Neel Chatterjee 

+1 650 752 3256 

NChatterjee@goodwinlaw.com 

Goodwin Procter LLP

135 Commonwealth Drive

Menlo Park, CA 94025

goodwinlaw.com

+1 650 752 3100

ACTIVE/92277895.2 

August 2, 2017

VIA ECF

The Honorable William Alsup

United States District Judge

United States District Court for the Northern District of California

Phillip Burton United States Courthouse 

450 Golden Gate Avenue 

Courtroom 8, 19th Floor 

San Francisco, CA 94102

Re: Waymo LLC v. Uber Technologies, LLC, et al., Case No. 3:17-cv-00939-WHA: Otto Trucking's

Response to Waymo's Precis Seeking Permission to File Motion for Summary Judgment 

Dear Judge Alsup,

In accordance with the Court’s August 23, 2017 Order (Dkt. 1308), Otto Trucking objects to Waymo’s 

precis seeking leave to file summary judgment as to Defendants’ affirmative defenses. First, Waymo’s precis is 

confusing as it identifies the affirmative defenses asserted by Uber/Ottomotto, but includes Otto Trucking in its 

request. To the extent that Waymo has not addressed affirmative defenses asserted by Otto Trucking, those 

affirmative defenses are not subject to Waymo’s request for summary judgment.

Second, Otto Trucking disagrees that summary judgment is warranted because Otto Trucking did not 

propound interrogatories specifically addressing its affirmative defenses. See Dkt. 1301. This argument is 

irrelevant. Indeed, Plaintiff’s cited case states that summary judgment is based on the “pleadings, depositions, 

answers to interrogatories, and admissions on file”—not just the interrogatories propounded viewed in isolation. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Otto Trucking has obtained substantial evidence supporting 

its affirmative defenses from other discovery processes besides interrogatories.

Waiver/ Estoppel

Otto Trucking has a strong waiver/estoppel defense. The evidence shows that (1) Mr. Levandowski told 

Google at the latest during his exit interview that he was considering starting a company devoted to developing 

self-driving trucks, (2) after he left Google and started that business, Mr. Levandowski remained in contact with 

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Google employees, including Waymo’s CEO Mr. Krafcik and repeatedly offered to show Mr. Krafcik the selfdriving truck he was developing, and (3) without ever accepting Mr. Levandowski’s offer, and with knowledge of

what he was developing, Google still paid him $ and delayed bringing this lawsuit.

Prior to leaving Google, Anthony Levandowski had disclosed to his superiors and others in the company 

his interest in starting an autonomous trucking business. Ex. 1. In his exit interview on the day he departed 

Anthony Levandowski had disclosed that he had started an autonomous trucking business. Ex. 2. After he left, 

Mr. Levandowski remained in contact with John Krafcik, the CEO of Chauffeur/Waymo.

g . See Ex. 3 (text 

messages between Anthony Levandowski and John Krafcik). 

Id. at WAYMO-UBER-00033606. 

While Mr. Krafcik was keeping in close contact with Mr. Levandwoski, Waymo was investigating Mr. 

Levandowski’s activities prior to his departure from Google. Indeed, shortly after Mr. Levandowski’s departure, 

See Ex. 4. Google initiated a forensic investigation of Mr. Levansowskin in February 

2016. Gary Brown, the security engineer who performed the forensic investigation of Mr. Levandowski, testified

that as early as August 2016, Google was aware that Mr. Levandwoski had downloaded the 14,000 files from 

Google’s server. See Ex. 5.

In a text message dated August 11, 2016, Mr. Levandowski again offered Mr. Krafcik a demo of his selfdriving truck. That same day, despite awareness of Mr. Levandowski’s self-driving trucking business, access to 

Mr. Levandowski’s truck, and likely knowledge of Mr. Levandowski’s alleged downloading of documents, 

Google paid Mr. Levandowski’s remaining bonus from his time on Project Chauffeur. See Ex. 6.

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These facts demonstrate Waymo’s knowledge of the alleged misconduct and its express waiver of the 

claim by Mr. Krafick’s statement that Google would be warm and supportive of Mr. Levandowski’s endeavors, 

and implied waiver based on its payment of Anthony Levandowski’s bonus after it was likely aware of the alleged 

misconduct. 

Laches and Failure to Mitigate Damages

As stated above, Waymo was aware of the alleged downloading of information that is the basis of its 

misappropriation claim as early as August 2016. And yet, it did not file any action for misappropriation of trade 

secrets of seek an injunction until the end of February 2017. This delay was unreasonable and prejudicial (laches) 

and also demonstrates Waymo’s failure to mitigate any damages it may claim it suffered. (Of course, Waymo 

still has not disclosed any viable damages claim specific to Otto Trucking, so arguing about how Waymo failed to 

mitigate its non-existent damages is difficult at this stage). 

Unclean Hands

Discovery has shown for a number of years, Waymo purchased Velodyne LiDAR systems. See Ex. 7.

. See 

Ex. 8. Thus, to the extent that any of Waymo’s purported trade secrets are also found in Velodyne LiDARs, 

Waymo may have misappropriated them from Velodyne or other third parties’ whose technology Waymo has 

purchased. 

Otto Trucking also incorporates and joins Uber/Ottomotto’s response to Waymo’s Precis. 

Respectfully submitted,

/s/ Neel Chatterjee

Neel Chatterjee

GOODWIN PROCTER LLP

Attorneys for Defendant 

Otto Trucking LLC 

cc: Counsel of Record (via ECF) 

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CERTIFICATE OF SERVICE 

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United 

States District Court for the Northern District of California by using the CM/ECF system on August 24, 

2017. I further certify that all participants in the case are registered CM/ECF users and that service of 

the redacted version of this Response, including public and redacted attachments will be accomplished 

by the CM/ECF system. 

 I certify under penalty of perjury that the foregoing is true and correct. Executed this 24th day of 

August 2017. 

 /s/ Neel Chatterjee 

 Neel Chatterjee 

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