dc-888024

Writer’s Direct Contact 

+1 (415) 268.7020 

AGonzalez@mofo.com 

425 MARKET STREET 

SAN FRANCISCO 

CALIFORNIA 94105-2482 

TELEPHONE: 415.268.7000 

FACSIMILE: 415.268.7522 

WWW.MOFO.COM 

MORRISON FOERSTER LLP

BEIJING , BERLIN , BRUSSELS , 

DENVER , HONG KONG , LONDON , 

LOS ANGELES , NEW YORK , 

NORTHERN VIRGINIA , PALO ALTO , 

SAN DIEGO , SAN FRANCISCO , SHANGHAI ,

SINGAPORE , TOKYO , WASHINGTON , D . C . 

June 21, 2017 

Honorable Jacqueline Scott Corley 

United States Magistrate Judge 

United States District Court 

Northern District of California 

450 Golden Gate Avenue 

San Francisco, CA 94102 

Re: Waymo LLC v. Uber Technologies, Inc. et al., Case No. 3:17-cv-00939

Dear Judge Corley: 

Uber moves to compel responses to interrogatories and production of documents by Waymo 

that are fundamental to Uber’s defenses and that Uber needs to proceed with depositions. 

Waymo has sought and already obtained massive amounts of discovery from Uber, while at 

the same time refusing to produce information to which Uber is clearly entitled under the 

Federal Rules and that are more than proportional to the needs of the case, given the severity 

and scope of the relief Waymo seeks. Unless the Court promptly puts an end to Waymo’s 

stonewalling, the manifest prejudice to Uber will be severe. 

In light of the critical nature of this issue, Uber respectfully asks the Court to order Waymo 

to produce immediately documents and information in response to Uber’s Document Request 

Nos. 5-17, 19-20, 22-30, 33, 34, 37-43, 47-48, 64, 65, 67, 68, 71, 72, 77, 79, 80, 98-104, 114, 

125-130, 134, 145, 149-156, 158-161, and Interrogatory Nos. 1-11, or, in the alternative, 

schedule a hearing on this motion on July 5-7. 

Background 

After serving its first set of document requests on May 12, 2017, and its second set of 

document requests and first set of interrogatories on May 17, 2017, Uber met and conferred 

with Waymo and the Special Master regarding Waymo’s various objections. (See Exs. 1A1C, RFPs and Interrogs; Ex. 2, 6/9/17 E. Chang Email.)1

 Upon service of Waymo’s 

objections and responses to the first set of documents requests on June 12, 2017, Uber 

identified a number of deficiencies in (1) Waymo’s responses (Waymo provided effectively 

the same response for 37 requests, and answered another 11 with the same response), and 

(2) Waymo’s accompanying production, which consisted of only 337 documents, totaling 

only 1623 pages, in response to 146 requests for production. (See Ex. 3, Waymo Objs. & 

 

1 All references to “Ex.” are to Declaration of Michelle Yang in Support of Defendants’ 

Motion to Compel Response to Interrogatories and Production of Documents by Waymo 

(“Yang”). 

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 1 of 7
Honorable Jacqueline Scott Corley 

June 21, 2017 

Page Two 

dc-888024 

Resp. to 1st Set of RFPs; Ex. 4, 6/14/17 S. Llewellyn Email.) Waymo again objected, and 

declined to produce documents, in response to the second set of document requests on June 

16, 2017, and failed to respond to a number of interrogatories. (See Ex. 5, Waymo Objs. & 

Resp. to 2d Set of RFPs; Ex. 6, Waymo Objs. & Resp. to 1st Set of Interrogs.) Uber made 

repeated attempts to resolve the issues raised by Waymo. (Ex. 7, 6/17/17 A. Gonzalez Email 

re 2d set of RFPs; Ex. 8, 6/18/17 A. Gonzalez Email re 2d set of RFPs; Ex. 9, 6/17/17 S. 

Llewellyn Email; Ex. 10, 6/17/17 A. Gonzalez Email re 1st set of Interrogs. (No. 11); Ex. 11, 

6/17/17 A. Gonzalez Email re 1st Set of Interr. (Nos. 1-10); Ex. 20, 6/17/17 A. Gonzalez 

Email re Waymo Resp to Doc. Reqs.; Yang ¶¶ 3-5.) Waymo refused to budge or 

compromise on any of the requests. (See Ex. 12, 6/16/17 J. Nardinelli Email; Ex. 13, 6/18/17 

J. Nardinelli Email; Ex. 14, 6/18/17 F. Corredor Email.) Accordingly, the Special Master 

directed Uber to file a seven-page letter brief on the issues at an impasse by June 21, 2017. 

Argument 

1. Waymo’s 121 Trade Secrets: Uber’s interrogatories seek to obtain basic information 

regarding the details of Waymo’s purported 121 trade secrets. Waymo objected based on 

burden, but having chosen to assert 121 secrets, Waymo cannot complain about the burden of 

responding with specificity as to each trade secret. Waymo failed to respond to 

Interrogatories 4-7 separately for each secret. And in response to Uber’s Interrogatories 1-

10, regarding the nature of the purported secrets, Waymo provided information regarding 

only a limited subset, based on the theory that the language of Interrogatory No. 1 limits the 

interrogatories to those for which Waymo has evidence of use by Uber in its self-driving 

technology. (Ex. 14, 6/18/17 F. Corredor Email.) But Interrogatory No. 1 is not so limited; 

it asks about all trade trade secrets asserted against Uber, by asking about trade secrets 

“used” by Uber generally, without limitation to “use” in the current implementation of 

Uber’s self-driving technology. Waymo must provide the requested information. If it has no 

evidence in connection with some of the alleged secrets, it should explicitly say so.2

Waymo’s responses to Uber’s requests for production of documents are equally evasive. For 

example, No. 160 asks for documents where Waymo has advised its employees that the trade 

secrets in this case are trade secret or confidential. Waymo provided a general response 

saying it will produce documents regarding the “robust measures” it takes to protect the 

privacy of its information. That is not what Uber requested. If there are no responsive 

documents specific to the alleged trade secrets, Waymo must say so. Similarly evasive, 

Waymo provided what is effectively the same response for 37 document requests relating to 

the technical features, development, and value of Waymo’s alleged trade secrets. In response 

to Request Nos. 5-17, 19-20, 22-30, 33, 34, 77, 79, 80, 98-104, and 114, Waymo states that 

“Waymo will produce all documents relating to Waymo’s development of the Alleged 

 

2 Two examples of the deficiencies are Nos. 7 (Waymo should confirm that there are no 

specific communications pertaining to the specific trade secrets at issue) and 10 (response 

should confirm that unlisted trade secrets are not referenced in the misappropriated files). 

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 2 of 7
Honorable Jacqueline Scott Corley 

June 21, 2017 

Page Three 

dc-888024 

Waymo Trade Secrets as located through a reasonably diligent search” (along with stating 

objections and/or otherwise qualifying its response). But the requests to which Waymo 

provides this response are not coextensive in scope, and are not limited to those documents 

Waymo says it will produce, instead focusing on a variety of different issues relating to 

Waymo’s LiDAR technology. Perhaps more importantly, Waymo fails to specify which 

portions of the documents “relating to Waymo’s development of the alleged Waymo Trade 

Secrets” are responsive to which document request, specific trade secret, and/or interrogatory 

response. 

2. Quinn Conflict/Timing of Decision to Sue Uber: With no prior notice, Quinn Emanuel 

fired Uber as a client one month before Waymo filed its arbitration action against 

Mr. Levandowski. (See Ex. 15, 9/23/16 S. Swedlow Email; Yang ¶ 2.) If Quinn fired Uber 

as a client knowing that Mr. Levandowski or Uber was going to be sued by Waymo, that 

would present serious ethical issues that could lead to Quinn’s disqualification. In response 

to Request Nos. 47-48, and 145 (which ask for communications about suing Mr. 

Levandowski and Uber ), Waymo states that it will log a communication regarding its first 

discussion of possibly suing Mr. Levandowski. That is deficient for two reasons: (1) Uber is 

entitled to all pre-filing communications about possibly suing Mr. Levandowski, and 

(2) more importantly, it completely ignores when Waymo first had discussions with Quinn

about the possibility of suing Quinn’s client, Uber. Waymo should produce documents 

sufficient to show when it first discussed with Quinn the possibility of legal action against 

Uber or Mr. Levandowski. 

In addition, nonprivileged communications between Waymo business people regarding the 

possibility of litigation may be relevant to other issues, including (1) Waymo’s delay in 

asserting its rights (relevant to injunctive relief and defenses like laches), and (2) whether 

Mr. Levandowski’s activities were consistent with Waymo policies and practices. 

3. Waymo/Google Practices Regarding Side Businesses: Uber’s Request Nos. 37-43, 

125-128 and Interrogatory No. 11 seek information about side businesses operated by 

Waymo and Google employees. These requests are in response to Waymo’s assertion that 

Anthony Levandowski improperly set up a side business while he was still at Waymo.3

 

Waymo alleges that Mr. Levandowski and Uber engaged in a “cover-up scheme” regarding 

 

3 See, e.g., Dkt. 23, First Amended Compl. ¶¶ 5 (Levandowski “set up his own new 

venture—which eventually became Otto— before leaving Waymo in January 2016.”), 

41 (Levandowski “was also secretly preparing to launch a competing vehicle automation 

venture . . . which later would become Otto”), 42 (Levandowski “went to great lengths to 

take what he needed to ‘replicate’ Waymo’s technology and then to meet with Uber 

executives, all while still a Waymo employee”), 48 (“[W]hile still a Waymo employee . . . 

Mr. Levandowski attended meetings with high-level executives at Uber’s headquarters”).

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 3 of 7
Honorable Jacqueline Scott Corley 

June 21, 2017 

Page Four 

dc-888024 

the formation of his new company before he left Waymo.4 These allegations put at issue 

Waymo’s practices regarding side businesses. Because public information indicates that 

many Google employees, including Larry Page himself, commonly set up and operate side 

businesses while working at Waymo or Google, discovery on these side businesses is directly 

relevant to rebutting Waymo’s allegations. 

Waymo objects to the relevance of these requests, but effectively conceded their relevance 

by producing policies and requirements for employees engaging in side businesses. (Ex. 3 at 

23, Resp. to RFP 36.) In other words, Waymo intends to argue that Mr. Levandowski did not 

follow its policies, but does not want to produce documents regarding whether other 

employees followed these policies.5

 Waymo’s actual practices regarding side businesses are 

clearly relevant. For 11 requests, however, Waymo provides effectively the same response, 

limiting its production only to documents “relating to side businesses of Anthony 

Levandowski.” (Ex. 3, Response to Request Nos. 37-43, 125-128 (emphasis added).) These 

requests are not coextensive in scope, and are not limited to Mr. Levandowski. 

Having alleged a “clandestine plan,” Waymo cannot complain where Uber seeks documents 

showing that many Google employees are allowed to operate their own side businesses and 

to communicate with potential purchasers of services from those companies, and that they 

have done so without formal adherence to written policies.6

Uber’s Interrogatory No. 11 seeks the names of the senior executives with side businesses at 

Google. Waymo objected on the grounds of relevance and proportionality. To the extent 

other senior executives had side businesses and did not comply with company policy, that is 

relevant. Waymo fails to explain why an identification of names is disproportionate. (Yang 

¶ 4.) 

4. Mr. Levandowski’s Reasons for Leaving Waymo: As explained above, Waymo has 

repeatedly asserted that (1) Mr. Levandowski’s departure from Waymo was part of “coverup scheme” for a “clandestine plan” between Uber and Mr. Levandowski to have him “build 

 

4 See, e.g., 5/3/17 Public PI Hr’g Tr. at 6:4-14 (“[W]e’ve learned that Uber and Levandowski, 

together, created a cover-up scheme for what they were doing . . . . while Mr. Levandowski 

was still working at Waymo”); 6/12/17 Waymo Ltr. Br. (Dkt. 595-4) (“The record already 

contains compelling evidence that extensive communications between Levandowski and 

Uber exist, even prior to the time Levandowski departed Waymo.”). 5 Uber has asked Waymo if it will stipulate not to argue at trial that Mr. Levandowski failed 

to comply with company policies regarding side businesses, and Waymo refused. (Yang 

¶ 3.)

6 Uber agreed that Waymo could initially produce documents only for its autonomous driving 

employees and senior executives. The Special Master asked if Waymo could at least 

determine how many such employees have side businesses, but Waymo refused. It has only 

produced “side business” documents that it believes will be helpful to its case. (Yang ¶ 4.)

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 4 of 7
Honorable Jacqueline Scott Corley 

June 21, 2017 

Page Five 

dc-888024 

a custom LiDAR for Uber based on his experience with Waymo’s efforts,” and (2) Uber 

“recruit[ed] [Levandowski] away from Waymo” and “enticed” him. (5/3/17 Public Hr’g Tr. 

at 6:1-6, 13:25-14:8; Waymo PI Reply at 1.) 

Uber’s requests directed to issues surrounding Mr. Levandowski’s departure are therefore 

obviously relevant. Waymo conceded the relevance of the reason for Mr. Levandowski’s 

departure by agreeing to produce documents in response to Request Nos. 44 (“relating to the 

departure of Anthony Levandowski”); and 138 (“communications between Anthony 

Levandowski and John Krafcik relating to . . . departure”). 

Uber’s Request Nos. 67 and 68 regarding the DOJ Consent Decree (and related rights to 

compete for employees) are relevant to Waymo’s arguments that Uber improperly recruited 

Mr. Levandowski while he was employed by Waymo. Documents relating to compliance 

with the DOJ Consent Decree are relevant to showing that recruiting employees away from 

Waymo was expressly allowed under the DOJ Consent Decree, which barred Waymo from 

entering into “any agreement that in any way prevents any person from soliciting, cold 

calling, recruiting, or otherwise competing for employees.” (Ex. 16, DOJ Press Release.) 

Uber offered to narrow or withdraw these requests if Waymo would stipulate that Uber was 

free to recruit Mr. Levandowski while he was at Waymo and did nothing improper by doing 

so (Waymo refused). (Ex. 2, 6/9/17 E. Chang Email.) Without such a stipulation, these 

requests are relevant to an issue Waymo has put in play. 

Uber’s Request Nos. 64 and 65 regarding the hiring of Waymo CEO John Krafcik are 

similarly relevant to the reasons for Mr. Levandowski’s departure from Waymo and 

formation of Otto, given media reports that the hiring of Mr. Krafcik created friction at 

Waymo. Again, Uber has communicated to Waymo its willingness to narrow or withdraw 

these requests if Waymo stipulates that Mr. Levandowski had legitimate reasons for leaving 

Waymo and forming his own company (Waymo refused). (Ex. 2, 6/9/17 E. Chang Email.) 

Without such a stipulation, these requests are relevant to an issue Waymo has put in play. 

5. Waymo production of Lyft-related documents: Waymo has entered into a contract to 

joint venture with Lyft. It objects to Request Nos. 149-156 regarding Waymo’s reported deal 

with Lyft on relevance, proportionality, and privilege grounds. (See Ex. 17, 5/14/17 New 

York Times article (reporting deal).) 

The relevance of the Waymo/Lyft deal is obvious: Waymo and Otto both provide selfdriving technology; Lyft and Uber are competitors in the ride-sharing business. In this case, 

Waymo asserts claims arising out of Uber’s acquisition of Otto and its ride-sharing 

technology, which appears to parallel the Waymo/Lyft deal in many respects. Based on 

press reports alone, the terms, diligence, and communications regarding the Waymo/Lyft 

deal appear at least relevant to (1) the valuation of self-driving technology for purposes of 

analyzing damages; (2) the appropriateness of injunctive relief, given Waymo’s assertions 

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 5 of 7
Honorable Jacqueline Scott Corley 

June 21, 2017 

Page Six 

dc-888024 

that Uber has negatively impacted Waymo’s first-mover advantage; and (3) industry practice 

regarding and knowledge of information about self-driving technology. 

Given the scope of relief Waymo seeks—to bar Uber from the self-driving industry that is 

the subject of the Waymo/Lyft deal—Waymo’s relevance and proportionality objections are 

baseless. In addition, details about the date Waymo began discussions with Lyft (Request 

No. 156) are relevant to Waymo’s actual basis for bringing this suit. A jury can rationally 

conclude that Waymo’s suit is motivated by a desire to take Uber’s share of the ride-sharing 

market, rather than trade-secret issues. That is supported by a document obtained by Uber in 

discovery, showing Waymo’s secret plan to dethrone Uber. (Ex. 18, Chu Dep. Ex. 1031 at 

10-12.) 

While the details of the Waymo/Lyft deal are generally unknown, that is a consequence of 

Waymo refusing to disclose them. Where the terms are known only to Waymo and Lyft, 

Waymo cannot simply assert that the deal is irrelevant without explaining why. Cf. Am. 

Broad. Cos., Inc. v. Aereo, Inc., No. CV-12-80300-RMW, 2013 WL 1508894, at *1 (N.D. 

Cal. Apr. 10, 2013) (“A party challenging a subpoena by claiming a privilege must 

sufficiently describe the withheld material so that the parties and the court can assess the 

claim.”). Accordingly, Waymo should be compelled to produce all non-privileged 

documents in response to Uber’s requests 149-156. If it is withholding documents based on 

privilege, a log should be prepared. 

6. Damages/relief issues: Waymo has conceded the relevance of documents relating to the 

replacement of former employees Messrs. Levandowski, Kshirsagar, and Raduta. (Ex. 19, 

6/8/17 J. Nardinelli Email (“To the extent those documents relate to replacing these 

individuals, Waymo will produce them.”).) But Uber’s Request Nos. 129 and 130 are 

directed to the costs of and steps taken for recruiting and training any other employee to 

replace those former employees who were subsequently employed by Defendants. These 

documents are relevant not only to Waymo’s alleged damages, but also a theory of 

irreparable harm. (Dkt. 426, 5/12/17 PI Order at 19 (“[I]f defendants use Waymo’s trade 

secrets to accelerate their own progress in LiDAR development, that momentum would 

improve their ability to attract investors and talented engineers away from competitors—

including Waymo itself.”).) Contrary to Waymo’s objections, these requests are directly 

relevant to the “momentum” Waymo allegedly has lost in attracting talent and are 

proportional to the relief Waymo seeks. 

Request No. 71 seeks documents relating to the reason for the creation of Waymo, which are 

similarly relevant to damages and injunctive relief issues, including (1) the value of the selfdriving car program to Google, (2) Waymo’s business plans for competing in the self-driving 

car space, and (3) the competitive landscape. This request is not co-extensive with requests 

relating to Waymo’s financial viability, performance, and business plans, because responsive 

documents would include Google’s internal analyses of the competitive landscape, which 

presumably would reflect the value of and demand for Waymo’s self-driving technology. 

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 6 of 7
Honorable Jacqueline Scott Corley 

June 21, 2017 

Page Seven 

dc-888024 

7. Waymo’s Interrelationship with Google: Waymo refuses to produce documents 

responsive to Request No. 72 showing the degree of interrelationship between Google and 

Waymo, and thus Waymo’s control over Google’s documents. See Stella Sys., LLC v. 

MedeAnalytics, Inc., No. 14-cv-00880-LB, 2015 WL 1870052, at *3 (N.D. Cal Apr. 22, 

2015) (“Critical factors [for control] include . . . any overlap of directors, officers, and 

employees, and the financial relationship between the two entities”). Waymo concedes that 

it will produce Project Chauffeur documents “regardless of the entity with technical custody” 

(Ex. 19, 6/8/17 J. Nardinelli Email), but objects to discovery requests defining “Waymo” to 

encompass Google and Alphabet. (Ex. 5 at 2.) 

8. Other Document Requests: Waymo refuses to produce a document that identifies the 

date it issued a litigation hold (No. 158), an organizational chart (No. 159), and all drafts of a 

critical Waymo document regarding overtaking Uber (No. 161). Waymo has made no effort 

to identify the number of drafts and instead will only produce the final draft prepared on any 

given day. 

Finally, No. 134 regarding the resignation of David Drummond from Uber’s board is 

directed to Waymo’s delay in seeking relief, which is relevant to its purported need for 

injunctive relief. Waymo’s own discovery requests regarding meetings of the board while 

Mr. Drummond was a member belie its arguments regarding the relevancy and 

proportionality of Uber’s Request No. 134. (Ex. 21 at 9, Waymo Request Nos. 168-169.) 

We apologize for the number of issues raised, but discovery has to be a two-way street—

even in this case. 

Respectfully submitted, 

Arturo J. González 

Counsel for Uber Technologies, Inc. 

and Ottomotto LLC 

cc: All Counsel of Record 

Special Master John Cooper 

Case 3:17-cv-00939-WHA Document 687 Filed 06/21/17 Page 7 of 7