01980-00104/9280434.5

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May 15, 2017

VIA ECF

Magistrate Judge Jacqueline Scott Corley

USDC, Northern District of California

San Francisco Courthouse 

Courtroom F - 15th Floor

450 Golden Gate Avenue, San Francisco, CA 94102

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

Dear Magistrate Judge Corley:

In its May 11, 2017 Order Granting in Part and Denying in Part Plaintiff’s Motion for Provisional 

Relief (“Order”), the Court granted Waymo “further expedited discovery in aid of possible further 

provisional relief” and stated: “[a]fter Waymo has exhausted its expedited discovery, it may 

continue with normal discovery.” (Order, at 26) (emphasis added). The Order makes clear that 

Waymo is entitled to take both expedited and normal discovery on issues relevant to Waymo’s

trade secret misappropriation claims, and that Waymo may take expedited and normal discovery

contemporaneously and then “continue” with normal discovery after expedited discovery is 

exhausted. Nevertheless, Defendants contend that the Order requires Waymo to choose between 

taking expedited or normal discovery now, and that if Waymo chooses expedited discovery, 

Waymo’s normal discovery—including third party subpoenas and document requests already 

served—is stayed. The parties met and conferred on this issue with the Special Master on May 

13. With the guidance of the Special Master, the parties agreed to submit simultaneous letter briefs

on this issue. Waymo respectfully requests that the Court confirm that Waymo’s normal discovery 

on its trade secret misappropriation claims or any other claims is not stayed and may be taken 

contemporaneously with expedited discovery.

First, Defendants’ position that the Order stayed normal discovery on any claims is wrong. 

Essentially, Defendants are arguing that Waymo must choose between taking the expedited 

discovery granted in the Court’s Order, or proceeding with normal discovery. But, nowhere in the 

Order does it say that Waymo must make a choice or that Waymo’s normal discovery is stayed. 

Rather, Paragraph 6 of the Order makes clear that the Court granted Waymo expedited discovery

on the trade secret misappropriation claims in addition to normal discovery. There is no other 

reasonable way to interpret the sentence: “[a]fter Waymo has exhausted its expedited discovery, it 

may continue with normal discovery.” (Order, at 26.) Saying that Waymo “may continue with 

normal discovery” after it “has exhausted expedited discovery” can only mean that Waymo may 

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take both expedited and normal discovery. Further, if the Court intended for normal discovery to 

be stayed, it would have said so. Instead, the Court’s statement that Waymo “may continue with

normal discovery” suggests that Waymo may start normal discovery before expedited discovery

is exhausted, and then continue with normal discovery after expedited discovery is complete. Had 

the Court intended for the expedited and normal discovery to be staged, the Court would have said: 

“After Waymo has exhausted its expedited discovery, it may take normal discovery.” 

Second, requiring Waymo to stagger expedited and normal discovery will prejudice Waymo. With 

a trial date of October 2, and a proposed July 21 close of fact discovery, Waymo cannot postpone

starting normal discovery. Indeed, with only a little over two months remaining in fact discovery, 

Waymo already served 152 document requests and two third party subpoenas1and expects to serve 

more. Defendants seek to avoid this discovery and so contend that it should be withdrawn. 

Waymo, however, cannot wait to seek this discovery until after expedited discovery is complete 

because there will not be sufficient time before the end of fact discovery to do so. As to discovery 

served on Defendants, Waymo expects that Defendants will drag their feet and attempt to conceal 

relevant documents, requiring motion practice. As the Court recognized, there has been “a 

proliferation of discovery battles, motion practice, and relentless concealment of likely probative 

evidence, both documentary and testimonial, from Waymo’s view.” (Order, at 8) (emphasis 

added). If Waymo is forced to wait to seek normal discovery, it will not have sufficient time for 

disputes to be resolved through motion practice. Similarly, with respect to third party discovery, 

Waymo should not have to wait to take discovery because it often takes time and motion practice 

to obtain third party discovery. Moreover, some of the third parties Waymo intends to subpoena 

are abroad, and Waymo must comply with the applicable procedures to obtain foreign discovery, 

which takes time. Waymo cannot delay in seeking normal discovery from Defendants and third 

parties to develop its case for trial, and should not be required to do so. 

Requiring Waymo to stage its discovery would also be prejudicial because Defendants are 

themselves seeking normal discovery. On March 12, Uber and OttoMotto served 146 document 

requests on Waymo. It cannot be that, in granting in part Waymo’s Motion for a Preliminary 

Injunction and giving Waymo expedited discovery in furtherance of seeking additional provisional 

relief, the Court intended to freeze Waymo’s pursuit of normal discovery, but permit Uber and 

OttoMotto to pursue normal discovery at full speed. Put another way, it cannot be that Waymo is 

only permitted to serve 28 document requests now, and cannot serve any more relating to any of 

its causes of action until after expedited discovery is complete (weeks from now), but Defendants 

can serve 146 document requests (or more) immediately. 

The only justification Defendants provided for requiring Waymo’s normal discovery to be stayed 

is purported burden on Defendants – specifically, that they will be “inundated” by too much 

discovery. Defendants, however, cannot be heard to complain given their stonewalling discovery

conduct thus far, which the Court recognized in its Order. (Order, at 8.) It is Defendants’ own 

fault that, by withholding so many relevant documents during the original expedited discovery

period, they now find themselves having to produce so many documents in the limited time 

remaining in fact discovery. Staying Waymo’s normal discovery to avoid “inundating”

 

1

 This does not include the subpoena served on Anthony Levandowski during the expedited 

discovery in connection with Waymo’s motion for a preliminary injunction.

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Defendants with discovery obligations would turn the Court’s Order granting in part Waymo’s 

Motion for a Preliminary Injunction on its head.2 

Moreover, although they did not raise this argument when the parties met and conferred, 

Defendants may argue that only Waymo’s normal discovery on its trade secret misappropriation 

claims needs to be stayed, but that Waymo can proceed with normal discovery on its other causes 

of action. This, however, would not address Defendants’ concerns regarding being “inundated”

with discovery because Waymo would be permitted to serve expedited discovery on the trade 

secret misappropriation claims contemporaneously with normal discovery on the other causes of 

action. Further, this would likely raise more disputes and motion practice over whether or not 

normal discovery relates to the trade secret misappropriation claims. If, for example, expedited 

and normal discovery on Waymo’s trade secret misappropriation claims is staged, and Waymo 

serves normal discovery relevant to its unfair competition claims now, Defendants may argue that 

discovery is also relevant to the trade secret misappropriation claims and should be stayed pending 

expedited discovery. The parties would then need to seek Court relief to resolve such disputes. It 

is more clear and consistent with the Court’s Order for this Court to confirm that Waymo’s normal 

discovery on all of its causes of action, including the trade secret misappropriation claims, is not 

stayed pending expedited discovery. 

Waymo respectfully requests that the Court confirm that Waymo is entitled to take both expedited 

and normal discovery on its trade secret misappropriation claims, and that Waymo’s normal 

discovery on any of its causes of action, including the trade secret misappropriation claims, is not 

stayed pending expedited discovery.

Respectfully,

/s/ Charles K. Verhoeven

Charles K. Verhoeven

cc: All counsel of record; Special Master John Cooper

01980-00104/9280434.5

 

2

 Indeed, that appears to be just what Defendants are trying to do. In a May 15 public statement 

regarding the Court’s Order, Uber stated: “We are pleased with the court’s ruling that Uber can 

continue building and utilizing all of its self-driving technology, including our innovation around 

lidar.” (https://www.theguardian.com/technology/2017/may/15/uber-self-driving-cars-waymogoogle.) Although the Court found that “Waymo has shown at least serious questions going to 

the merits concerning whether some information within the 14,000-plus downloaded files has 

been used by defendants and qualifies for trade secret protection,” (Order, at 13-16), Uber’s 

public statement is that it is “business as usual” following the Court’s Order.

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