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 01980-00104/9636319.6 WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

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’s PRÉCIS 

IN SUPPORT OF REQUEST TO FILE 

MOTION FOR AN ADVERSE 

INFERENCE JURY INSTRUCTION ON 

ACCOUNT OF DEFENDANTS’ 

SPOLIATION 

Date: TBD 

Time: TBD 

Ctrm: 8, 19th Floor 

Judge: Honorable William H. Alsup 

Trial Date: December 4, 2017 
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 01980-00104/9636319.6 WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

Plaintiff Waymo LLC (“Waymo”) submits this précis requesting permission to file a motion 

for an adverse inference jury instruction based on the intentional spoliation of evidence by 

Defendants Uber, Ottomotto, and Otto Trucking. The record in this case demonstrates numerous 

instances of Defendants’ intentional and bad faith deleting of files and communications relating to 

Waymo’s claims for trade secret misappropriation. As admitted by Defendants themselves, this 

destruction was done at a time when litigation was reasonably foreseeable. Courts have given 

adverse inference jury instructions in similar circumstances. 

“Spoliation occurs when one destroys or materially alters evidence or fails to preserve 

property for another’s use as evidence in pending or reasonably foreseeable litigation.” Hynix 

Semiconductor Inc. v. Rambus, Inc., 897 F. Supp. 2d 939, 975 (N.D. Cal. 2012). “When litigation 

is `reasonably foreseeable’ is a flexible fact-specific standard that allows a district court to exercise 

the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry.” 

Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1326 (Fed. Cir. 2011). “[A] trial court... has the 

broad discretionary power to permit a jury to draw an adverse inference from the destruction or 

spoliation against the party or witness responsible for that behavior.” Glover v. BIC Corp., 6 F.3d 

1318, 1329 (9th Cir. 1993). The appropriate remedy for the spoliation of relevant evidence is an 

adverse inference jury instruction. See, e.g., Cyntegra, Inc. v. IDEXX Labs, Inc., 322 Fed. Appx. 

569, 572 (9th Cir. 2009) (district court did not abuse discretion in imposing adverse jury instruction

for spoliation where party suffered prejudice by being deprived of relevant and non-cumulative 

evidence to support its case). This remedy is appropriate where (1) the party having control over 

the evidence had an obligation to preserve it at the time it was destroyed, (2) the records were 

destroyed with a culpable state of mind, and (3) the evidence was relevant to the party’s claim or 

defense such that a reasonable trier of fact could find that it would support that claim or defense. 

Hynix Semiconductor, 897 F. Supp. 2d at 989-90. 
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01980-00104/9636319.6

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WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

All three elements are met here. Each Defendant had an obligation to preserve evidence by 

no later than January 2016. Defendants intentionally destroyed evidence after that date in bad faith. 

And the destroyed evidence was highly relevant to Waymo’s trade secret misappropriation claims. 

Defendants’ wide-ranging spoliation warrants an adverse inference instruction. 

I. DEFENDANTS HAVE REPEATEDLY REPRESENTED THAT THEY 

ANTICIPATED LITIGATION AS FAR BACK AS JANUARY 2016 

Defendants had a duty to preserve evidence by no later than January 2016. As Judge Corley 

recognized, “Uber has told me, since January 2016, they thought this litigation would be coming so 

everybody knew this litigation would be coming, and sure enough, here it is.” (Dkt. 1414 [8/28/2017 

Hearing Tr.] at 82:4-6.) Defendants have taken this position repeatedly. (See, e.g., Dkt 378 [Suhr 

Decl.], ¶ 2 (“In late January 2016, Uber contacted Morrison & Foerster (‘Mofo’) seeking to retain 

MoFo ... Uber retained MoFo for the purpose of obtaining legal advice regarding potential litigation 

exposure arising out of the transaction, including and in particular, claims that could potentially be

brought by Google”); 4/10/2017 Uber Privilege Log at Entry Nos. 2055-2060 (withholding 

communications from January 2016 because they were made “in anticipation of litigation”).) 

As courts in this district have recognized, litigation may be reasonably foreseeable when certain 

claims are specifically contemplated by the parties. See, e.g., ILWU-PMA Welfare Plan Board Of 

Trustees v. Connecticut General Life Insurance Company, No. C 15-02965 (N.D. Cal. January 24, 2017). 

Here, there can be no doubt that Defendants reasonably foresaw by January 2016 not only litigation 

generally, but trade secret misappropriation claims from Waymo specifically. 

II. DEFENDANTS SPOLIATED EVIDENCE IN BAD FAITH 

A party acts in bad faith when it can be shown that the spoliating party “intended to impair the 

ability of the potential defendant to defend itself.” Micron, 645 F.3d at 1326 (quoting Schmid v. 

Milwaukee Elec. Tool Corp., 13 F.3d 76, 80 (3d Cir. 1994)). “The fundamental element of bad faith 

spoliation is advantage-seeking behavior by the party with superior access to information necessary for 
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01980-00104/9636319.6

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WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

the proper administration of justice.” Id. That fundamental element is present in Defendants’ spoliation 

here. Set forth below are just a few examples of Defendants’ intentional destruction of evidence. If

permitted to file the requested motion, Plaintiff will identify additional acts of spoliation. 

First, former Uber CEO Travis Kalanick destroyed evidence. Until just weeks before his 

deposition, Kalanick had his iPhone on a setting wherein all text messages would automatically 

delete from the phone after 30 days. (7/27/2017 Kalanick Dep. Tr., at 160:9-161:3.) This led to the 

destruction of at least 100 text messages between Kalanick and Levandowski. According to the 

Stroz Report, Kalanick exchanged over 200 text messages with Levandowski prior to March 22, 

2016 (Dkt. 1928-24 [Stroz Report] at 9) – but Defendants have produced fewer than 40 of these. 

Moreover, Nina Qi, a member of Uber’s Business Development Group, testified that she deleted all 

text messages of conversations with Levandowski “which related to the acquisition of Otto,” and 

that she did so at Levandowski’s request. (6/22/2017 Qi Dep. Tr., 61:17-63:5; 178:22-23.) 

Second, Levandowski claims (without any verification) that he intentionally destroyed 

evidence in March of 2016 - when he was running Defendants Ottomotto and Otto Trucking – and 

did so at defendant Uber’s direction. In an interview with Stroz, Levandowski stated that he 

discovered “Google proprietary information” on five disks in his Drobo 5D, and informed Uber of 

this fact in mid-March 2016. (Dkt. 1928-24 [Stroz Report] at 10.) In response, “[Cameron] 

Poetzscher instructed Levandowski not to destroy the disks and to preserve them for record keeping 

purposes.” (Id.) Kalanick, however, 

 (Stroz Report, Ex. 5 at 15.) The exhibit to the Stroz 

Report recites that 

 (Id.) If Levandowski’s 
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01980-00104/9636319.6

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WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

statements are to be believed, Uber told him to destroy evidence of misappropriated Waymo 

information despite anticipating litigation with Waymo about trade secret misappropriation. And in 

any event, it has not been produced to Waymo. C.f., Compass Bank v. Morris Cerullo World 

Evangelism, 104 F. Supp. 3d 1040, 1056 (S.D. Cal. 2015) (finding that where party willfully failed 

to produce recording it “has effectively lost or destroyed relevant evidence.”). 

Third, Defendants Ottomotto and Otto Trucking intentionally destroyed communications 

relating to the destruction of files. For instance, there are numerous accounts of text messages and 

chats instructing that files be deleted, such as a March 1, 2016 text from Levandowski to an unknown 

recipient stating, (Stroz Report, Ex. 31), and a March 9, 2016 

deleted message from Levandowski to Ron instructing him to “Make sure you delete all the 

messages tonight on both your PC and iPhone.” (Dkt. 1928-24 [Stroz Report] at 20). The Stroz 

Report also found that Lior Ron’s MacBook Laptop, iPad, and iCloud Backup contained deleted 

communications with Levandowski “regarding wiping and deleting data.” (Id. at 19.) So not only 

was information about downloaded Google files (such as on the Drobo 5D) hidden or destroyed, but 

Defendants deliberately tried to hide that fact. 

Fourth, Defendants have deliberately failed to preserve evidence even after the filing of the 

complaint. Goodwin Procter, counsel for Otto Trucking (and also Levandowski) obtained from 

Levandowski in April and/or May of this year two of his personal laptops, and searched them at 

defendant Uber’s direction for this case. (See, e.g., Dkt. 2108-3 [10/17/2017 A. Gonzalez 

Declaration] at 1.) Yet, Defendants did not preserve those laptops so they can be produced to 

Waymo. Goodwin Procter claims it no longer has them, and all Defendants disclaim any knowledge 

of where they are or how evidence on them could be made available to Waymo. It is bad faith to 

search the laptops for Defendants’ own benefit, but fail to preserve and produce them to Waymo. 
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01980-00104/9636319.6

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WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

III. THE EVIDENCE DESTROYED WAS RELEVANT TO WAYMO’S CLAIMS 

“In the Ninth Circuit, spoliation of evidence raises a presumption that the destroyed evidence 

goes to the merits of the case, and further, that such evidence was adverse to the party that destroyed 

it.” Apple, 888 F. Supp. 2d at 993 (internal citation omitted). This is true here. The record is replete 

with examples showing the evidence destroyed was relevant. For instance, Levandowski admitted 

that the 5 disks he purportedly destroyed contained specifically 

 Stroz Report, Ex. 5 (UBER00312523). Similarly, Lior Ron deleted a document titled 

“Chauffeur win plan.docx” shortly before his Stroz interview. Stroz Report (UBER00312469). 

Numerous messages were deleted by employees involved in the Ottomotto acquisition in the time 

period during which an investigation was conducted to determine if Google proprietary information 

was taken. For example, the Stroz Report identified three deleted chat messages between 

Levandowski and Rhian Morgan, Ottomotto’s head of human resources, between February 26 and 

March 1, 2016, relating to the Shred Works facility (where Levandowski claimed to have gone to 

destroy the five discs), “and/or the destruction of ‘stuff.’” Id. at UBER00312461. 

IV. DEFENDANTS’ SPOLIATION REQUIRES AN ADVERSE INFERENCE 

The appropriate remedy in this case of bad faith spoliation of relevant evidence is an adverse 

inference jury instruction. Waymo asks that it be permitted to submit language for a proposed 

instruction. In re Napster, 462 F.Supp.2d 1060, 1078 (N.D. Cal. 2006) (imposing adverse inference 

instruction). At a minimum, the adverse inference should be directed to the existence of the 

aforementioned files, as well as communications regarding Defendants’ destruction of those 

materials, and their presumed relevance to Waymo’s trade secret misappropriation claims. 

Accordingly, Waymo requests that this Court grant it permission to file a motion for an 

adverse inference jury instruction. 
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01980-00104/9636319.6

-6- 

WAYMO’S PRECIS RE: DEFENDANTS’ SPOLIATION 

DATED: October 23, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP 

 By : /s/ Melissa Baily_____________________________

 Melissa Baily 

 Attorneys for WAYMO LLC