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April 3, 2017

Honorable William H. Alsup

U.S. District Court for the Northern District of California

San Francisco Courthouse, Courtroom 8 - 19th Floor

450 Golden Gate Avenue, San Francisco, CA 94102

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

Dear Judge Alsup:

Plaintiff Waymo respectfully submits this discovery letter brief to inform the Court of 

Defendants’ (“Uber”) willful violation of the Court’s March 16 Expedited Discovery Order.

Uber’s Willful Violation of the Court's Order. On March 16, the Court ordered Uber to 

produce several categories of documents regarding files and documents downloaded by Mr. 

Levandowski while still at Waymo, including the devices used for the downloads, “all 

subsequent emails, memoranda, PowerPoints, text messages, or notes that have forwarded, used, 

or referred to any part of said downloaded material,” and an explanation of any modifications, 

deletions, or destructions of the downloaded materials. (Dkt. 61, ¶ 4.) At the March 29 hearing, 

Uber stated it would be “produc[ing] documents” responsive to the Court’s Order. The Court 

responded: “I didn’t just fall off the turnip truck. I know what you’re telling me. That means 

you’re not going to produce everything.” (Id., 4:24-5:1.) The Court also made clear its Order 

required Uber to produce documents in Mr. Levandowski’s “personal” possession. (Tr. 12:6-11 

(“Uber has the authority to say to its employees, ‘If you have anything at home you bring it in 

here, give it to Mr. González, and he will turn it over to the Court.’ You have the authority to do 

that. And you also have the authority to say, ‘And if you don't do that, you’re fired.’”).)

Despite the Court’s admonitions, Uber willfully ignored the Court’s Order. Uber failed to 

produce the more than 14,000 files and documents downloaded by Mr. Levandowski, as well as 

the hardware used for those downloads. Late Friday night, March 31, even though Mr. 

Levandowski remains Uber’s Vice President of Engineering in charge of running Uber’s selfdriving car program, Uber claimed it did “not review[] any documents or files that belong to Mr. 

Levandowski personally.” So there is no way that Uber could have determined whether it 

located “all subsequent emails, memoranda, PowerPoints, text messages, or notes that have

forwarded, used, or referred to any part of said downloaded material.” (Dkt. 61 ¶ 4.) Notably,

Uber also did not review the 14,000 files that Waymo has made available for inspection since

March 22, further guaranteeing that it could not ascertain any “use” of those documents by Uber. 

Uber then made a document production minutes before midnight that had no media used for the 

downloads of Waymo documents, no emails, memoranda, PowerPoints, text messages, or notes 

of any kind, and no documents or any statement regarding the deletion, destruction, or 

modification of the downloaded files. There was no privilege log. Uber’s production contained 

slightly over 900 files, all of which had been stripped of custodial information, file names, and 

original metadata (Uber has said they will correct for the metadata, but has not yet done so). 

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Most files lacked any file extension, and most of the remaining files required special software 

and/or supporting directories and libraries to view that Uber did not provide. 

Uber also willfully failed to conduct a reasonable search for responsive documents. Uber 

improperly limited its search parameters to (1) the file names of the 14,000 downloaded files, (2) 

the MD5 hash values of the downloaded files, and (3) “search terms.” Obviously, a search for 

the downloaded files based on the file names would miss files with changed names. And, as 

Waymo previously told Uber, a search based on the MD5 hash value would miss any file whose 

contents had been even slightly modified. Neither search method would identify any subsequent

documents containing the contents of the downloaded files. Uber also limited its searched 

sources to (1) one document repository and (2) the “Uber computer records” of Mr. 

Levandowski, Mr. Kshirsagar, Mr. Raduta, and “seven other randomly selected Uber employees 

who work in the autonomous vehicle space, and who formerly worked at Google and/or Waymo 

on Chauffeur or LiDAR.” Searching only these sources, however, misses any emails or text 

messages that use or refer to the downloaded materials, any hard copy documents that use or 

refer to the downloaded materials, and any electronic files or documents of any type on any of 

Uber’s other shared servers or custodial computers. 

Waymo has repeatedly asked Uber’s counsel to return its stolen documents -- in its complaint, its 

PI papers, in Court and by letter, and Uber has never substantively responded. After Uber’s 

midnight production, Waymo promptly asked to meet and confer again on Saturday, raising its 

concerns with Uber’s non-production. Uber again did not respond. On Sunday morning April 2, 

Waymo repeated its request to confer, offering a window of several hours. Uber again refused to 

meet and confer, sending a belated email suggesting a call after the completion of a deposition 

today and stating it would send a written response in the morning. But when the deposition 

ended this morning at around 11 a.m., Uber refused to meet and confer again and again promised 

a written response would be forthcoming in an hour. By the time of this filing, Uber still has not 

made itself available for a meet and confer. 

Adverse Inference Is the Appropriate Remedy for Uber’s Willful Violations. The Court 

should draw an adverse inference from Uber’s willful failure to comply with the Court’s order of 

production. Uber’s conduct plainly is designed to delay the expedited proceedings ordered by 

this Court and stonewall Waymo’s request for preliminary relief. Specifically, for purposes of 

Waymo’s motion for preliminary injunction, the Court should issue an adverse inference that the 

downloaded files were and continue to be used by Uber in the development of its custom LiDAR 

system. The Court has the authority to provide such relief, as it may “direct[] that . . . designated 

facts be taken as established for purposes of the action.” Fed. R. Civ. P. 37(b)(2)(A)(i). Courts 

have imposed more severe sanctions for failure to comply with a court order. See, e.g., Martinez 

v. Extra Space Storage, Inc., No. C 13–00319 WHA, 2013 WL 5732967, at *2-*3 (N.D. Cal. 

Oct. 22, 2013) (granting terminating sanctions under Fed. R. Civ. P. 37(b) for failure to provide 

discovery, and noting that “[f]ailure to produce documents as ordered, however, is considered 

sufficient prejudice” justifying such sanctions); First Fin. Sec., Inc. v. Freedom Equity Grp., 

LLC, No. 15-cv-1893-HRL, 2016 WL 5870218, at *5-*6 (N.D. Cal. Oct. 7, 2016) (granting an 

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adverse inference where, inter alia, defendant failed to produce data in native format despite a 

court order to do so). 

To the extent Uber tries to excuse its noncompliance on the grounds that Mr. Levandowski has 

invoked the Fifth Amendment and refused to provide Uber with documents or assistance, 

Waymo notes that Mr. Levandowski remains – to this day – an Uber executive and in charge of 

its self-driving car program. Uber has ratified Mr. Levandowski’s behavior and is liable for it. 

Cal. Civ. Code § 2310 (“A ratification can be made . . . by accepting or retaining the benefit of

the act, with notice thereof.”); Ajaxo Inc. v. E*Trade Grp., Inc., 135 Cal.App.4th 21, 67-68 

(2005) (conduct of an employee who misappropriated trade secrets was ratified where ratifying 

company’s “top management had the opportunity to know of and either ignore or actually 

approve of” the theft).1 Uber’s counsel has sufficient access to Mr. Levandowski to represent to 

the Court and the media that he has a “good story to tell.” (3/29/17 Hr’g Tr. at 16:7-11.) Indeed, 

the same attorneys representing Uber also represent Mr. Levandowski personally in the 

Levandowski arbitration, and these attorneys presently argue (without support) that this suit 

should be merged with that arbitration. It is these same attorneys who simultaneously represent 

to this Court that they have not and cannot review Mr. Levandowski’s files. And it is these same 

attorneys who nevertheless had no difficulty finding a signed version of Mr. Levandowski’s 

employment agreement in making an arbitration demand last Friday on behalf of Uber.

2

 

Should the Court not be inclined to draw an adverse inference from Uber’s conduct, Waymo 

respectfully requests an order compelling Uber, within 24 hours of the Court’s order, to: (1) fully 

and completely comply with the Court’s expedited discovery order; (2) search all of Uber’s 

document repositories and employees of its autonomous vehicle unit with a list of 15 search 

terms provided by Waymo; (3) provide an accounting and chain of custody detailing what, 

exactly, has been done with Waymo’s documents since the filing of its complaint, including 

when the documents were first located, how the documents were secured, whether the documents 

were reviewed or used in any other way, where all copies of the documents have resided up to 

the point of their return to Waymo, and a detailing of each person (including individual 

attorneys) who have had access to the documents, when they had access and what exactly each 

individual did with any of the documents; and (4) an inspection of Uber’s LiDAR system(s), and 

documents sufficient to show the operation of Uber’s LiDAR system(s). 

 

1

 Whether Mr. Levandowski’s criminal attorneys file a motion to suspend production or 

privilege log requirements pursuant to the Court’s Order Re Due Diligence Report is immaterial 

to this letter brief. Uber is a corporate entity with no Fifth Amendment rights. Mission St., San 

Francisco, Cal., 2014 WL 492481, at *1-*3 (N.D. Cal. Feb. 4, 2014). An adverse inference may 

apply against Uber regardless of whether the Court grants Mr. Levandowski’s attempt to invoke 

the Fifth Amendment. LiButti v. U.S., 107 F.3d 110, 120-24 (2nd Cir. 1997) (determination 

whether an adverse inference applies to a party when a non-party invokes the Fifth Amendment 

privilege evaluated in light of four non-exclusive factors); Fed. R. Civ. P. 37(b)(2)(A)(i).

2

 Amazingly, Uber’s counsel have not listed Levandowski as a party to this new arbitration 

demand, instead listing Uber as the sole party seeking relief. 

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Waymo’s Letter Brief re: Defendants’ Deficient Document Production

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Respectfully,

/s/ Charles K. Verhoeven

Charles K. Verhoeven

QUINN EMANUEL URQUHART & SULLIVAN, LLP

Counsel for Waymo LLC

CC: Counsel of record (via ECF)

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