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RESPONSE TO WAYMO'S MEMORANDUM REGARDING ADVERSE INFERENCES 

CASE NO. 3:17-CV-00939-WHA 

Neel Chatterjee (SBN 173985)

nchatterjee@goodwinlaw.com

GOODWIN PROCTER LLP

135 Commonwealth Drive 

Menlo Park, California 94025 

Tel.: +1 650 752 3100 

Fax.: +1 650 853 1038 

Brett Schuman (SBN 189247) 

bschuman@goodwinlaw.com

Rachel M. Walsh (SBN 250568) 

rwalsh@goodwinlaw.com

GOODWIN PROCTER LLP

Three Embarcadero Center 

San Francisco, California 94111 

Tel.: +1 415 733 6000 

Fax.: +1 415 677 9041 

Hong-An Vu (SBN 266268) 

hvu@goodwinlaw.com 

GOODWIN PROCTER LLP

601 S. Figueroa Street, 41st Floor 

Los Angeles, CA 90017 

Tel.: +1 213 426 2500 

Fax.: +1 213 623 1673 

Attorneys for Defendant 

Otto Trucking 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

OTTO TRUCKING'S RESPONSE TO 

WAYMO'S MEMORANDUM 

REGARDING ADVERSE INFERENCES 

TO BE DRAWN FROM ANTHONY 

LEVANDOWSKI'S ASSERTION OF THE 

FIFTH AMENDMENT 

Judge: Hon. William Alsup 

Trial Date: October 10, 2017 

Case 3:17-cv-00939-WHA Document 898 Filed 07/14/17 Page 1 of 6
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RESPONSE TO WAYMO'S MEMORANDUM REGARDING ADVERSE INFERENCES 

CASE NO. 3:17-CV-00939-WHA 

Defendant Otto Trucking LLC (“Otto Trucking”) respectfully submits this response in 

opposition to Waymo’s Memorandum Regarding Adverse Inferences filed July 7, 2017 (the 

“Memorandum,” Dkt. No. 819). 

I. There is no corroborating evidence to support adverse inferences against Otto 

Trucking. 

Waymo is not entitled to adverse inferences against Otto Trucking because it cannot 

produce corroborating evidence to permit the inferences that it seeks to draw. See Doe ex rel. 

Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000)(“[W]hen there is no corroborating 

evidence to support the fact under inquiry, the proponent of the fact must come forward with 

evidence to support the allegation, otherwise no negative inference will be permitted.”). Waymo’s 

argument that “the Ninth Circuit has rejected the notion that a district court is required, in all cases 

to make specific evidentiary rulings” is irrelevant; no court has held that an adverse inference may 

be drawn if no corroborating evidence has been presented at all. In fact, the cases that Waymo 

cites directly support the proposition that a proponent seeking an adverse inference must provide 

independent, corroborating evidence. See SEC v. Jasper, 883 F.Supp.2d 915, 925 (2010) (holding 

that the SEC had presented sufficient independent evidence at trial, and had “made a sufficient 

showing that the Glanzer requirements had been met” to warrant instructing the jury of adverse 

inferences against defendant for invoking the Fifth Amendment privilege); Powell v. Union 

Pacific R. Co., 2012 WL 3647715 at *3 (holding that “[i]n the present case, where plaintiff has 

provided compelling evidence to corroborate his allegations,” an adverse inference was 

appropriate). 

Waymo has not presented any evidence in its prior submissions, nor will it be able to 

provide any evidence to support the inference that Otto Trucking possessed or used any of 

Waymo’s alleged trade secrets based on Mr. Levandowski’s invocation of the Fifth Amendment 

because there is no such evidence. In response to the Court’s order, Waymo submitted forty-five 

pages of questions it intends to ask Anthony Levandowski at trial with an identification of 

purported corroborating evidence. See Dkt. No. 834. Waymo does not propose to ask a single 

question about Otto Trucking. Waymo did not identify any purported corroborating evidence of 

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RESPONSE TO WAYMO'S MEMORANDUM REGARDING ADVERSE INFERENCES 

CASE NO. 3:17-CV-00939-WHA 

any inference it seeks to draw against Otto Trucking and will not adduce any evidence at trial 

because there is no evidence that Otto Trucking ever possessed any of the allegedly 

misappropriated trade secrets. Absent this evidence, any imputation of Mr. Levandowski’s 

knowledge or actions to Otto Trucking in the face of his Fifth Amendment assertion would be 

“disingenuous”. See Order Re Waymo’s Motion to Compel (Dkt. No. 881). 

II. Waymo Is Not Entitled to an Adverse Inference Against Otto Trucking Based on the 

LiButti Factors 

Waymo’s primary argument relies upon out of circuit authority that has never been 

accepted by the Ninth Circuit. See LiButti v. United States, 107 F.3d 110, 123-24 (2d Cir. 1997). 

Nevertheless, the non-precedential LiButti factors support Otto Trucking, not Waymo. While Mr. 

Levandowski is a founder and managing member of Otto Trucking, Otto Trucking has little, if any 

control over him “in regard to the key facts and general subject matter of the litigation.” LiButti, 

107 F.3d at 123. In fact, Mr. Levandowski’s role as a “managing member” stands for the opposite 

proposition than what Waymo puts forth. Mr. Levandowski is not “under the control of” Otto 

Trucking; rather, the managing members control Otto Trucking when it comes to operations and 

management of the company. See Otto Trucking’s Opposition to Motion for Contempt (Dkt. No. 

804). Moreover, Mr. Levandowski has invoked the Fifth Amendment with respect to alleged 

conduct that occurred prior to Otto Trucking’s existence. Mr. Levandowski’s decision to invoke 

the Fifth Amendment is one entirely independent of Otto Trucking, and his assertion of his rights 

do not support an adverse inference against Otto Trucking. 

According to LiButti, a court must evaluate “whether the assertion of the privilege 

advances the interests of both the non-party witness and the affected party in the outcome of the 

litigation.” 107 F.3d at124. However, Mr. Levandowski’s assertion of his Fifth Amendment rights 

plays little to no role in the advancement of Otto Trucking’s interests. As Otto Trucking has 

repeatedly stated, it is an entity separate from Uber and Ottomotto with no employees, no 

consultants, no electronic systems, and no research and development capabilities. See Letter from 

Neel Chatterjee in Opposition to Waymo’s Motion to Compel (Dkt. No. 747) at 2. Waymo’s 

assertion that Mr. Levandowski and Otto Trucking have a unity of interests with respect to this 

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CASE NO. 3:17-CV-00939-WHA 

litigation is incorrect. Otto Trucking cannot benefit from Mr. Levandowski’s Fifth Amendment 

assertions because Otto Trucking has never possessed or used any of the alleged trade secrets. See 

Otto Trucking’s Précis Letter Requesting Permission to File Motion for Summary Judgment 

(“Précis Letter”) (Dkt. No. 733) at 3. Furthermore, the interests of Otto Trucking and the interests 

of Mr. Levandowski are not one and the same; Otto Trucking is a limited liability company with 

over a hundred other members who would be negatively impacted by an adverse inference against 

Otto Trucking and whose interests diverge from Mr. Levandowski’s in this litigation context. 

Waymo chose not to bring any claims against Mr. Levandowski, and therefore chose to preclude 

itself from being able to draw an adverse inference against Mr. Levandowski at trial. Waymo 

made a tactical decision not to bring litigation against Mr. Levandowski to avoid arbitration; it 

should not be able to use those tactics to impermissibly prejudice Otto Trucking. 

Finally, as for Mr. Levandowski’s role in the litigation, with respect to Otto Trucking, this 

factor is neutral. As stated above, Waymo has no evidence that Otto Trucking possesses any of 

Waymo’s alleged trade secrets, nor that it has used them. With respect to Otto Trucking, 

Waymo’s entire litigation theory is that Uber, not Otto Trucking, used and benefitted from 

Waymo’s alleged trade secrets. Waymo’s allegations against Otto Trucking, as pleaded, are based 

solely on the incorrect allegation that Uber acquired Otto Trucking, and that Otto Trucking 

therefore had access to the allegedly misappropriated trade secrets . See Précis Letter at 2. 

Waymo knows that this assertion in its complaint is false, and Mr. Levandowski’s assertion of his 

Fifth Amendment rights does not affect this fact at all. 

For the reasons explained above, Waymo is not entitled to an adverse inference against 

Otto Trucking based on Mr. Levandowski’s invocation of the Fifth Amendment. 

Dated: July 14, 2017 Respectfully submitted, 

By: /s/ Brett Schuman 

Neel Chatterjee (SBN 173985) 

nchatterjee@goodwinlaw.com

GOODWIN PROCTER LLP

135 Commonwealth Drive 

Menlo Park, California 94025

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RESPONSE TO WAYMO'S MEMORANDUM REGARDING ADVERSE INFERENCES 

CASE NO. 3:17-CV-00939-WHA 

Tel.: +1 650 752 3100 

Fax.: +1 650 853 1038 

Brett Schuman (SBN 189247) 

bschuman@goodwinlaw.com

Rachel M. Walsh (SBN 250568) 

rwalsh@goodwinlaw.com

GOODWIN PROCTER LLP

Three Embarcadero Center 

San Francisco, California 94111 

Tel.: +1 415 733 6000 

Fax.: +1 415 677 9041 

Hong-An Vu (SBN 266268) 

hvu@goodwinlaw.com 

GOODWIN PROCTER LLP 

601 S. Figueroa Street, 41st Floor 

Los Angeles, CA 90017 

Tel.: +1 213 426 2500 

Fax.: +1 213 623 1673 

Attorneys for Defendant 

Otto Trucking LLC 

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RESPONSE TO WAYMO'S MEMORANDUM REGARDING ADVERSE INFERENCES 

CASE NO. 3:17-CV-00939-WHA 

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 July 14, 2017. I further certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by the CM/ECF system. 

I certify under penalty of perjury that the foregoing is true and correct. Executed this 14th 

day of July 2017. 

/s/ Brett Schuman 

 Brett Schuman 

Case 3:17-cv-00939-WHA Document 898 Filed 07/14/17 Page 6 of 6