

decision “in good faith.” Instead, Uber believes this decision was made in 

an attempt to mislead Uber and the Court by hiding the strong reservations 

that Waymo’s engineer expressed about how the Waymo lawyers were 

characterizing the downloading of the 14,000 files. Waymo opposed a 

motion to compel communications regarding Waymo’s forensic 

investigation of Messrs. Levandowski, Raduta, and Kshirsagar. (See Dkt. 

1227.) Magistrate Judge Corley ultimately determined that Waymo’s 

attempt at “line drawing in Rule 502” would allow it to use its selective 

waiver of privilege as a shield and a sword. (See Dkt. 1272 at 2.) 

c. “Waymo took the position, however, that it had not waived the attorneyclient privilege covering Mr. Brown’s direct communications with counsel, 

or work product associated with other aspects of the investigation not 

disclosed in the Brown Declaration, such as the investigation into 

individuals other than Levandowski, Raduta and Kshirsagar.” Agreed.

10. Response to Waymo Paragraph 10 “Defendants were on notice of Waymo’s 

position concerning waiver as early as March 23 when counsel for Waymo served a privilege log 

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identifying numerous communications between Mr. Brown and outside counsel. Uber agrees that 

Waymo served a privilege log on March 23 that identified a number of communications between 

Gary Brown and others, including outside counsel. However, the first deposition of Mr. Brown 

was limited to the declaration he filed in support of his summary judgment motion. Waymo did 

not disclose the full extent of its claim of privilege until Mr. Brown was deposed a second time in 

August. And at no point prior to the close of discovery did Waymo disclose the emails written by 

Sasha Zbrozek to Waymo’s legal counsel expressing strong reservations about how Waymo was 

characterizing the alleged downloading of the 14,000 files.

a. “Counsel for Waymo and Defendants also discussed the waiver issue the 

next day (March 24) during Mr. Brown’s deposition after counsel for 

Waymo instructed him not to answer several questions that he deemed 

outside the scope of the waiver on the basis of attorney-client privilege and 

work product. Counsel for Waymo explained their position again on an 

April 10 meet and confer and subsequent April 10 and April 12 emails. For 

example, the April 10 email states: 

Per and consistent with our discussion this morning, I have 

attached notes from Mr. Brown as Uber has requested. The 

production of the notes concerns and is limited to the disclosures in 

his declaration regarding the investigations addressed therein. This 

production is without waiver of and without prejudice to any other 

work product protection/privilege. To the extent his notes reflect 

any other investigation beyond the scope of his declaration, that 

material has been redacted/withheld as work product. (Ex. 1, April 

10 email.) 

Uber agrees that it conferred with Waymo about certain documents that were 

referenced in Mr. Brown’s initial deposition and that Waymo’s counsel sent this 

April 10 email. 

11. “Despite being on notice of Waymo’s position with respect to its limited waiver as 

early as March 23, Defendants did not challenge the scope of Waymo’s waiver claim until filing a 

motion to compel on August 11. (Dkt. 1163.)” Uber disagrees that it was on notice as early as 

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March 23 about the scope of Waymo’s claim of privilege, but agrees that Otto Trucking 

submitted a letter brief to compel discovery from Waymo regarding its forensic investigation of 

Messrs. Levandowski, Raduta, and Kshirsagar on August 11. (Dkt. 1163.) 

a. “Waymo opposed the motion, and Judge Corley granted and denied it in 

part. (Dkt. 1272).” Agreed. 

b. “Specifically, in her August 18 Order, Judge Corley ruled that ‘Otto 

Trucking has not made any showing as to why communications regarding 

investigations of other employees have been waived and thus the motion is 

denied to the extent it seeks such relief.’ (Id.)” Agreed. 

c. Judge Corley also held however that ‘[w]hile the waiver of work product 

does not necessarily waive attorney-client privileged communications, here 

the waiver of work product over the investigation did waive the attorneyclient privilege as to counsel communications with Mr. Brown and anyone 

else involved in the investigations at issue as in fairness such 

communications should be disclosed.’ (Id. at 2.)” Agreed. 

d. “On this basis, Judge Corley ordered Waymo to produce ‘communications 

regarding the investigation of the Former Employees [Levandowski, 

Raduta and Kshirsagar].’ (Id.)” Agreed. 

12. Response to Waymo Paragraph 12 “Waymo did not seek relief from Judge 

Corley’s order.” Agreed. 

a. “Instead, Waymo collected the documents referenced by Judge Corley in 

her Order and produced them on August 24.” Uber agrees that Waymo 

produced the documents referenced by Judge Corley on August 24, the last 

day of fact discovery. 

b. “On that day, Waymo also produced unredacted versions of previously 

redacted documents in compliance with Judge Corley’s Order.” Uber 

agrees that Waymo produced certain unredacted versions of previously 

redacted documents, but disagrees that this was done in compliance with 

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Judge Corley’s order. Waymo produced about eighty documents, twentynine of which were heavily redacted. This necessitated a hearing in which 

Judge Corley ordered Waymo to make modifications to all twenty-nine 

heavily redacted documents. (8/31/17 Hr’g Tr.) 

13. Response to Waymo Paragraph 13 “On August 28, Judge Corley conducted a 

hearing at which several outstanding discovery issues were discussed, including the exact scope 

of the waiver intended by Judge Corley in her August 18 Order.” Agreed. 

a. “During the hearing, Judge Corley explained that the waiver only covered 

communications between counsel and the Waymo forensics team about the 

investigation of Levandowski, Raduta and Kshirsagar, not communications 

concerning other aspects of the broader investigation or internal work 

product that never even involved the forensics team. (Dkt. 1414, August 28 

Hr’g Tr. at 6-11.)” Uber disagrees with Waymo’s characterization of 

Judge Corley’s explanation of the waiver. Judge Corley specifically noted 

that Waymo could not selectively apply redactions in such a way to “slice 

and dice” parts of the investigation that were inextricably entwined with 

the forensic investigation, stating: 

So your slicing has to weigh in favor of disclosure rather than 

nondisclosure. It wouldn’t necessarily be a waiver of anything else. In 

other words, you may have to disclose some things relevant to the 

investigation of the other employees to the extent it was wrapped up 

within the investigation of the former employees. 

(Dkt. 1414, 8/28 Hr’g Tr. at 12:23-13:11.) Judge Corley noted that 

Waymo’s “waiver needs to encompass all the communications to 

Mr. Brown” and that Waymo should “err on the side of disclosure.” (Id. at 

15:3-9.) 

b. “Counsel for Waymo explained that Judge Corley’s description of the 

scope of the waiver was exactly how Waymo had interpreted the Court’s 

August 18 Order vis a vis its collection and production of documents on 

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August 24. (Id. at 10-11.)” Uber agrees that counsel for Waymo asserted 

that Waymo had interpreted the Court’s August 18 Order (Dkt. 1267) in 

accordance with Judge Corley’s description of the scope of the waiver, but 

disagrees that Waymo in fact interpreted the Order correctly. Judge Corley 

later ordered production of items from Waymo’s privilege logs, at least 

suggesting that Waymo had not interpreted Judge Corley’s August 18 

Order correctly. (E.g., 8/31/17 Hr’g Tr. at 36:13-37:22.) 

14. “During the August 28 hearing, counsel for Defendants stated that they believed 

Waymo was still withholding and/or redacting certain documents falling within the scope of the 

waiver as articulated by Judge Corley.” Agreed. 

a. “In response, Judge Corley generously offered to review the disputed 

documents in camera, rather than waste time on motion practice, if the 

parties were not able to resolve the remaining issues during subsequent 

meet and confers. (Id. at 16 (‘And what we could do, because I know we’re 

on a tight timeline here, is rather than briefing, we could just set a hearing 

and you can bring the documents here and we can sit here and talk about 

them and do it in realtime that way.’).)” Agreed. 

15. “Over the next two days, counsel for the parties conducted several meet and 

confers with the Special Master but could not resolve the outstanding issues.” Uber agrees that on 

August 30 and August 31, counsel for the parties conducted several meet and confers but could 

not resolve the outstanding issues. On the meet and confer on August 30, Defendants requested a 

conference call with Judge Corley and to take up the Court’s offer of an in camera review. 

Counsel for Waymo, Jim Baker, opposed contacting the Court, saying he wanted the subject to 

instead be briefed. 

a. “On August 30, Judge Corley held a short teleconference and ordered 

Waymo to bring the documents to Court the next day for an in camera 

inspection.” Uber agrees that Judge Corley held a short teleconference on 

August 30 in which she made this order. Uber notes that Judge Corley 

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further ordered Waymo to produce that same day the 29 documents that 

were heavily redacted by Waymo with lesser redactions to allow 

Defendants time to review in preparation for the hearing the next day. 

(8/30/17 Hr’g Tr. at 11:10-19.) 

16. Response to Waymo Paragraph 16 “On August 31, counsel for Waymo brought the 

documents in question to Court, and Judge Corley and counsel for the parties meticulously 

reviewed every disputed document and redaction to determine what fell within or outside the 

scope of the waiver.” Agreed. 

a. “Judge Corley ruled on every document, and for those that needed to be 

produced or unredacted ordered Waymo to do so by Saturday, 

September 2.” Uber agrees that Judge Corley ruled on every document and 

ordered Waymo to produce documents by Saturday, September 2. Of the 

29 heavily redacted documents ruled on, 27 were ordered to be produced 

without redactions and Waymo was ordered to unredacted portions of the 

remaining two documents by September 2. (8/31/17 Hr’g Tr.) 

b. “Further, during the August 31 hearing, the Court repeatedly made clear 

that Waymo’s position was reasonable: ‘I’m not faulting you, at all.’ 

(Dkt. 1441, August 31 Hr’g Tr. at 40:16-17.)” Uber agrees that the Court 

made this statement, but the Court ordered modifications as to every one of 

the 29 documents that Waymo had initially redacted. 

c. “The Court stated that ‘I don’t fault you at all for the line that we’re 

drawing,’ recognizing that ‘it’s just very hard to do’ and that Waymo was 

not ‘trying to hide super-material information.’” Agreed. 

17. Response to Waymo Paragraph 17 “Pursuant to Judge Corley’s order at the 

August 31 hearing, Waymo produced the documents in question on September 2.” Agreed. 

a. “In addition, Waymo made three witnesses from the forensics team 

(Gary Brown, Kristin Gudjonsson and Sasha Zbrozek) available for a 

second round of depositions on September 6 and 8.” Agreed, upon strong 

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times in relation to this issue. It is a month after the Court’s August 18 

Order, and it is unclear whether Waymo has completed its production of 

documents relating to the investigation even based on its narrow 

interpretation of its subject matter waiver over the investigation. (See e.g. 

Ex. 2, which is a true and correct copy of a September 11 email from 

Waymo counsel to Uber counsel (“We are reviewing a final set of 

responsive documents and will produce them as soon as we are ready.”).) 

d. “As noted by Judge Corley at the August 28 hearing, the only reason for 

any delay concerning the scope of the waiver was because Defendants 

waited until August 11 to bring their motion. (Dkt. 1414, August 28 Hr’g Tr. 

at 13-14 (“the reason we are [at the close of discovery] is because you 

[counsel for Otto Trucking] didn’t bring this motion to my attention until 

later, so that I don’t want to hear.”).) Uber agrees that Judge Corley made 

this statement at the August 28 hearing, but disagrees that Defendants are 

the cause of the delay. As noted by Mr. Chatterjee at the hearing, Otto 

Trucking filed its motion regarding the scope of the privilege waiver on 

August 11—three days after deposing Mr. Brown on August 8. It was at 

Mr. Brown’s deposition that Waymo asserted privilege over attorney-client 

discussions with Mr. Brown regarding the scope of the forensic 

investigation. Upon hearing this fact, Judge Corley responded “Okay. All 

right.” 

e. “On this record, Defendants should not be heard to accuse Waymo or its 

counsel of “stonewalling” or gamesmanship.” Uber disagrees for reasons 

including those outlined in its September 12 response brief and in this 

document. (Dkt. 1534.) 

19. Response to Waymo Paragraph 19 “Did not reach his conclusion independently.” 

(1:26-2:1.) Uber’s charge that Waymo forensics investigator Gary Brown ‘did not reach his 

conclusion independently,’ but rather ‘concluded that Mr. Levandowski did not improperly 

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21. Response to Waymo Paragraph 21 “‘Waymo withheld information...” (2:1-4.) I 

understand this passage to be a reiteration of Uber’s prior charges concerning Waymo’s waiver 

of privilege, which I have addressed above.” Agreed. 

a. “For example, the scope of the investigation, communications with 

attorneys, and keywords provided by attorneys relating to the search were 

all subject to good-faith privilege claims and have since been produced.” 

As discussed above in response to Waymo paragraph 9, Uber disagrees that 

Waymo’s selective waiver of privilege was done on a “good-faith” basis. 

Rather, Uber believes that Waymo was attempting to use privilege as a 

sword and a shield and to hide the reservations expressed by Mr. Zbrozek..

b. “By “information the employee was told to ignore” I gather Uber is 

repeating its false charge that Gary Brown analyzed data in March but was 

told to ignore that analysis.” As discussed above in relation to Waymo 

paragraphs 19 and 20, Uber disagrees that this charge is false. 

22. Response to Waymo Paragraph 22 “‘Only after it was compelled to do so...’ (2:4-

10.) I understand this passage to again rehash Uber’s charge concerning Waymo’s waiver of 

privilege, but the passage also contains two substantive allegations that I now address.” Uber 

cannot comment on Mr. Nardinelli’s understanding of Uber’s brief. 

23. Response to Waymo Paragraph 23 “‘Emails that confirm that the 14,000 files are 

not valuable trade secrets.’ Uber points to an email from Sasha Zbrozek that refers to the content 

of the SVN as ‘low-value.’” Agreed. 

a. “Waymo did not ‘withhold’ this email, but timely produced it on August 24 

after Otto Trucking moved to compel privileged documents, and after the 

Court ordered its production, along with other documents that were the 

subject of the Court’s order.” Uber disagrees that Waymo “timely 

produced” this document on August 24. Waymo produced a heavily 

redacted version of this document, and the Court ordered Waymo to 

remove the redactions. (8/31/17 Hr’g Tr. at 36:11-37:7.) A fully 

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unredacted copy was not produced by Waymo until September 2. 

b. “Further, one person’s out-of-context email excerpt does not itself 

‘confirm’ that all of Waymo’s documents and testimony proving that the 

14,000 files contain valuable trade secrets are false.” This is argument. 

And Waymo misses the point. It has argued for months and has led this 

Court and the public to believe that Anthony Levandowski selected 14,000 

highly proprietary documents to intentionally download and steal. There 

are multiple emails that cast extreme doubt on the veracity of those 

representations, including the “low value” email that Waymo now says is 

“out-of-context.” (See e.g. Dkt. 1586-2 at 86936 (“I’m a little leery 

because both of those numbers aren’t really meaningful to any narrative. It 

also has a chilling effect on being a hardware engineer – we all do full 

checkouts, and it makes me uncomfortable to think that lawyers are 

trying to ascribe suspicion to it.” (emphasis added)).) 

c. “Mr. Zbrozek has confirmed at deposition that he meant only to say that 

the 14,000 files are considered less critical to Google than Google’s topsecurity items, such as personal user data and the source code behind 

Google’s search algorithm: 

Q. And then you say “it’s pretty low value.” Do you see that? 

A. I do see that. 

Q. And that was true, wasn’t it? 

THE WITNESS: What do you mean? 

Q. Do you want me to define “true”? 

A. No. I am asking you to define “low value.” 

Q. Those are your words. 

A. So I will say that this is a very relative thing. And Google data 

policies were designed with code and user data in mind and were 

perhaps not the greatest fit for the kind of data that we wanted to 

store and that relative to instantly Google ending data breaches, 

that the data that was in the Subversion server would be considered 

of lesser value. But by how much, I don’t know; and in absolute 

terms, I have no idea. 

(Ex. 3, Zbrozek deposition at 208:18-209:11.)” 

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Uber agrees that Mr. Zbrozek made these comments at his second 

deposition after meeting with legal counsel, but disagrees that this is what 

he “meant” to say in his earlier emails. Mr. Zbrozek drafted multiple 

emails that were sent months apart in which he stated these files were of 

“low-value.” (See Dkts. 1586-1 and 1586-2.) 

24. Response to Waymo Paragraph 24 “‘Downloads of this nature are not so 

exceptional.’ Uber again points to Mr. Zbrozek’s email, which states that Mr. Levandowski’s 

download ‘[d]oesn’t ring the alarm bells for me,’ as confirmation that Levandowski’s download 

was unexceptional.” Uber agrees that this statement by Mr. Zbrozek, the engineer chosen to 

perform the task of reviewing server logs, is evidence that Mr. Levandowski’s alleged download 

is not exceptional. 

a. “The email itself contradicts Uber’s reading: it states that for 

Levandowski, such a download ‘clearly wasn’t part of his routine.’” Uber 

agrees that the email makes that statement, but disagrees that this single 

statement contradicts the rest of the statements Mr. Zbrozek made in that 

email exchange which indicate that this alleged download was 

unexceptional. 

b. “And again, Mr. Zbrozek clarified that his “alarm bells” statement took no 

account of the context of Levandowski’s actions, but meant only to say that 

a single bulk download, absent any other factors, is not suspicious:

Q. And it didn’t ring the alarm bells for you, did it?

A. I will say that, on its own, as a single action in absence of context, 

pulling the Subversion repository is not suspicious, but that as part of a 

larger narrative, you know, suspicion may or may not come into play, 

right. You know, if the logs -- if the logs showed, you know, someone 

pulling information and putting that information somewhere else and 

then leaving the company, maybe that’s suspicious. Maybe just looking 

at the log files on their own isn’t enough to tell that story. (Ex. 3, 

Zbrozek Dep. at 230:5-16.)” 

Uber agrees that Mr. Zbrozek made these statements at his deposition after a 

meeting with Waymo’s legal counsel. 

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25. Response to Waymo Paragraph 25 “In a separate email thread, Mr. Zbrozek 

stated that it “makes me uncomfortable to think that lawyers are trying to ascribe suspicion” to 

Levandowski’s bulk download.” Agreed. 

a. “Again, Mr. Zbrozek clarified at his deposition that he lacked the context 

surrounding the download, and was concerned only “about setting a 

precedent for that one action in isolation being in and of itself a marker of 

suspicion.” (Ex. 3, Zbrozek Dep. at 238:12-239:25.)” Uber agrees that 

Mr. Zbrozek made this statement at his deposition after meeting with 

Waymo’s legal counsel. 

26. Response to Waymo Paragraph 26 “Further, Levandowski’s SVN log showed that 

only once between September 2015 and January 2016 did Levandowski access the SVN, and there 

is ample testimony in this case that Levandowski did not know how to use Altium, which is the 

software required to work with files stored on the SVN.” Uber agrees that Mr. Levandowski’s 

SVN log showed that he only once accessed the SVN, but disagrees that there is “ample 

testimony” that Mr. Levandowski does not know how to use Altium. 

a. “It is true that other engineers at Waymo download files from the SVN, 

including bulk downloads.” Agreed. 

b. “That is their job.” Agreed. 

c. “That is the reason that the SVN contents are so valuable – because it is 

the confidential work product of Waymo’s engineers and the repository of

Waymo’s proprietary, industry-leading designs.” Uber disagrees as to the 

Waymo’s characterization of the value of the SVN contents. 

d. “The fact that others access the SVN for valid reasons does not mean 

Levandowski’s access was valid.” This is argument and Uber disagrees. 

Mr. Zbrozek has provided other reasons for which Mr. Levandowski may 

have accessed the SVN, including for the purpose of making an “individual 

contribution or maybe taking a look at the progress of a widget.” (See e.g. 

Dkt. 1586-1 at 86886.) 

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27. Response to Waymo Paragraph 27 “Waymo also failed to produce...” (2:10-13.) 

Uber charges that Waymo produced one third of its production on the last day of discovery.”

Agreed. 

a. “This accusation is highly misleading.” This is argument. 

b. “Much of Waymo’s August 24 production came in timely response to 34 

RFPs that were not served by Defendants until July 25.” Uber has not been 

able to assess whether or not “much” of the documents were in response to 

the RFPs served on July 25 or not. 

c. “Through one of those RFPs, Otto Trucking sought “all communications” 

between Waymo (defined as Waymo, Google, and Alphabet) and five 

outside vendors, not limited in time, subject matter, or along any other line.”

Uber agrees that the RFP sought “[a]ll communications” between Waymo 

and outside vendors, but notes that in its response, Waymo stated it would 

limit its production to "otherwise-relevant communications" with such 

vendors. 

d. “Waymo’s production in response to this RFP alone numbered nearly 

4,000 documents.” Uber has not been able to assess how many documents 

Waymo produced in response to this RFP. 

e. “The production may not have been particularly useful, and likely had 

nothing to do with any of the witnesses who had already been deposed, but 

it was exactly what Otto Trucking asked for in its broad RFP.” This is 

argument. 

28. Response to Waymo Paragraph 28 “Further, Uber’s allegation does not identify a 

single witness for whom Waymo failed to timely produce relevant documents.” Uber agrees that, 

for the purposes of brevity, it did not name a specific witness in its response to Waymo’s list of 

defendants’ alleged discovery misconduct. (Dkt. 1534.) 

a. “This is likely because Waymo took extraordinary efforts to produce 

documents prior to depositions, including hiring an offsite team of dozens 

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of reviewers specifically to review documents in order to produce them in 

advance of depositions.” This is argument. Uber disagrees that Waymo 

produced all documents relevant to a custodian’s deposition prior to such 

deposition. For example, Waymo produced documents at 9:54 pm on 

September 17 that included a number of custodians that had already been 

deposed, including Sergey Brin, Gary Brown, and Sasha Zbrozek. Uber 

has not yet been able to review these documents. Attached hereto as 

Exhibit 11 is a true and correct copy of an email from Waymo’s counsel to 

Uber’s counsel on Sept. 17, 2017 serving PROD065. 

b. “The result was continuous document production for several weeks leading 

up to the end of fact.” Uber agrees that Waymo has provided continuous 

document production leading up to the end of fact discovery. However, 

Waymo produced approximately 7,350 documents, roughly 33% of its total 

document production to date, on the very last day of fact discovery. A true 

and correct chart summarizing the number of documents in each of 

Waymo’s productions is attached as Exhibit 6. Uber also notes that there is 

a discrepancy with the chart produced by Mr. Nardinelli on pages 11-13 of 

his declaration. Specifically, Waymo’s PROD051 was produced on 

August 24. (Ex. 7, 8/24/17 Production transmittal letter.) 

29. Response to Waymo Paragraph 29 “Waymo also failed to include custodian 

information in thousands...” (2:12-13.) This charge is also false.” This charge is 

not false. Uber’s discovery vendor has recently provided information that indicates Waymo 

produced over 3,900 documents that did not properly identify a custodian. Additionally, attached 

as Exhibit 9 is a true and correct copy of an email from Waymo counsel to Uber counsel on 

August 29, 2017 stating that it has used “Google” as a placeholder for documents collected 

through “noncustodial means” including through manual collection. It has also claimed that to 

determine custodian information for these documents would be a “burden” and that they “cannot 

do it” for all documents in their production that list “Google” as a custodian. 

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a. “To date Waymo has produced 22,352 documents.” Uber believes that 

Waymo has produced approximately 22,572 documents. 

b. “For every one of these documents, Waymo provided Defendants with one 

or more associated custodians.” As outlined above, Uber disagrees. 

Further, our vendor reports that approximately 600 documents produced by 

Waymo fail to list any custodial information at all. 

c. “The highest-volume individual custodian is Waymo lead hardware 

engineer and 30(b)(6) witness Pierre Droz, with 3,344 documents.” 

Agreed. 

30. Response to Waymo’s Paragraph 30 “For 4,053 documents, the listed custodian is 

“Google.”” Uber’s discovery vendor provided information to Uber indicating that there are 

3,908 documents that list the custodian as “Google” and about 600 Waymo documents that have 

no custodian listed at all. 

a. “This is because many documents are not associated with an individual 

custodian, such as Google policy documents or documents maintained in 

central Google repositories rather than individual accounts.” It is difficult 

for Uber to respond to a statement that “many” documents are not 

associated with an individual custodian when Waymo is the one with the 

information about how it collected these documents, but Uber notes that 

Waymo did not identify how many of the 4,053 documents fall into that 

category. Additionally, assuming this statement is true, Waymo does not 

explain why it did not provide a proper custodian for the documents that do 

not fall into the category of being “Google policy documents or documents 

maintained in central Google repositories.” In fact, Waymo’s counsel’s 

own emails show that this assertion is inaccurate: in a request from Uber 

counsel to Waymo counsel to identify custodians for documents that only 

list “Google” as the custodian or that are blank, Waymo’s counsel did not 

respond that such information didn’t exist. Instead, she responded that such 

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information would need to be collected manually. Attached hereto as 

Exhibit 9 is a true and correct copy of an 8/29/2017 email from Waymo 

counsel to Uber counsel stating that for certain documents Waymo listed 

Google as the custodian “where the document was collected manually by 

someone not necessarily affiliated with the document itself” and that “in 

order to collect additional document metadata we would need to manually 

trace the documents to its owner.”) This e-mail suggests that Waymo’s 

statement is not completely accurate, as Waymo could have “manually 

trace(d) the documents to its owner.” 

b. “On the very infrequent occasions Defendants have asked Waymo to 

provide additional metadata, Waymo has manually examined the 

documents to provide it.” This statement is incorrect. While Waymo has 

provided some additional metadata when Uber identified documents that 

Waymo produced without the associated metadata, see, e.g., Ex. 8 (8/17 J. 

Nardinelli Email (agreeing more than two weeks after Uber’s request to 

produce metadata for eight documents that Waymo had merged into a 

single PDF and produced without the associated metadata for each 

document)), Uber requested and Waymo failed to provide metadata for 

3,807 documents that listed “Google” as a custodian, see Ex. 9 (8/29 L. 

Cooper Email (acknowledging that Waymo did not collect metadata for 

some documents when it initially collected them, but refusing to produce 

metadata “for all 3,807 documents in our production that list ‘Google’ as a 

custodian”). Rather, Waymo agreed to investigate only “a limited set of 

specific documents” and only if Uber identified them. (Id.) After Uber then 

initially identified 10 documents with “Google” as a custodian, Waymo 

told Uber that all 10 had custodial information. (See Ex. 10 (9/8 L. Cooper 

Email at 9/6 Email).) 

c. “Uber does not identify any specific deposition preparation that was 

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hindered.” Uber agrees that it did not identify specific deposition 

preparation that was hindered, but does not agree that deposition 

preparation was not hindered due to the lack of custodial information for 

many documents. 

31. Response to Waymo’s Paragraph 31 “This allegation is false.” Uber agrees that 

Waymo did produce a privilege log the day before this filing, and it filed an Errata correcting this. 

(Dkt. 1580.) 

a. “On September 7 and 8, Waymo produced four sets of documents 

responsive to the acquisitions covered by the Court’s order (volumes 60-

63).” This is incorrect. Waymo actually served volumes 61-63 on 

September 9. (Dkt. 1586 at exhibits 4 and 5 (e-mails from Waymo 

counsel).) In addition, Uber does not believe that these documents are all 

“responsive to the acquisitions.” In fact, Uber’s counsel sent an e-mail to 

Waymo’s counsel noting hundreds of documents produced in these sets 

that it believes should have been produced a long time ago, as they appear 

to relate to LiDAR and Waymo’s purported trade secrets, and e-mailed 

Waymo counsel asking about this. (Dkt. 1586 at exhibit 7 (email from 

Uber counsel to Waymo counsel inquiring about the emails).) Waymo 

counsel still has not responded to this email, despite Uber raising this lack 

of response in its declaration. (Dkt. 1586 at 4.) 

b. “Waymo served its privilege log covering those sets on September 11, the 

day before Defendants filed its brief accusing Waymo of failing to provide 

one.” Uber agrees. Uber already filed an errata acknowledging this. 

(Dkt. 1580.) 

c. “Since the original filing of that brief, Defendants have filed an “errata” 

admitting that in fact their charge was false. (Dkt. 1580.)” Uber agrees that 

it filed an errata. 

32. Response to Waymo’s Paragraph 32 “In summary, Uber’s “response” brief is 

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irrelevant to Waymo’s MIL and the list of Defendants’ post-complaint misconduct requested by 

the Court. Uber should not be allowed to transform the issue of Waymo’s MIL into a he-said-shesaid argument before the jury concerning Waymo’s discovery conduct. The proper issue before 

the court is what post-complaint conduct by Defendants Waymo is permitted to put before the jury 

to “balance the picture” in light of the Court’s ruling that Uber may rely on certain postcomplaint discovery conduct. Moreover, the accusations and merits-based arguments contained 

in Uber’s “response” brief are wholly without support.” This is argument. As a concession to 

the shortness of life, we will not respond further to this argument. 

I declare under the penalty of perjury that the foregoing is true and correct. Executed this 

18th day of September, 2017 at San Francisco, California. 

 /s/ Arturo J. González 

Arturo J. González 

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