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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

Case No. 3:17-cv-00939-WHA 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

John L. Cooper (State Bar No. 050324) 

jcooper@fbm.com 

Farella Braun + Martel LLP 

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

Telephone: (415) 954-4400 

Facsimile: (415) 954-4480 

Special Master 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

WAYMO LLC, 

Plaintiff, 

vs. 

UBER TECHNOLOGIES, INC., et al., 

Defendants. 

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

[PROPOSED] ORDER RE: 

SPECIAL MASTER’S MONITORING 

AND VERIFICATION PROTOCOL 

Pursuant to the Court’s May 11, 2017 Order (ECF No. 426), Special Master John Cooper 

submits this Proposed Order setting forth the protocol by which the Special Master will monitor 

and verify the compliance of Defendants Uber Technologies, Inc., Ottomotto, LLC, and Otto 

Trucking, LLC (collectively “Defendants”) with the Court’s May 11, 2017 Order. 

The Special Master has conferred with the parties, who have tendered proposed protocols 

and have stated their concerns and suggestions. The Special Master has taken these responses into 

consideration and tenders the following protocol for the Court’s consideration: 

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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

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

2 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

I. SPECIAL MASTER’S EX PARTE COMMUNICATIONS WITH DEFENDANTS 

Paragraph 7 of the May 11, 2017 Order (the “May 11 Order” or the “Order”) provides in 

part: 

Defendants shall keep complete and accurate records of their 

compliance with all of the foregoing requirements, including 

directives given to Anthony Levandowski and others. The special 

master shall monitor and verify said compliance. 

The Court has previously ordered that the Special Master “shall not engage in substantive 

ex parte communications with the Court or with the Parties except as ordered by the Court or as 

agreed by the parties.” ECF No. 235 at 2. 

The parties have agreed, and the Court likewise finds, that Special Master must engage in 

limited ex parte substantive communications with Defendants, including their officers and 

employees, in order to monitor and verify their compliance with the May 11 Order. Accordingly, 

it is hereby ordered that Special Master and his assistants may unilaterally interview Defendants 

and their employees and may engage with Defendants’ counsel to review and analyze Defendants’ 

efforts to comply with the Order. 

Special Master and his assistants shall have immediate and constant access to the records 

of compliance the Court has ordered Defendants to compile. If the Special Master determines that 

Defendants’ efforts to comply with the May 11 Order are inadequate in any way, he will have the 

authority to confer with all parties about his initial determinations and request immediate 

correction of any identified deficiencies. Any refusal by Defendants to bring their conduct or 

records into conformance with the Special Master’s comments shall be reported to the Court. 

As part of his discussions with the parties about Defendants’ compliance with the May 11 

Order, the Special Master will have the discretion to share with Waymo any information or 

documents that Defendants provide the Special Master pursuant to this Proposed Order and/or the 

May 11 Order. The Special Master shall not share such information or documents with Waymo 

until he first notifies Defendants of his intent to do so and allows Defendants reasonable time, not 

to exceed 24 hours, to determine whether to take any action with the Court to prevent the 

disclosure to Waymo or to make any confidentiality designations to the information under the 
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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

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

3 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

protective order applicable to this case. For the purposes of this Proposed Order, the foregoing 

shall be referred to the “Disclosure Protocol.” 

II. PROHIBITION ON THE USE OF THE “DOWNLOADED MATERIALS” AND 

THEIR RETURN TO WAYMO 

The Court has ordered Defendants to prevent Anthony Levandowksi and “all other 

officers, directors, employees, and agents of” Defendants from using the downloaded materials in 

any way (excepting their use by Defendants’ counsel and experts “in defending this civil action.” 

See ECF No. 426 at 23. The Court further ordered Defendants to require Mr. Levandowksi and 

“all other officers, directors, employees, and agents of” Defendants to return the downloaded 

materials to Waymo or the Court by noon on May 31, 2017. See id. 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the May 11 Order requires that: 

• Defendants shall immediately and continuously provide the Special Master the writings 

and communications Defendants are required to make to carry out this provision. 

• On Monday, May 22, 2017, at 2 p.m. and every 48 hours thereafter, Defendants shall 

submit to the Special Master a detailed summary of all of Defendants’ efforts to comply 

with these requirements. 

• Upon his request to Defendants, Defendants shall immediately make their facilities 

available to the Special Master as per the May 11 Order, if deemed necessary to determine 

whether Defendants have complied with the Order. 

• If the Special Master determines that he must interview any of Defendants’ employees or 

agents in order to verify Defendants’ compliance with this provision of the May 11 Order, 

Defendants shall, within 48 hours of the Special Master’s request, make the individual(s) 

available to the Special Master for an interview. 

• Subject to the Disclosure Protocol, the Special Master shall have the discretion to share 

with Plaintiff the records of compliance submitted by Defendants and the Special Master’s 

findings from any visit of Defendants’ facilities. 
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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

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

4 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

• Defendants shall immediately rectify any deficiencies the Special Master identifies in 

Defendants’ compliance with the May 11 Order. The Special Master shall report to the 

Court any refusal by Defendants to do so. 

III. REMOVAL OF ANTHONY LEVANDOWKSI FROM DEFENDANTS’ LIDARRELATED ACTIVITIES 

The Court has ordered Defendants to remove Mr. Levandowski “from any role or 

responsibility pertaining to LiDAR” and to “take all steps in their power to prevent him from 

having any communication on the subject of LiDAR with any officer, director, employee, agent, 

supplier, consultant, or customer of defendants.” See ECF No. 426 at 23. Defendants further must 

prohibit Mr. Levandowksi “from consulting, copying, or otherwise using the downloaded 

materials in any way.” Id. For simplicity’s sake, this protocol and Proposed Order refers to these 

requirements as the “Levandowski Prohibitions.” Finally, Defendants must “instruct all their 

officers, directors, employees, agents, suppliers, consultants, and customers in writing” of the 

Levandowski Prohibitions and that the “officers, directors, employees, agents, suppliers, 

consultants, and customers” must notify the Special Master or the Court immediately of any 

suspected breach of the Levandowski Prohibitions. 

The parties agree that Defendants need not notify all users of Uber’s mobile application 

and/or other individuals who have no relation to the technology at issue in this case. Pursuant to 

the agreement of the parties, the Special Master envisions that Defendants will satisfy the May 11 

Order’s requirement to notify certain groups of individuals about the Levandowski Prohibitions if 

they instruct (1) all of Defendants’ officers, directors, and employees; (2) anyone who acts in any 

way on Defendants’ behalves with respect to any LiDAR-related activities; (3) any people or 

entities who supply any products or services related in any way to the development, research, or 

use of LiDAR or self-driving automobiles; and (4) any people or entities who purchase or 

otherwise obtain from Defendants any products or services related in any way to LiDAR or selfdriving automobiles. 

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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

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

5 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the May 11 Order, construed as discussed above, requires that: 

• Defendants shall immediately and continuously provide the Special Master the 

records of compliance required by the May 11 Order. 

• Upon his request to Defendants, Defendants shall immediately make their facilities 

available to the Special Master as per the May 11 Order, if deemed necessary to 

determine whether Defendants have complied with this Order. 

• If the Special Master determines that he must interview any of Defendants’ 

employees or agents in order to verify Defendants’ compliance with this provision 

of the May 11 Order, Defendants shall, within 48 hours of the Special Master’s 

request, make the individual(s) available to the Special Master for an interview. 

• Subject to the Disclosure Protocol, the Special Master shall have the discretion to 

share with Plaintiff the records of compliance submitted by Defendants and the 

Special Master’s findings from any visit of Defendants’ facilities. 

• Defendants shall immediately rectify any deficiencies the Special Master identifies 

in Defendants’ compliance with the Order. The Special Master shall report to the 

Court any refusal by Defendants to do so. 

IV. DEFENDANTS’ DETAILED ACCOUNTING 

The Court has ordered Defendants to undertake a “thorough investigation [into] and 

provide a detailed accounting under oath” of “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.” 

ECF No. 426 at 24. The accounting, as further described in the May 11 Order, must be filed by 

noon on June 23, 2017. Id.

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the Order requires that: 

• Defendants shall continuously provide the Special Master a roster of the individuals 

Defendants have interviewed and will interview Defendants are required to make to 

carry out this provision. 
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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

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

6 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

• On Monday, May 22, 2017, at 2 p.m. and every 48 hours thereafter, Defendants 

shall submit to the Special Master a detailed summary of all Defendants’ efforts to 

comply with these requirements. 

• Upon his request to Defendants, Defendants shall immediately make their facilities 

available to the Special Master, as per the Order, if deemed necessary to determine 

whether Defendants have complied with this Order. 

• If the Special Master determines that he must interview any of Defendants’ 

employees or agents in order to verify Defendants’ compliance with this provision 

of the May 11 Order, Defendants shall, within 48 hours of the Special Master’s 

request, make the individual(s) available to the Special Master for an interview. 

• Subject to the Disclosure Protocol, the Special Master shall have the discretion to 

share with Plaintiff the records of compliance submitted by Defendants and the 

Special Master’s findings from any visit of Defendants’ facilities. 

• Defendants shall immediately rectify any deficiencies the Special Master identifies 

in Defendants’ compliance with the Order. The Special Master shall report to the 

Court any refusal by Defendants to do so. 

V. DEFENDANTS’ LOG OF MR. LEVANDOWSKI’S COMMUNICATIONS 

REGARDING LIDAR 

Finally, the Court has ordered Defendants to compile and serve on Plaintiff a log “of all 

oral and written communications . . . wherein Anthony Levandowksi mentioned LiDAR to any 

officer, director, employee, agent, supplier, or consultant of defendants.” ECF No. 426 at 25. The 

chronological account, here called the “Levandowski Log,” must be served on Plaintiff by noon on 

June 23, 2017. Id. 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the Order requires that: 

• On May 22, 2017, and every Monday thereafter until service of the Levandowski Log, 

Defendants shall submit to the Special Master a detailed summary of all Defendants’ 
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[Proposed] Order re: Special Master’s 

Monitoring and Verification Protocol 

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

7 34390\5968302.1

Farella Braun + Martel LLP

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

(415) 954-4400 

efforts to comply with these requirements and the chronology as it exists at the time of the 

update to the Special Master. 

• If the Special Master determines that he must interview any of Defendants’ employees or 

agents in order to verify Defendants’ compliance with this provision of the May 11 Order, 

Defendants shall, within 48 hours of the Special Master’s request, make the individual(s) 

available to the Special Master for an interview. 

• Subject to the Disclosure Protocol, the Special Master shall have the discretion to share 

with Plaintiff the records of compliance submitted by Defendants and the Special Master’s 

findings from any visit of Defendants’ facilities. 

• Defendants shall immediately rectify any deficiencies the Special Master identifies in 

Defendants’ compliance with the Order. The Special Master shall report to the Court any 

refusal by Defendants to do so. 

DATED: May 17, 2017 /s/ John L. Cooper 

Special Master 

John L. Cooper

IT IS SO ORDERED. 

DATED: May ___, 2017 

HON. WILLIAM ALSUP 

UNITED STATES DISTRICT COURT JUDGE