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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

John L. Cooper (State Bar No. 050324) 

jcooper@fbm.com 

Farella Braun + Martel LLP 

235 Montgomery Street, 17th Floor 

San Francisco, California 94104 

Telephone: (415) 954-4400 

Facsimile: (415) 954-4480 

Special Master 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

WAYMO LLC,

Plaintiff, 

vs. 

UBER TECHNOLOGIES, INC. et al., 

Defendants. 

CASE NO. 3:17-cv-00939 

[PROPOSED] ORDER RE: SPECIAL 

MASTER’S MONITORING AND 

VERIFICATION PROTOCOL 

Pursuant to the Court’s May 20, 2017 Order (ECF No. 482), the Special Master and 

counsel for all parties conferred to agree upon a revised version of the Special Master’s proposed 

monitoring and verification protocol required by the Court’s May 11, 2017 Order (ECF No. 426). 

As a result of those efforts, the parties agreed upon the following protocol. 

The specific provisions of this protocol, including all references to Required Disclosures, 

as defined below, are intended to help the Special Master and the Court evaluate whether 

Defendants Uber Technologies, Inc., Ottomotto, LLC, and Otto Trucking, LLC (collectively 

“Defendants”) have complied with the Court’s May 11, 2017 Order. The provisions of this 

protocol, including the Required Disclosures, are not intended to alter the May 11 Order. 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

I. SPECIAL MASTER’S EX PARTE COMMUNICATIONS WITH DEFENDANTS 

Paragraph 7 of the May 11, 2017 Order (the “May 11 Order” or the “Order”) provides in 

part: 

Defendants shall keep complete and accurate records of their 

compliance with all of the foregoing requirements, including 

directives given to Anthony Levandowski and others. The special 

master shall monitor and verify said compliance. 

The Court has previously ordered that the Special Master “shall not engage in substantive 

ex parte communications with the Court or with the Parties except as ordered by the Court or as 

agreed by the parties.” ECF No. 235 at 2. 

The parties have agreed, and the Court likewise finds, that Special Master must engage in 

limited ex parte substantive communications with Defendants, including their officers and 

employees, in order to monitor and verify their compliance with the May 11 Order. Accordingly, 

it is hereby ordered that Special Master and his assistants may, pursuant to the below protocols, 

unilaterally interview Defendants and their employees and may engage with Defendants’ counsel 

to review and analyze Defendants’ efforts to comply with the Order. Any action taken by the 

Special Master pursuant to the protocols is not subject to any promise of confidentiality. For 

example, if the Special Master interviews an employee of Defendants, he must disclose the 

contents of that interview to Plaintiff as needed or as the Court requires. 

Defendants shall promptly notify Plaintiff of all ex parte communications, including the 

nature of the communication (for example, telephonic conference), the duration (if oral), the 

participants, and the general subject matter. To the extent the Special Master engages with 

Defendants’ counsel only (as opposed to interviewing Defendants’ officers and employees), the 

Special Master shall attempt to include counsel for Plaintiff in the communication when possible. 

Special Master and his assistants shall have immediate and constant access to the records 

of compliance the Court has ordered Defendants to compile. If the Special Master determines that 

Defendants’ efforts to comply with the May 11 Order are inadequate in any way, he will have the 

authority to confer with all parties about his initial determinations and request immediate 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

correction of any identified deficiencies. Any refusal by Defendants to bring their conduct or 

records into conformance with the Special Master’s comments shall be reported to the Court. 

As part of his discussions with the parties about Defendants’ compliance with the May 11 

Order, the Special Master will have the discretion to share with Plaintiff any information or 

documents that Defendants provide the Special Master pursuant to this Proposed Order and/or the 

May 11 Order. Subject to the 24-hour notice provision below, and the other provisions of this 

protocol, the Special Master will share with Plaintiff certain information that Defendants shall 

provide to the Special Master specific to Defendants’ compliance or non-compliance with the 

Court’s Order, as set forth below (“Required Disclosures”). The Required Disclosures are required 

only by this Proposed Order and protocol, and Defendants shall be required to provide the 

information to the Special Master as set forth below. The provisions of this protocol, including the 

Required Disclosures, are not intended to alter the May 11 Order or to suggest that all of the 

conduct suggested by the Required Disclosures must be carried out for Defendants to comply with 

that Order. 

The Special Master shall not share with Plaintiff the information or documents the Special 

Master obtains from Defendants, including the Required Disclosures, under this Proposed Order 

and protocol until he first notifies Defendants of his intent to do so and allows Defendants 

reasonable time, not to exceed 24 hours, to determine whether to make any confidentiality 

designations to the information under the protective order applicable to this case. For the 

avoidance of doubt, no action taken by the Special Master pursuant to the protocols, including but 

not limited to receiving information or documents from Defendants, is subject to any promise of 

confidentiality. For the purposes of this Proposed Order, the foregoing shall be referred to the 

“Disclosure Protocol.” 

II. PROHIBITION ON THE USE OF THE “DOWNLOADED MATERIALS” AND 

THEIR RETURN TO WAYMO 

The Court has ordered Defendants to “immediately and in writing exercise the full extent 

of their corporate, employment, contractual, and other authority to” prevent Anthony Levandowksi 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

and “all other officers, directors, employees, and agents of” Defendants from using the 

downloaded materials in any way (excepting their use by Defendants’ counsel and experts “in 

defending this civil action.” See ECF No. 426 at 23. The Court further ordered Defendants to 

“exercise the full extent of their corporate, employment, contractual, and other authority” to 

require Mr. Levandowksi and “all other officers, directors, employees, and agents of” Defendants 

to return the downloaded materials to Plaintiff or the Court by noon on May 31, 2017. See id. 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the May 11 Order requires that: 

1) Defendants shall immediately and continuously provide the Special Master the 

writings and communications Defendants are required to make to carry out this 

provision. 

2) Defendants shall submit to the Special Master, by 2 p.m. on May 26, 2017, a 

detailed summary of all of Defendants’ efforts to comply with these requirements. 

They shall submit an updated summary to the Special Master by 2 p.m. on May 30, 

2017. 

3) Upon his request to Defendants, Defendants shall immediately make their facilities 

available to the Special Master as per the May 11 Order, if deemed necessary to 

determine whether Defendants have complied with the Order. 

4) If the Special Master determines that he must interview any of Defendants’ 

employees or agents, including Anthony Levandowski, in order to verify 

Defendants’ compliance with this provision of the May 11 Order, Defendants shall, 

within 48 hours of the Special Master’s request, make the individual(s) available to 

the Special Master for an interview. 

5) Subject to the Disclosure Protocol, the Special Master will share with Plaintiff the 

records of compliance submitted by Defendants, and to the extent such records are 

not shared, the Special Master will provide Plaintiff a description of the records and 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

an explanation for why the records were not shared, so that Plaintiff may have the 

opportunity to request them and/or object to their being withheld. 

6) Subject to the Disclosure Protocol, the Special Master shall have the discretion to 

share with Plaintiff the Special Master’s findings from any visit of Defendants’ 

facilities and will disclose any suspected violations or failure to comply with the 

May 11 Order. 

7) Subject to the Disclosure Protocol, the following are the Required Disclosures 

under this Proposed Order and protocol that Defendants shall make to the Special 

Master by May 25: 

a) Whether Anthony Levandowski has permitted Defendants to inspect all 

electronic devices in his possession, custody, or control, and certified in 

writing that the electronic devices provided for inspection are in fact all 

such devices; 

b) Whether Defendants have inspected all of Anthony Levandowski’s personal 

electronic devices in order to locate the downloaded materials; 

c) Whether Anthony Levandowski has certified in writing that he does not 

have the downloaded materials; 

d) Whether Anthony Levandowski has certified in writing that he will not 

consult, copy, or otherwise use the downloaded materials; 

e) Whether Defendants have required all officers, directors, and employees 

who either 1) do or have done any work on behalf of any Defendant 

pertaining to LiDAR; 2) were originally officers, directors, or employees of 

Ottomotto or Otto Trucking; 3) were involved in any way with Uber’s 

acquisition of Ottomotto or the negotiations between Uber, on the one hand, 

and Ottomotto or Otto Trucking, on the other, related to a potential 

acquisition; or (4) were involved in the recruiting of Mr. Levandowski to 

Uber whether through seeking acquisition of Ottomotto or Otto Trucking or 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

otherwise, to certify in writing that they do not have the downloaded 

materials; 

f) By way of example only, if Anthony Levandowski refuses to certify in 

writing that he does not have the downloaded materials, and Defendants 

have not fired him, that would be a Required Disclosure. 

8) Defendants shall immediately rectify any deficiencies the Special Master identifies 

in Defendants’ compliance with the May 11 Order. The Special Master shall report 

to the Court any refusal by Defendants to do so. 

III. REMOVAL OF ANTHONY LEVANDOWKSI FROM DEFENDANTS’ LIDARRELATED ACTIVITIES 

The Court has ordered Defendants to remove Mr. Levandowski “from any role or 

responsibility pertaining to LiDAR” and to “take all steps in their power to prevent him from 

having any communication on the subject of LiDAR with any officer, director, employee, agent, 

supplier, consultant, or customer of defendants.” See ECF No. 426 at 23. Defendants further must 

prohibit Mr. Levandowksi “from consulting, copying, or otherwise using the downloaded 

materials in any way.” Id. For simplicity’s sake, this protocol and Proposed Order refers to these 

requirements as the “Levandowski Prohibitions.” Finally, Defendants must “instruct all their 

officers, directors, employees, agents, suppliers, consultants, and customers in writing” of the 

Levandowski Prohibitions and that the “officers, directors, employees, agents, suppliers, 

consultants, and customers” must notify the Special Master or the Court immediately of any 

suspected breach of the Levandowski Prohibitions. 

The parties agree that Defendants need not notify all users of Uber’s mobile application 

and/or other individuals who have no relation to the technology at issue in this case. Pursuant to 

the agreement of the parties, the Special Master envisions that Defendants will satisfy the May 11 

Order’s requirement to notify certain groups of individuals about the Levandowski Prohibitions if 

they instruct (1) all of Defendants’ officers, directors, and employees; (2) anyone who acts in any 

way on Defendants’ behalf with respect to any LiDAR-related activities; (3) any people or entities 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

who supply any products or services related in any way to the development, research, or use of 

LiDAR; and (4) any people or entities who purchase or otherwise obtain from Defendants any 

products or services related in any way to LiDAR. 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the May 11 Order, construed as discussed above, requires that: 

9) Defendants shall immediately and continuously provide the Special Master the 

records of compliance required by the May 11 Order. 

10) Upon his request to Defendants, Defendants shall immediately make their facilities 

available to the Special Master as per the May 11 Order, if deemed necessary to 

determine whether Defendants have complied with this Order. 

11) If the Special Master determines that he must interview any of Defendants’ 

employees or agents in order to verify Defendants’ compliance with this provision 

of the May 11 Order, Defendants shall, within 48 hours of the Special Master’s 

request, make the individual(s) available to the Special Master for an interview. 

12) Subject to the Disclosure Protocol, the Special Master will share with Plaintiff the 

records of compliance submitted by Defendants, and to the extent such records are 

not shared, the Special Master will provide Plaintiff a description of the records and 

an explanation for why the records were not shared, so that Plaintiff may have the 

opportunity to request them and/or object to their being withheld. 

13) Subject to the Disclosure Protocol, the Special Master shall have the discretion to 

share with Plaintiff the Special Master’s findings from any visit of Defendants’ 

facilities and will disclose any suspected violations or failure to comply with the 

May 11 Order. 

14) Subject to the Disclosure Protocol, the following are the Required Disclosures 

under this Proposed Order and protocol that Defendants shall make to the Special 

Master (by May 25): 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

a) Whether all of the following have received written instructions of the 

Levandowski Prohibitions: (1) all of Defendants’ officers, directors, and 

employees; (2) anyone who acts as Defendants’ agent with respect to any 

LiDAR-related activities; (3) any people or entities who supply any 

products or services related in any way to the development, research, or use 

of LiDAR ; and (4) any people or entities who purchase or otherwise obtain 

from Defendants any products or services related in any way to LiDAR; 

b) Whether Anthony Levandowski has any role or responsibility pertaining to 

LiDAR, including third-party LiDAR or LiDAR data; 

c) Whether Anthony Levandowski has any direct reports, or anyone in his 

chain of command, with any role or responsibility pertaining to LiDAR; 

d) Whether Anthony Levandowski has certified in writing that he will comply 

with the Levandowski Prohibitions; 

e) Whether Anthony Levandowski has authorization or access to any servers, 

repositories, or systems that host LiDAR-related material; 

f) Whether all servers, repositories, or systems that host LiDAR-related 

material are password protected with a password that Mr. Levandowski is 

prohibited from receiving; 

g) Whether Defendants have de-authorized, barred, or otherwise prohibited all 

of Anthony Levandowski’s personal devices (i.e., those not issued and 

controlled by Defendants) from accessing any of Defendants’ networks, 

servers, infrastructure, or systems. 

h) Whether Defendants have instructed security and/or reception personnel at 

each of Defendants’ offices or facilities that hosts LiDAR-related personnel 

or work that Anthony Levandowski must be searched before entering any 

such premises and that personal devices must be confiscated and not 

allowed into the office or facility; 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

i) Whether Defendants have instructed security and/or reception personnel at 

each of Defendants’ offices or facilities that hosts LiDAR-related personnel 

or work that Anthony Levandowski’s access to the physical premises must 

be limited to only those areas which do not include LIDAR-related work, 

including LiDAR devices, LiDAR data or LiDAR development; 

j) Whether, to the extent Anthony Levandowski refuses to comply with any of 

the above directives or certifications, Defendants have terminated his 

contractual, employment, and contractual relationships with Defendants; 

k) By way of example only, if Anthony Levandowski has authorization or 

access to any servers, repositories, or systems that host LiDAR-related 

material that would be a Required Disclosure. 

15) Defendants shall immediately rectify any deficiencies the Special Master identifies 

in Defendants’ compliance with the Order. The Special Master shall report to the 

Court any refusal by Defendants to do so. 

IV. DEFENDANTS’ DETAILED ACCOUNTING 

The Court has ordered Defendants to undertake a “thorough investigation [into] and 

provide a detailed accounting under oath” of “every person who has seen or heard any part of any 

downloaded materials, what they saw or heard, when they saw or heard it, and for what purpose.” 

ECF No. 426 at 24. The accounting, as further described in the May 11 Order, must be filed by 

noon on June 23, 2017. Id. 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the Order requires that: 

16) Defendants shall continuously provide the Special Master a roster of the individuals 

Defendants have interviewed. 

17) Until the accounting is filed, Defendants shall submit to the Special Master, by 2 

p.m. every Tuesday and Friday, a detailed summary of all Defendants’ efforts to 

comply with these requirements. 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

18) Upon his request to Defendants, Defendants shall immediately make their facilities 

available to the Special Master, as per the Order, if deemed necessary to determine 

whether Defendants have complied with this Order. 

19) If the Special Master determines that he must interview any of Defendants’ 

employees or agents in order to verify Defendants’ compliance with this provision 

of the May 11 Order, Defendants shall, within 48 hours of the Special Master’s 

request, make the individual(s) available to the Special Master for an interview. 

20) Subject to the Disclosure Protocol, the Special Master will share with Plaintiff the 

records of compliance submitted by Defendants, and to the extent such records are 

not shared, the Special Master will provide Plaintiff a description of the records and 

an explanation for why the records were not shared, so that Plaintiff may have the 

opportunity to request them and/or object to their being withheld. 

21) Subject to the Disclosure Protocol, the Special Master shall have the discretion to 

share with Plaintiff the Special Master’s findings from any visit of Defendants’ 

facilities and will disclose any suspected violations or failure to comply with the 

May 11 Order. 

22) Subject to the Disclosure Protocol, the following are the Required Disclosures 

under this Proposed Order and protocol that Defendants shall make to the Special 

Master (by June 8): 

a) Whether Defendants have interviewed in connection with this accounting 1) 

every person on any of Defendants’ privilege logs; 2) every employee of 

Defendants who has, at any time, worked for Ottomotto LLC or Otto 

Trucking LLC; 3) every officer, director, employee, and agent of 

Defendants who has ever performed any work on behalf of Defendants 

related in any way to the development, research, or use of LiDAR; and 4) 

every officer, director, employee, and agent of Stroz Friedberg who 

performed any work related to the Due Diligence Report. 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

b) Whether, in the interviews in connection with this accounting, Defendants’ 

asked the above individuals 1) what they saw or heard about the 

downloaded materials 2) when they saw or heard it, and 3) for what 

purpose. 

c) By way of example only, if persons on any of Defendants’ privilege logs 

have not been interviewed in connection with this accounting, that would be 

a Required Disclosure. 

23) Defendants shall immediately rectify any deficiencies the Special Master identifies 

in Defendants’ compliance with the Order. The Special Master shall report to the 

Court any refusal by Defendants to do so. 

V. DEFENDANTS’ LOG OF MR. LEVANDOWSKI’S COMMUNICATIONS 

REGARDING LIDAR 

Finally, the Court has ordered Defendants to compile and serve on Plaintiff a log “of all 

oral and written communications . . . wherein Anthony Levandowksi mentioned LiDAR to any 

officer, director, employee, agent, supplier, or consultant of defendants.” ECF No. 426 at 25. The 

chronological account, here called the “Levandowski Log,” must be served on Plaintiff by noon on 

June 23, 2017. Id. 

The Special Master’s monitoring and verification of Defendants’ compliance with this 

portion of the Order requires that: 

24) On Wednesday, May 24, 2017, and every Wednesday thereafter until service of the 

Levandowski Log, Defendants shall submit to the Special Master a detailed 

summary of all Defendants’ efforts to comply with these requirements and the 

chronology as it exists at the time of the update to the Special Master. 

25) If the Special Master determines that he must interview any of Defendants’ 

employees or agents in order to verify Defendants’ compliance with this provision 

of the May 11 Order, Defendants shall, within 48 hours of the Special Master’s 

request, make the individual(s) available to the Special Master for an interview. 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

26) Subject to the Disclosure Protocol, the Special Master will share with Plaintiff the 

records of compliance submitted by Defendants, and to the extent such records are 

not shared, the Special Master will provide Plaintiff a description of the records and 

an explanation for why the records were not shared, so that Plaintiff may have the 

opportunity to request them and/or object to their being withheld. 

27) Subject to the Disclosure Protocol, the Special Master shall have the discretion to 

share with Plaintiff the Special Master’s findings from any visit of Defendants’ 

facilities and will disclose any suspected violations or failure to comply with the 

May 11 Order. 

28) Defendants shall continuously provide the Special Master a roster of the individuals 

Defendants have interviewed. 

29) Subject to the Disclosure Protocol, the following are the Required Disclosures 

under this Proposed Order and protocol that Defendants shall make to the Special 

Master (by June 8): 

a) Whether Defendants have interviewed in connection with this accounting 1) 

every person on any of Defendants’ privilege logs; 2) every employee of 

Defendants who has, at any time, worked for Ottomotto LLC or Otto 

Trucking LLC; 3) every officer, director, employee, agent, supplier, or 

consultant of Defendants who has ever performed any work on behalf of 

Defendants related in any way to the development, research, or use of 

LiDAR; and 4) every officer, director, employee, and agent of Stroz 

Friedberg who performed any work related to the Due Diligence Report. 

b) Whether Defendants have reviewed, in connection with this accounting, 

every written communication in Defendants’ possession, custody, or control 

between Anthony Levandowski and any person, and every document 

written by, contributed to, or otherwise authored by Anthony Levandowski. 

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[PROPOSED] ORDER RE: SPECIAL MASTER’S MONITORING AND VERIFICATION PROTOCOL 

Case No. 3:17-cv-00939-WHA 

c) By way of example only, if Defendants have not reviewed every email in 

their possession, custody, or control between Anthony Levandowski and 

any person in connection with this accounting, that would be a Required 

Disclosure. 

30) Defendants shall immediately rectify any deficiencies the Special Master identifies 

in Defendants’ compliance with the Order. The Special Master shall report to the 

Court any refusal by Defendants to do so. 

DATED: May 23, 2017 /s/ John L. Cooper

Special Master

John L. Cooper

IT IS SO ORDERED.

DATED: ________________ 

HON. WILLIAM ALSUP 

UNITED STATES DISTRICT COURT JUDGE 

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