G Neel Chatterjee Goodwin Procter LLP GOODWIN +1 650 752 3256 

NChatterjee@goodwinlaw.com 

135 Commonwealth Drive 

Menlo Park, CA 94025 

August 2, 2017 

VIAECF 

The Honorable Jacqueline Scott Corley 

United States Magistrnte Judge 

United States District Comi for the No1ihem District of California 

San Francisco Comihouse Comiroom F - 15th Floor 

450 Golden Gate A venue 

San Francisco, CA 94102 

goodwinlaw.com 

+1 650 752 3100 

REDACTED VERSION OF 

DOCUMENT SOUGHT TO 

BE SEALED 

Re: Wavmo LLC v. Uber Technologies. Inc. et al., N.D. Cal. Case No. 3:17-cv-00939-WHA 

Dear Judge Corley, 

Defendant Otto Trncking, LLC ("Otto Trncking") respectfully submits this letter brief requesting that the 

Comi order Lany Page to appear for two homs of additional deposition time and to produce responsive 

communications due to Waymo's violation of Judge Alsup's Orders regarding permissible deposition 

conduct dming Mr. Page 's July 17 deposition. 

cc: Counsel of Record (via ECF), Special Master Cooper 

Respectfully Submitted, 

Isl Neel Chatterjee 

Neel Chatte1jee (SBN 173985) 

GOODWIN PROCTER LLP 

Attorneys for Defendant 

Otto Trncking LLC 

Case 3:17-cv-00939-WHA Document 1069 Filed 08/02/17 Page 1 of 5
1 

Otto Trucking requests an additional two hours of deposition time with Larry Page and a court order 

requiring counsel for Mr. Page and Waymo to produce responsive communications in his possession, and 

to comply with Judge Alsup’s Orders. There is no question Larry Page is an important witness. As this 

Court has already found, he was directly involved in Google’s self-driving car project. He had many 

interactions with Anthony Levandowski relating to Chauffeur and other projects he funded, including 

discussions about the strategy for Chauffeur in the days leading up to Mr. Levandowski’s departure. Mr. 

Levandowski sent Mr. Page a personal email informing him of his departure from Google instead of his 

superiors. But during the four hours the Court allowed for Mr. Page’s deposition, counsel for Waymo and 

Mr. Page obstructed Defendants’ ability to examine Mr. Page by asserting speaking objections and 

refusing to provide required documents in violation of Judge Alsup’s Orders. To remedy these violations, 

the Court should order Mr. Page to return for additional examination and produce responsive documents. 

I. Mr. Page’s Counsel Refused to Produce Documents Used to Refresh Mr. Page’s Testimony, 

in Violation of Judge Alsup’s Orders. 

Judge Alsup has ordered: “In preparing deponents, defending counsel shall segregate and retain all 

materials used to refresh [the deponent’s] memories and shall provide them to examining counsel at the 

outset of the deposition.” Supplemental Order to Order Setting Initial Case Management Conference in 

Civil Cases Before Judge William Alsup (“Standing Order”) ¶ 20 (emphasis added). The reason for this 

Order is equally clear: examining counsel need to know what documents the deponent relied on to 

prepare for the deposition and are entitled to ask questions about those documents. 

Waymo and Alphabet did not comply with this requirement. They provided no documents at the outset of 

the deposition. However, during the deposition, Mr. Page explained that he reviewed documents to help 

refresh his recollection in preparing for the deposition. But when Arturo González, examining counsel, 

requested a copy of those documents, counsel for Mr. Page refused to provide them. 

[MR. GONZÁLEZ]: And did those documents help refresh your recollection about events that 

occurred many years ago? 

MR. VAN NEST: That’s overbroad. I’ll object to the form of the question. 

THE WITNESS: I mean, I’m sure that they helped my recollection somewhat. 

MR. GONZÁLEZ: They helped refresh it because these events are events that took place a long 

time ago? 

A: Yeah. 

MR. GONZÁLEZ: Counsel, I think per Judge Alsup’s standing order, we’re entitled to see those 

documents. 

MR. VAN NEST: I don’t think so, Counsel, but we can debate that at a later time. 

MR. GONZÁLEZ: Okay. Fine. Fair enough. Just so the record is clear. 

MR. VAN NEST: I disagree, but— 

MR. GONZÁLEZ: So that the record is clear, we’re—we’re asking for them, and Counsel is 

declining to provide them. 

Deposition Transcript of Larry Page, Exh. 1 at 90:23–92:4. Not until almost two weeks later—on July 30, 

2017—did Waymo finally identify the documents Mr. Page used. Exh. 2. It included three documents 

outside of Otto Trucking’s exhibits for the deposition. Id. Because of the delayed production, Defendants 

had no opportunity ask Mr. Page questions about the documents, nor were they able to follow up on how 

Mr. Page prepared for the deposition. Defendants request leave from the Court to cure this violation by 

revisiting Mr. Page’s deposition. See In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No 1917, 

2015 WL 12942210, at *5 (N.D. Cal. May, 29, 2015) (ordering witness to be deposed again and counsel 

Case 3:17-cv-00939-WHA Document 1069 Filed 08/02/17 Page 2 of 5
to pennit questioning on documents that refreshed witness' recollection). 

II. Mr. Page's Counsel Levied Speaking Objections Throughout and Also Limited the Scope Of 

Defendants' Examination. 

Judge Alsup's Standing Order requires that "[d]eposition objections must be as to privilege or form only . 

Speaking objections are prohibited." Standing Order ii 19 (emphasis added). This rnle is sound. 

Speaking objections muddle the record. They coach the witness's answers. And most impo1iantly, they 

obstiuct the examining counsel's ability to question the witness. But in spite of the Comi 's prohibition, 

Mr. Van Nest levied exactly those objections- and did so over 30 times. See, e.g., Exh. 1 at 27:22, 

35:20-21, 45:20-21, 75:13- 14, 77:14, 91:4-5, 91:22- 23, 92:1, 95:8, 104:6-7; 119:21-22, 119:25, 120:3, 

120:21-121:12, 138:13, 152:11, 152:19-153:2, 176:4-6, 190:2, 190:18- 21 , 190:24-25, 191:6-9, 193:10-

13, 193:18- 22, 200:14-15, 206:2- 6, 207:20-24, 211:18-19, 215:20- 21 , 216:12- 15, 216:23- 24. These 

speaking objections interfered with Defendants' ability to exa1nine Mr. Page and, in many instances, 

coached Mr. Page's responses as he then restated Mr. Van Nest's objections in the f01m of an answer. 

See, e.g., id. at 35:20-24, 101 :4-8, 102:12- 17, 119:21-120:8. 

In addition, Mr. Van Nest's objections improperly liinited the scope of Defendants' questions. This Comi 

explained in its July 7 Order that the reasons for li1niting discove1y with respect to Mr. Page are no longer 

present. (Dkt. No. 833 at 2) (explaining that the Comi 's previous apex "rnling was based upon the need 

for liinited discove1y related to the preliinina1y injunction hearing and was not a rnling that Mr. Page 

would not be deposed during the merits discove1y. No such liinitations are present now."). Centi·al to this 

case are Waymo's allegations that Anthony Levandowski stole ti·ade secrets and used them in Defendants' 

technology. During Mr. Chatte1jee's examination, he asked Mr. Page about his knowledge of these issues 

in this lawsuit, including Mr. Page's relationship with Mr. Levandowski. Mr. Van Nest responded by 

casting improper inte1jections, wrongly clai1ning that Mr. Chatte1jee's questions were "far afield" from 

what the Comi authorized. See, e.g., Exh. 1 at190: 18- 21, 193:10- 13, 193:18- 20). These repeated 

admonitions from Mr. Van Nest are improper under both the Standing Order and this Comi's July 7 Order 

regarding Mr. Page's exainination. See Doe v. Xytex Corp., No. C 16-02935 WHA, 2016 WL 7009226, at 

*2, *4 (N.D. Cal. Dec. 1, 2016) (Alsup, J.) (speaking objections on scope of questioning were improper 

but ordering hearing where defendant could exainine the witness in comi instead of second deposition). 

III. Waymo Did Not in Good Faith Prepare Mr. Page for This Deposition. 

Judge Alsup's Standing Order requires that"[ d]eponents and their counsel must make a good-faith effo1i 

to prepare for depositions and to refresh witness memories on impo1iant matters in the suit about which 

the witness reasonably should be expected to have knowledge." Id. ii 20. During Mr. Page's deposition, 

Defendants asked questions on topics that were within Mr. Pa e's knowled e relatin to Chauffeur, 

relating to Mr. Levandowski' s conti·ibutions to and relatin to this 

liti ation. Several witnesses have con oborate 

Yet during the deposition Mr. Page consistently disclaimed knowledge about any of these topics. Mr. 

Page could not recall any ti·ade secrets that are at issue in this litigation, despite his involvement in 

Chauffeur. See Exh. 1at 194:6-18, 53- 18. Mr. Page could not recall whether Waymo was suing Mr. 

2 

Case 3:17-cv-00939-WHA Document 1069 Filed 08/02/17 Page 3 of 5
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Levandowski for trade secret misappropriation. See id. at 189:12–191:10. Mr. Page could not recall the 

amount that Mr. Levandowski was paid from the Chauffeur program even thought that amount as over 

$100 million. See id. at 12:16–23, 23:16–23:12. Mr. Page could not recall information about Otto 

Trucking. See id. at 160:10–162:24 (“Q. Do you know what Otto Trucking is? A. Apparently not, I 

guess.”). And Mr. Page could not recall Anthony Levandowski’s involvement 

. See id. at 33:20–34:9, 77:9–

79:5, 135:1–137:9. 

This was not a good-faith effort to prepare the witness. Indeed, Mr. Page conceded that he only met with 

his counsel for “[a] couple of hours” to prepare for his deposition, and reviewed only about a dozen 

documents during that time. Ex. 1 at 131:15-22; Ex. 2. This was unacceptable. Waymo’s violation of 

the Standing Order prevented Defendants from being able to obtain fulsome testimony from Mr. Page. 

The only remedy is to recall Mr. Page for deposition. 

IV.Waymo Has Stonewalled Defendants’ Ability to Examine Any Information Stored on

Mr. Page’s Phone or Phones.

Finally, Otto Trucking has sought from Waymo the production of relevant information stored on Mr. 

Page’s cell phone or phones. In discovery and Otto Trucking’s Amended Notice of Deposition of Mr. 

Page, Defendants requested communications responsive to this dispute, including communications in Mr. 

Page’s possession relating to any trucking business of Mr. Levandowski’s. Exh. 6. But to this day, 

Waymo has stonewalled Defendants’ ability to examine any such information despite their vigorous 

efforts to obtain text messages from other witnesses who communicated with Mr. Levandowski. 

Waymo cannot seriously dispute that the information is relevant. To the extent Mr. Page’s cell phones 

contain communications requested by Defendants, they go to the heart of what Mr. Page knew or did not 

know about Ottomotto and Otto Trucking, when he learned that information, whether that information 

was shared with others including others at Google, Alphabet, or Waymo, and the nature of his relationship 

with Mr. Levandowski both during Mr. Levandowski’s employment at Google and after his departure, 

among other things. Said differently, this information is necessary to Defendants’ defense. 

Waymo’s sole objection other than relevance to producing to even searching for this information on Mr. 

Page’s phone is that Mr. Page is CEO of Alphabet, not Waymo. This argument lacks merit. Waymo 

previously represented to this Court that for purposes of discovery in this litigation it would not withhold 

information on the basis that Google, Alphabet, or Waymo are separate entities. This Court relied on, and 

accepted, that representation. See (Dkt. No 808) (“The Court understands that Waymo has represented 

that it will not object to any discovery request on the grounds that the responsive documents are in the 

possession, custody or control of Google or Alphabet”). Thus, for Waymo to now claim that it cannot 

produce information stored on Mr. Page’s phone because he is CEO of Alphabet contravenes not only its 

own representations to this Court, but also this Court’s Order itself. 

Defendants request that the Court require Waymo to search Mr. Page’s phones for information in the 

Amended Notice of Deposition. To the extent that responsive information exists, Defendant should have 

the opportunity to examine Mr. Page on this information. 

* * * 

For the foregoing reasons, Otto Trucking requests that the Court order the production of any responsive 

text messages in Mr. Page’s phone and for two additional hours for Otto Trucking to depose Mr. Page. 

Case 3:17-cv-00939-WHA Document 1069 Filed 08/02/17 Page 4 of 5
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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 August 2, 

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 2nd day of 

August 2017. 

/s/ Neel Chatterjee 

 Neel Chatterjee 

Case 3:17-cv-00939-WHA Document 1069 Filed 08/02/17 Page 5 of 5