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01980-00104/9511828.1

WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

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 REPLY IN 

SUPPORT OF ITS MOTION FOR RELIEF 

FROM NON-DISPOSITIVE PRETRIAL 

ORDER OF MAGISTRATE JUDGE (DKT. 

1276)

Judge: The Honorable William Alsup

Trial Date: October 10, 2017
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WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

I. THE MAGISTRATE’S ORDER REGARDING INTERROGATORY NO. 25 WAS 

CLEARLY ERRONEOUS TO THE EXTENT IT IGNORED WAYMO’S 

RESPONSE TO INTERROGATORY NO. 1

As explained in Waymo’s Motion for Relief, Waymo’s objection to the Magistrate’s Order 

regarding Interrogatory No. 25 is narrow and should be moot. Interrogatory No. 25 and 

Interrogatory No. 1 overlap significantly, and the Magistrate may have overlooked Waymo’s 

Interrogatory No. 1 response (which Waymo expressly incorporated into its Interrogatory No. 25 

response) when the Magistrate stated that Waymo “does not identify any Uber technology that 

reflects that Uber used the files Mr. Levandowski allegedly took.” (Order at 3:9-10.) The 

Magistrate then stated: “If Waymo does intend to offer such facts they need to be in its 

Interrogatory response” (id. at 3:11), apparently referring to Waymo’s then-existing Interrogatory 

25 response without considering the Interrogatory No. 1 response incorporated therein. 

In an abundance of caution, Waymo has now updated its Interrogatory No. 25 response to 

include the full text of its Interrogatory No. 1 response. Thus, even under the restrictive terms of 

the Magistrate’s Order, Waymo has now complied with that Order and should be allowed to use 

any facts disclosed in the latest version of the Interrogatory No. 25 response to support its 

contention that Uber used the files Levandowski took. Indeed, Defendants’ Opposition nowhere 

denies that Waymo’s Interrogatory No. 1 response provides the very information that Defendants 

seek.

Nonetheless, Defendants’ Opposition tries to pretend the Interrogatory No. 25 response 

does not include the Interrogatory No. 1 response that Waymo incorporated by reference. (See 

Opp. at 5:4-6.) There is no basis for this sort of litigation gotcha when there has been full 

disclosure of the very facts Uber sought to compel. For example, with respect to asserted Trade 

Secret No. 96, Waymo’s response to Interrogatory No. 1 explains that “the Fuji device includes 

printed circuit boards that incorporate design information contained in or derived from files 

downloaded by Anthony Levandowski on December 11, 2015,” and lists the exact folder path 

showing where these files were located. The response then identifies specific evidence 

demonstrating that Uber uses information contained in or derived from the stolen files, including 

Fuji design schematics, images of the Fuji device, and a third party production from Uber’s circuit 
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WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

board vendor. (Dkt. 1174-5 (Fourth Supplemental Objections and Responses) at 25.) Waymo’s 

response to Interrogatory No. 1 identifies the same level of detailed evidence for each of trade 

secrets that use information contained from the 14,000 design files that Mr. Levandowski stole.

(Id. at 7-8 (No. 2), 21 (No. 7), 23-24 (Nos. 14, 90).)1 These responses indisputably provide 

information that is responsive to Uber’s Interrogatory No. 25, and it is dishonest for Uber to 

pretend they don’t exist. 

Also meritless is Defendants’ argument that Waymo is “us[ing] the 14,000 files as a proxy 

for its nine elected trade secrets.” (Opp. at 5:2-3.) Waymo has never alleged that the 14,000 files 

and the trade secrets are coterminous, nor does Waymo need to make this showing. In other 

words, Waymo does not need to show that all 14,000 files are being used in order to show use of 

Waymo’s trade secrets. But as explained above, several of Waymo’s trade secrets are disclosed in 

certain of the 14,000 files, and Defendants’ use of those trade secrets shortly after Mr. 

Levandowski stole the files and began working for Defendants raises a strong inference that 

Defendants acquired those trade secrets through the stolen files. 

In any event, the Magistrate’s Order stated: “If Waymo does intend to offer such facts they 

need to be in its Interrogatory response.” (Order at 3:10-11.) Waymo has now updated that 

Interrogatory response—its Interrogatory No. 25 response—to include verbatim all the 

information in its Interrogatory No. 1 response that Uber already had. Thus, Waymo can use any 

facts or resulting inferences disclosed in its latest version of the Interrogatory No. 25 response to 

support its contention that Uber used the Levandowski files. Out of an abundance of caution, 

Waymo simply seeks an order from the Court formally confirming this point.

Finally, to the extent the Magistrate meant to hold Waymo to its original Interrogatory No. 

25 response and preclude any information not in the original Interrogatory No. 25 response, such a 

preclusion order would be clearly erroneous because the Magistrate did not even purport to 

conduct a preclusion analysis under Rule 37(c)(1). Rule 37(c)(1) expressly states that preclusion 

 

1

 Waymo has continued to supplement these responses to identify additional evidence 

showing Uber’s use of the stolen files.
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WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

is inappropriate for a discovery violation that was “substantially justified” or “harmless.” Here, 

Waymo was substantially justified in incorporating by reference its Interrogatory No. 1 response 

into its Interrogatory No. 25 response. Indeed, incorporation-by-reference is a standard if not 

ubiquitous practice in written discovery. Likewise, any alleged failure to properly incorporate the 

Interrogatory No. 1 response into the Interrogatory No. 25 response was “harmless” because 

Defendants possessed the relevant information through the Interrogatory No. 1 response itself. 

The caselaw factors that courts use to gauge the propriety of Rule 37(c)(1) preclusion also 

cut sharply against any preclusion here. These factors include “(1) prejudice or surprise to the 

party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) 

the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely 

disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 

2010). Here, Defendants suffered no prejudice because they possessed all the relevant information 

by virtue of Waymo’s Interrogatory No. 1 response. There is no risk of trial disruption. And

Waymo did not engage in any bad faith or willfulness when it incorporated its Interrogatory No. 1 

response into its Interrogatory No. 25 response. It follows that there should be no preclusion.

II. THE MAGISTRATE CLEARLY ERRED IN ORDERING DISCOVERY

REGARDING SELECT GOOGLE ACQUISITIONS (INTERROGATORY NOS. 18 

AND 19 AND RFP NOS. 170, 172, AND 173)

There is no basis for Defendants to obtain intrusive discovery into Google’s acquisitions of 

unrelated third-party companies, just because Waymo plans to present evidence that the terms of 

the Uber-Otto acquisition were highly unusual. If Defendants wish to rebut Waymo’s evidence 

and portray the terms of the Uber-Otto acquisition as standard operating procedure, there are

several avenues by which Defendants can do so. They can present expert testimony on standard 

mergers-and-acquisitions (M&A) practice, they can introduce scholarly literature on this topic, etc. 

But seeking highly intrusive discovery into a few select Google acquisitions would have little to 

no relevance for proving what sorts of terms and conditions are standard in the M&A world. And 

weighed against this marginal (if any) relevance, it would be extremely burdensome for Google to 

divulge details about these highly sensitive acquisitions. Thus, the Rule 403 balance tips sharply 

against allowing this sort of discovery, and the Magistrate clearly erred in ruling otherwise.
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WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

To use a homespun analogy, consider a premises liability case over a shoddy staircase that 

caused a houseguest to trip. In determining whether the defendant homeowner used the standard of 

care in building and maintaining the staircase, it might be relevant to submit expert testimony on the 

industry standard for staircases. It might be relevant to introduce building codes setting forth how 

staircases should be constructed and maintained. But it would be an irrelevant frolic to seek discovery 

into various staircases in the houses that plaintiff has owned. This is essentially what Defendants are 

trying to do through their discovery requests into Google acquisitions. The Court should not allow this 

tactic.

Defendants’ Opposition does nothing to rebut this point. Defendants first argue that the 

Google acquisitions on which they seek discovery are particularly relevant because they involved 

circumstances where “Google acquired new technologies to gain advantage over competitors.” 

(Opp. at 2:5-6.) But this says nothing at all. In a capitalist economy, virtually every action that a 

company might take would be an effort “to gain advantage over competitors.” And in the 

technology marketplace, most if not all acquisitions are an attempt to acquire some new 

technology. So this does not imbue the Google acquisitions with any particular relevance. 

Indeed, it is telling that Defendants’ Opposition does not cite any specific, individualized 

information about any of the acquisitions that would make them similar to the Uber-Otto 

acquisition. To call this a “fishing expedition” would be generous. 

Defendants next argue that “Waymo answered Interrogatory No. 18 by describing general 

steps it has taken in acquisitions rather than describing each of the seven deals.” (Opp. at 2:8-9.) 

This is an accurate statement, but it does not answer why Defendants are entitled to sensitive 

details about each individual Google acquisition. In the spirit of disclosure and compromise, 

Waymo provided information on Google’s general acquisition practices (even though the 

relevance of such information is slim-to-none). Defendants have also now questioned at least 

three witnesses on the topic of Google’s acquisitions and all confirmed, among other things, that 

Google doesn’t indemnify for bad acts of an acquired company, and that none of the unusual terms 

of the transaction between Uber and Otto are included in Google’s acquisitions. Delving into the 
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WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

details of each individual acquisition would not have any more relevance, but would be greatly 

burdensome and harassing to Google and Waymo.

Finally, Defendants argue that it is irrelevant that Waymo will not present evidence of the 

Google acquisitions at trial, because “Uber may very well wish to offer evidence of these 

transactions at trial . . .” (Opp. at 2:20) (emphasis in original). But this just begs the question: 

why are Defendants entitled to put on evidence of unrelated Google acquisitions? The simple 

answer is that they are not. These acquisitions are not relevant. Defendants fail to rebut this point.

III. THE MAGISTRATE DID NOT CLEARLY STATE THE SCOPE OF DISCOVERY 

PERMITTED IN RESPONSE TO RFP 166

Defendants offer no support for their overbroad reading of the Magistrate’s Order 

regarding RFP 166—i.e., their position that the Magistrate’s Order demands a new, plenary, 7-

hour deposition of the four relevant individuals if any responsive documents are located and 

produced after their depositions. The Magistrate’s Order on this point simply said: “If Waymo has 

not already done so, it shall search the emails of the four individuals who have or will testify on 

this topic for emails and any attachments responsive to Request No. 166. The documents shall be 

produced prior to the deposition; if produced afterwards Waymo must make the deponent 

available for further deposition at Waymo’s cost.” (Order at 3:13-16.) Reasonable proportionality

is appropriate here. For example, Defendants should not be entitled to a new, plenary, 7-hour 

deposition just because some marginally-responsive document was located and produced after the 

initial deposition. Thus, Waymo requests that the Court clarify or modify the Magistrate’s Order 

to make clear that a new deposition based on late-produced documents would be proper only 

regarding the content of those document(s), only for the custodian of those document(s), and only 

if Defendants provide some showing that the topic of the newly-produced document(s) has not 

been adequately explored at the custodian’s prior deposition. 

 
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WAYMO’S REPLY ISO MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (DKT. 1276)

DATED: August 25, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC