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01980-00104/9472329.1

WAYMO’S SUPPLEMENTAL BRIEF ISO MOTION FOR ORDER TO SHOW CAUSE

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 

SUPPLEMENTAL BRIEF IN SUPPORT 

OF ITS MOTION FOR ORDER TO 

SHOW CAUSE WHY DEFENDANTS 

SHOULD NOT BE HELD IN CONTEMPT 

OF THE PRELIMINARY INJUNCTION 

ORDER (Dkt. 426) AND EXPEDITED 

DISCOVERY ORDER (Dkt. 61) 

Date: August 16, 2017 

Time: 8:00 a.m. 

Ctrm: 8, 19th Floor 

Judge: Honorable William H. Alsup 

Trial Date: October 10, 2017 

Case 3:17-cv-00939-WHA Document 1095 Filed 08/07/17 Page 1 of 3
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01980-00104/9472329.1

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WAYMO’S SUPPLEMENTAL BRIEF ISO MOTION FOR ORDER TO SHOW CAUSE

Waymo brings this supplemental brief to notify the Court of an additional violation of the 

Court’s March 16 Expedited Discovery Order that first came to light on Friday, August 4. As set forth

in Waymo’s Motion for an Order to Show Cause (Dkt. 677), the Court’s Expedited Discovery Order 

required Uber to not only produce “all files and documents downloaded by Anthony Levandowski ... 

before leaving plaintiff’s payroll” by March 31, but also provided that “[i]f any part of said 

downloaded material has been deleted, destroyed, or modified, then defendants shall state the extent 

thereof and produce all documents bearing on said deletion, destruction, or modification.” (Dkt. 61 at 

2 ¶ 4.) On the Court’s March 31 deadline, Uber failed to provide any statement as to the deletion of 

downloaded material, or any documents bearing on said deletion. (See Dkt. 677 at 2-3; 13-14.) 

Just last Friday, however, Angela Padilla, Uber’s Associate General Counsel for Litigation & 

Employment, admitted in a sworn declaration that on March 29, 2017, Anthony Levandowski told her 

and then-Uber CEO Travis Kalanick that he had downloaded Waymo files but that “he no longer had 

the files he had downloaded because he had deleted them.” (Dkt. 1082-1 at 2 ¶ 6.) That conversation 

purportedly occurred two days before the Court’s March 31 deadline for Uber to disclose the 

“deletion” of any “files and documents downloaded by Anthony Levandowski,” yet Uber did not 

disclose it until August 4, over four months later. Uber’s failure to disclose this destruction of 

evidence was a deliberate and willful violation of the Court’s March 16 Order. Contempt is 

warranted, as there is no excuse for Uber’s failure to disclose the destruction of these downloaded files 

that was communicated in advance of the March 31 deadline to the highest ranks of Uber’s executive 

and legal teams. 

Waymo anticipates that Uber may attempt to justify its violation of the Court’s March 16 

Order by arguing that the March 29 conversation between Mr. Kalanick, Mr. Levandowski, and Ms. 

Padilla was privileged and that Uber did not waive that privilege until June 28, 2017, when for the 

very first time it disclosed the “bonus” explanation for the downloads (which Mr. Levandowski 

related to Mr. Kalanick and Ms. Padilla as part of that same March 29 conversation). (See Dkt. 755, 

Uber’s June 28 Response to the Court’s Ten Questions at 13 (“Rather, Uber believes that the downloading 

was done in relation to Levandowski’s employment at Google, specifically to ensure the expected payment 

of Levandowski’s $120 million bonus from Google.”).) However, this argument is baseless because Uber 

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WAYMO’S SUPPLEMENTAL BRIEF ISO MOTION FOR ORDER TO SHOW CAUSE

has taken the position that the conversation between Mr. Levandowski, Mr. Kalanick, and Uber’s 

Associate General Counsel for Litigation & Employment has never been privileged. (See, e.g., Dkt. 1082 

at 1 and 1082-1 at 2-3.) Uber cannot have it both ways. Either Uber has been in contempt of the Court’s 

Expedited Discovery Order for over four months, or (as explained in Waymo’s Motion to Compel re 

Kalanick Deposition), Uber has selectively disclosed privileged communications about Mr. 

Levandowski’s reasons for downloading the files and for pleading the Fifth Amendment.1 (Dkt. 1060.) 

Finally, Waymo has suffered significant prejudice by this additional violation of the Expedited 

Discovery Order. Because Uber did not reveal the purported destruction of the downloaded files 

communicated in that March 29 conversation until August 4 – twenty days before the close of fact 

discovery – Uber has succeeded in preventing Waymo from serving written discovery requests about 

it in both the expedited and normal discovery phases. Uber also gamed the discovery process so that 

Waymo could not pursue expedited depositions – either those in the PI or post-PI Order phase – of 

Mr. Kalanick or Ms. Padilla, the only two witnesses to the conversation who are not pleading the Fifth

Amendment.2

 

For the foregoing reasons, Waymo respectfully requests that the Court include this violation in 

its Order to Show Cause why Defendants should not be held in civil contempt of the Expedited 

Discovery Order. 

DATED: August 7, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP 

By /s/ Charles K. Verhoeven 

Charles K. Verhoeven 

Attorneys for WAYMO LLC 

 

1

 In addition to resulting in subject matter waiver, Uber’s selective disclosure of these privileged 

communications for the first time on June 28, four weeks after the June 1 deadline set by the Court 

for any privilege waiver “on pain of preclusion,” requires preclusion of Uber’s belatedly disclosed 

“bonus” explanation. This will be the subject of Waymo’s forthcoming renewed Motion in 

Limine No. 1. 

2

 Uber has agreed to make Mr. Kalanick available for a second deposition (at a date yet to be 

determined), and Ms. Padilla is also scheduled to be deposed on August 24 (i.e., the final day of 

fact discovery), but these 11th hour depositions merely limit, rather than eliminate, the prejudice to 

Waymo. 

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