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MOTION IN LIMINE TO EXCLUDE TESTIMONY

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

Neel Chatterjee (SBN 173985) 

nchatterjee@goodwinlaw.com

GOODWIN PROCTER LLP

135 Commonwealth Drive 

Menlo Park, California 94025 

Tel.: +1 650 752 3100 

Fax.: +1 650 853 1038 

Brett Schuman (SBN 189247) 

bschuman@goodwinlaw.com

Shane Brun (SBN 179079) 

sbrun@goodwinlaw.com

Rachel M. Walsh (SBN 250568) 

rwalsh@goodwinlaw.com

GOODWIN PROCTER LLP

Three Embarcadero Center 

San Francisco, California 94111 

Tel.: +1 415 733 6000 

Fax.: +1 415 677 9041 

Hong-An Vu (SBN 266268) 

hvu@goodwinlaw.com

GOODWIN PROCTER LLP

601 S. Figueroa Street, 41st Floor 

Los Angeles, California 90017 

Tel.: +1 213 426 2500 

Fax.: +1 213 623 1673 

Attorneys for Defendant: Otto Trucking LLC

REDACTED VERSION OF 

DOCUMENT SOUGHT TO BE SEALED 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

Waymo LLC, 

Plaintiff, 

v. 

Uber Technologies, Inc.; Ottomotto LLC; Otto 

Trucking LLC, 

Defendants. 

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

MOTION IN LIMINE TO EXCLUDE 

TESTIMONY OF GARY BROWN AND 

KRISTINN GUDJONSSON 

Date: September 27, 2017 

Time: 8:00 a.m. 

Courtroom: 8 (19th Floor) 

Judge: Hon. William Alsup 

Filed/Lodged Concurrently with: 

1. Declaration of Hong-An Vu; and

2. [Proposed] Order

Trial: October 10, 2017 

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-iMOTION IN LIMINE TO EXCLUDE TESTIMONY 

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TABLE OF CONTENTS 

Page 

I. WAYMO’S INVESTIGATION CONTAINS NUMEROUS INVESTIGATIVE 

FAILURES. ...............................................................................................................................1 

A. Mr. Brown and Mr. Gudjonsson Did Not Investigate All of Mr. 

Levandowski’s Computers. ............................................................................................2 

B. Mr. Brown and Mr. Gudjonsson Did Not Determine Mr. Levandowski’s 

“Usual” Conduct Before Reaching Their Conclusions. .................................................2 

C. Mr. Brown and Mr. Gudjonsson Did Not Investigate the “Usual” Conduct of 

Engineers on the Chauffeur Team. ................................................................................4 

D. Mr. Brown and Mr. Gudjonsson Lack Knowledge of the SVN Server. ........................5 

E. Mr. Brown and Mr. Gudjonsson Based Their Conclusions on Unreliable Log 

Data. ...............................................................................................................................6 

F. Mr. Brown and Mr. Gudjonsson Only Pursued Theories of Misconduct When 

Prompted By Attorneys..................................................................................................6 

II. THE COURT SHOULD EXCLUDE THE TESTIMONY OF GARY BROWN AND 

KRISTINN GUDJONSSON. .....................................................................................................8 

A. Mr. Brown and Mr. Gudjonsson Reached their Conclusions Before 

Conducting Their Investigation. ....................................................................................9 

B. The Conclusions of Mr. Brown and Mr. Gudjonsson Are not Based on 

Sufficient Methodology. ..............................................................................................10 

1. The investigation into the SVN Server was severely flawed. ..........................10 

2. Mr. Brown and Mr. Gudjonsson Did Not Consider Reasonable 

Alternatives. .....................................................................................................11 

III. CONCLUSION ........................................................................................................................12 

 

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TABLE OF AUTHORITIES 

 Page(s) 

Federal Cases 

Carnegie Mellon Univ. v. Hoffmann–LaRoche, Inc., 55 F. Supp. 2d 1024 (N. D. Cal. 1999) ......................................................................................8, 11 

Claar v. Burlington N. R. Co., 29 F.3d 499 (9th Cir. 1994) ...................................................................................................8, 9, 12 

Daubert v. Merrell Dow Pharm., Inc, 43 F.3d 1311 (9th Cir. 1995) .....................................................................................................9, 10 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ...............................................................................................................8, 9, 10 

EEOC v. United Parcel Servs., 149 F. Supp. 2d 1115 (N. D. Cal. 2000) ........................................................................................10 

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) .......................................................................................................................11 

Jinro Am. Inc. v. Sec. Invest., Inc., 266 F.3d 993 (9th Cir. 2001) .........................................................................................................12 

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) .......................................................................................................................10 

Lewert v. Boiron, Inc., 

212 F. Supp. 3d 917, 936 (C.D. Cal. 2016) ...................................................................................12

Mfg. Admin. and Mgmt. Sys., Inc. v. ICT Group, Inc., 

212 F.R.D. 110 (E.D.N.Y. 2002) ...................................................................................................10 

Musselman v. Phillips, 

176 F.R.D. 194 (D. Md. 1997) .......................................................................................................10 

Ollier v. Sweetwater Union High Sch. Dist., 

768 F.3d 843 (9th Cir. 2014) .......................................................................................................8, 9 

Pooshs v. Phillip Morris USA, Inc., 

287 F.R.D. 543 (N. D. Cal. 2012) ....................................................................................................8 

Other Authorities 

Fed. R. Evid. 702 .....................................................................................................................1, 8, 9, 12 

Lee Mickus, Discovery of Work Product Disclosed to a Testifying Expert Under the 

1993 Amendments to the Federal Rules of Civil Procedure, 27 CREIGHTON 

L.REV. 773, 793 n.89 (1994) ........................................................................................................10 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

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The Court should exclude the testimony of Gary Brown and Kristinn Gudjonsson as 

unreliable under Federal Rule of Evidence 702 because they are not based on sufficient facts or 

sound methodology. Mr. Brown and Mr. Gudjonsson should not be permitted to offer opinion 

testimony about (a) whether behavior was unusual or suspicious and (b) the SVN server and its data. 

Mr. Brown and Mr. Gudjonsson concluded that the activities of Mr. Levandowski were 

unusual or suspicious. They failed, however, to conduct an objective and reliable investigation. In 

fact, they did no investigation to determine what qualifies as normal activity, even though a 

considerable amount of information was available to them. Also, neither Mr. Brown nor Mr. 

Gudjonsson have experience with the SVN server that would enable them to opine on that server and 

the actions of individuals using that server in the ordinary course of business. As such their 

conclusions are unsupported, and as the record shows, were unduly biased by accusations made by 

Waymo’s litigation counsel. 

Waymo previously identified Gary Brown and Kristinn Gudjonsson—the individuals who 

conducted the forensic investigation into Anthony Levandowski—as experts (see Vu Decl. Ex. 21). 

Waymo nrecently has stated that it does not intend to offer “opinion testimony” by these witnesses. 

Vu Decl. at Exs. 1-4. Instead of providing a report, Waymo has provided statements from these 

witnesses about the subject matter of their testimony, including the forensic investigation they 

conducted and the conclusions they reached “in an abundance of caution” should the Court find 

these individuals to be experts. See id. Waymo should not be allowed to offer an expert witness in 

fact witness clothing. These witnesses are not qualified and did not engage in an objective or sound 

methodology. Their opinions should be excluded. 

I. WAYMO’S INVESTIGATION CONTAINS INVESTIGATIVE FAILURES. 

Waymo has disclosed that Mr. Brown and Mr. Gudjonsson will testify about the conclusions 

of their investigation, including that Mr. Levandowski’s alleged download of 14,000 files from the 

SVN server—a repository used to store electrical designs for Project Chauffeur—was “unusual and 

suspicious.” In reaching this conclusion, Waymo failed to first establish what is considered to be 

“usual” conduct for Anthony Levandowski and others on the Chauffeur team before concluding that 

their behavior was “unusual.” In addition, although Mr. Brown and Mr. Gudjonsson intend to opine 

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on the SVN server, neither has personal knowledge of this server and neither performed any 

investigation of the server that provides them with sufficient basis to opine on it and its use. 

A. MR. BROWN AND MR. GUDJONSSON DID NOT INVESTIGATE ALL OF MR.

LEVANDOWSKI’S COMPUTERS. 

After Anthony Levandowski left Google on January 27, 2016, Google initiated an 

investigation overseen by Gary Brown and Kristinn Gudjonsson. At the time of his departure, Mr. 

Levandowski was using three computers—a W laptop (identified as 710739 in the Brown 

Declaration), a G Laptop, and an HP Workstation. Vu Decl. at Ex. 6. Mr. Gudjonsson imaged the 

two laptops, and though he requested to image the HP Workstation, he was directed not to analyze it. 

Id. at Ex. 14, 211:4-212:5; Ex. 13, 97:14-98:9; 103:15-104:6. Thus, the investigators never 

investigated that computer, and by the end of February 2016, had been reimaged and reassigned to 

another user. Id. at Ex. 6; 12 at 468:14-469:24. Waymo failed preserve an image of the HP 

Workstation and it has provided no explanation for its decision to not analyze the HP Workstation 

or for its spoliation of evidence. Id. at Ex. 13 at 104. 

B. MR. BROWN AND MR. GUDJONSSON DID NOT DETERMINE MR. LEVANDOWSKI’S 

“USUAL” CONDUCT BEFORE REACHING THEIR CONCLUSIONS. 

Mr. Brown and Mr. Gudjonsson’s lay belief in unusual behavior is unreliable because they 

did not consider (a) the SVN server instructions instruct a user to download the entire repository, (b) 

they concluded Mr. Levandowski only used the SVN repository once even though he had passwords 

dating back over a year that were issued as part of a restricted “need to access” list, (c) they did not 

conside the fact that the downloading activity was considered by a user to be typical and not 

suspicious, and (d) they did not consider data from the other devices that Mr. Levandowski used. 

Mr. Brown and Mr. Gudjonsson’s conclusion that Levandowski’s access to the SVN server 

and download of the entire repository consisting of 14,000 files or 9.7 Gigabytes was unusual and 

suspicious was actually based on only four months of data relating to Mr. Levandowski and that data 

was limited to just the single W laptop and not the other devices Mr. Levandowski used. When 

Waymo began its investigation of Mr. Levandowski, it did not suspend the SVN server’s policy that 

destroys activity logs older than 52 weeks. Id. at Ex.12 at 323:14-324:16. As such, when Mr. 

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Brown viewed the SVN log in October 2016, the log only contained information relating to Mr. 

Levandowski between September 19, 2015 and January 27, 2016. Id. 

Mr. Brown and Mr. Gudjonsson ignored that Mr. Zbrozek, the engineer who set up and 

administrated the SVN server, had provided Mr. Levandowski with credentials to access the SVN 

server sometime in March 2015. Id. at Ex. 16 at 287:23-289:18. These credentials were given 

because Mr. Levandowski had access to the previous server that housed the same type of 

information. Id. In fact, Mr. Zbrozek issued Mr. Levandowski a second password because the first 

password did not work. Mr. Brown and Gudjonsson never investigated any of these issues. 

When asked by Waymo’s outside counsel, Tom Gorman, whether Mr. Levandowski’s only 

access to the SVN that they had in the logs was “a ,” Mr. Zbrozek, responded, “It’s not 

particularly surprising that he might check things out once . . . It clearly wasn’t part of his routine. 

Doesn’t ring alarm bells for me.” Id. at Ex. 9. Mr. Gorman did not include Mr. Brown or Mr. 

Gudjonsson in this email. However, as Waymo was preparing to file its complaint based on Mr. 

Levandowski’s alleged downloading of all the documents from the SVN server, Mr. Zbrozek 

informed Waymo’s counsel and Mr. Brown and Mr. Gudjonsson that he was uncomfortable with 

their narrative: 

“I’m a little leery because both of those numbers [14,000 files or 9.7 GBs] aren’t really 

meaningful in any narrative. It also has a chilling effect on being a hardware engineer—we 

do full checkouts and it makes me uncomfortable to think that lawyers are trying to ascribe 

suspicion to it.” 

Vu Decl., Ex. 10. In that same email chain, Mr. Zbrozek included a copy of the instructions for how 

to download from the SVN, which directs the user to download the entire repository. See id. Mr. 

Brown and Mr. Gudjonsson did not appear to consider Mr. Zbrozek’s statements and these download 

instructions in reaching their faulty conclusions. Id. atEx. 12 at 414:8-19. 

Finally, although Mr. Brown and Mr. Gudjonsson’s conclusions are based on various types 

of log data associated with the “W Laptop,” they did not review or consider any log data associated 

with Mr. Levandowski’s activities using the G Laptop or the HP Workstation. Dkt 24-2 

(Declaration of Gary Brown only attesting to the W laptop); Vu Decl. at Ex. 12 at 437:15-24 

(reviewing other log data only after he was deposed in August 2017). Mr. Brown’s declaration only 

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discusses the log data for the W Laptop and Waymo has refused to provide log data related to the G 

Laptop or the HP Work station because it was only willing to produce “log data underlying the 

declaration” of Gary Brown. See id.; see also Dkt. 1367. As such, the conclusions regarding Mr. 

Levandowski’s behavior were based on his activities on only one of the three laptops he was using at 

the time of his departure. 

C. MR. BROWN AND MR. GUDJONSSON DID NOT INVESTIGATE THE “USUAL”

CONDUCT OF ENGINEERS ON THE CHAUFFEUR TEAM. 

Michael Janosko, one of Waymo’s security engineers, testified on how to determine 

anomalous conduct when investigating breaches of Google’s security system: 

Q. 

Vu Decl. at Ex. 17 at 38:25-39:13. Mr. Brown agreed that in conducting an investigation, “all 

feasible rocks should be turned over” and “the more information, the better.” Id. at Ex. 13 at 99:11-

100:7. And yet, Mr. Brown and Mr. Gudjonsson failed to even review the information available 

regarding the ordinary practices of Chauffeur engineers to first establish a baseline for normal 

activity before determining that Mr. Levandowski’s conduct was suspicious and unusual. 

Mr. Brown and Mr. Gudjonsson did not review or even consider the activities of other 

engineers on the Chauffeur team to determine whether downloading large amounts of data was 

common practice. Id. at Ex. 12 at 414:8-19. Indeed, although requested, Waymo has refused to 

provide similar log data that Mr. Brown and Mr. Gudjonsson reviewed for Mr. Levandowski for a 

sampling of other individuals because those logs were apparently not relevant and according to 

Waymo, too burdensome to produce. See Dkt. 1367. 

Based on the SVN data produced in this case for other engineers on Chauffeur (from after 

May 2016, because no earlier data was preserved), had Mr. Brown and Mr. Gudjonsson looked, they 

would have discovered that many of the Chauffeur engineers have downloaded over 9 Gigabytes of 

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data in one sitting. 

 

D. MR. BROWN AND MR. GUDJONSSON LACK KNOWLEDGE OF THE SVN SERVER. 

As testimony reveals, Mr. Brown and Mr. Gudjonsson did not have any personal knowledge 

about the SVN server let alone how the server works. When asked about downloading documents 

from the SVN server, Mr. Gudjonsson explains that the server was “

.” Ex. 14 at 219:10-20. In 

response to a question about whether it was unusual for a Google engineer to download 14,000 files 

from an SVN repository, Mr. Gudjonsson responds: “I wouldn’t know.” Id. at 184:24-185:3. Mr. 

Gudjonsson admits that he simply had no personal knowledge, and that “Gary Brown completely 

took care of that himself.” Id. at 413:19-413:25. 

Mr. Brownwas equally clueless. When asked whether he worked with the SVN repository 

before, Mr. Brown simply responded “no.” Ex. 13 at 281:16-18. In fact, Mr. Brown admits that he 

never received special certification training about the SVN server and never set one up, reviewed 

SVN log files, or even had access to the SVN website himself prior to this case. See id. at 281:19-

283:17; 287:6-10. He went so far as to explain that never had “a business need to access those 

files.” Id. When asked about retention of the SVN log data provided by Waymo’s attorneys, which 

Mr. Brown had been ordered to be prepared to testify about, he again re-affirmed his lack of 

experience with the SVN server, “

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d. Ex. 12, 532:4-11. 

E. MR. BROWN AND MR. GUDJONSSON RELIED ON UNRELIABLE LOG DATA. 

Mr. Brown admits that there are discrepancies in the log data that he reviewed that call into 

question the reliability of his conclusions. In emails with the forensic investigation team about 

discrepancies in the , Mr. Brown said that he had received different results 1/3 

times for one search and errors 3/8 times in other queries he had conducted. Vu Decl. at Ex. 7. Mr. 

Brown stated that “

” Id. Mr. Brown also emailed about one of the types of logs he and Mr. Gudjonsson 

reviewed, stating, “ ” because there were discrepancies in time stamps for 

events based on this log. Id. at Ex. 8. In another update email to Mr. Gorman and Mr. Gudjonsson 

about access logs, Mr. Brown states that the server access data found from was “ 

 and was “ Ex. 18. This data 

apparently dated back to only “August of 2015.” Id. 

In addition, Waymo produced a data log allegedly pertaining to Anthony Levandowski’s 

activities in Excel format. When Mr. Brown saw this data, he had a visceral reaction, stating “I 

should note, I absolutely positively distrust all Excel formatting.” Id. at Ex. 13 at 252:1-253:11. 

F. MR. BROWN AND MR. GUDJONSSON ONLY PURSUED THEORIES OF MISCONDUCT 

WHEN PROMPTED BY ATTORNEYS.

Although Mr. Brown and Mr. Gudjonsson investigated Mr. Levandowski’s activities in 

February to March 2016, including reviewing his computer and log data, they did not find any trade 

secret compromise at that time. See Vu Decl. at Ex. 11 at 31:17-24; Ex. 13 at232:17-19; 235:17-20; 

Ex. 14 at 198:22-199:9; 203:15-204:9; 209:23-210:9; Ex. 20, 22. They only found misconduct after an 

attorney from Keker directed them to reach those conclusions. 

On September 19, 2016, Tom Gorman, an attorney at Keker, told Mr. Brown, Mr. 

Gudjonsson that Mr. Levandowski syncing his computer to the SVN server to download the entire 

repository a week before reformatting his computer was “fishy.” Id. at Ex. 23 As demonstrated 

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above, however, Mr. Brown and Mr. Gudjonsson had no personal knowledge of the SVN server. 

Mr. Gorman repeated this theory again in the same communication, this time adding that he found it 

unusual that Mr. Levandowski would reformat to install a Linux operating system when he had 

another laptop running Linux. See id. “ ?,” he concluded. Id. 

When asked for the source supporting his conclusions, Mr. Gorman provided Mr. Brown an 

SVN log. Id. Mr. Brown testified that he then worked to “confirm” Mr. Gorman’s conclusions, but 

he admittedly disregarded information that was “not explicitly relevant for what [they] were trying 

to prove.” Id. at Ex. 11 at 36:9-24; Ex. 12 at Tr. 229:3-231:8 (emphasis added). When asked 

whether anyone had told him that Mr. Levandowski downloaded 14,000 files on December 11, 2015, 

Mr. Brown answered in the affirmative and identified “Tom Gorman.” Id. Ex. 12 at 132:4-11. 

Similarly, Mr. Gudjonsson, concluded that Mr. Levandowski “hadn’t visited the SVN site before, 

and this [the December 11 activity] was the first sync as you [Tom Gorman] suggested from looking 

at the SVN log.” Id. at Ex. 23. 

With the seed of misconduct planted by Mr. Gorman, the investigators focused significant 

energy to enforce this crafted theory. Mr. Gudjonsson testified that on two separate occasions he 

had mistakenly developed theories that Mr. 

. Id. at Ex.15, 460:12-461:6; see also id. at Ex. 19 at 

84575 (“

”). Both of 

these unreasonable theories were proven wrong. Id., see also 460:12-461:6. 

However, there is no evidence that Mr. Brown or Mr. Gudjonsson ever looked to see whether 

Mr. Levandowski’s conduct was not suspicious. They determined that Mr. Levandowski 

downloading the SVN repository was suspicious because they apparently did not have a record of 

him accessing the SVN repository at any other time in Google’s narrow set of preserved data . In so 

doing, they disregarded alternative explanations. For example, since Google instructed users to 

download the entire SVN repository upon installation, it is equally likely that Mr. Levandowski did 

not need to access the SVN server prior to December 11, 2015 because he already had the files he 

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needed before he reformatted his computer on November 26, 2015. Based on the facts revealed in 

this case, it is plausible that Mr. Levandowski simply he needed to download the repository again 

because of that reformatting. Vu decl. at 5. 

II. THE COURT SHOULD EXCLUDE THE TESTIMONY OF GARY BROWN AND

KRISTINN GUDJONSSON. 

In their statements regarding the testimony of Mr. Brown and Mr. Gudjonsson, Waymo 

acknowledges that neither witness is providing opinion testimony. See Vu Decl. Exs. 1-4. However, 

Waymo also appears to avoid outright designating these witnesses as experts. This is because the 

investigations conducted by Mr. Brown and Mr. Gudjonsson cannot meet the Daubert standard for a 

litany of reasons: their investigation was not based on a sufficient methodology, they did not 

consider any reasonable alternative and disregarded relevant facts, and signed onto conclusions 

provided to them by an attorney before they reviewed the underlying data. Waymo cannot have it 

both ways, Mr. Brown and Mr. Gudjonsson are either testifying to specialized knowledge and 

subject to Rule 702, or their opinion testimony is inadmissible. See Ollier v. Sweetwater Union High 

Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014) (“personal opinion testimony is inadmissible as a 

matter of law under Rule 702 . . . and speculative testimony is inherently unreliable”).

The Court should exclude Mr. Brown and Mr. Gudjonsson’s testimony under Daubert and 

Rule 702, which requires district courts to act as a gatekeeper to “ensure that any and all scientific 

testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., 

Inc., 509 U.S. 579, 589 (1993). Courts must assess “whether the reasoning or methodology 

underlying the testimony is scientifically valid and of whether that reasoning or methodology 

properly can be applied to the facts in issue.” Claar v. Burlington N. R. Co., 29 F.3d 499, 501 (9th 

Cir. 1994) (emphasis in original), citing Daubert at 592-93. Importantly, courts must “ensure the 

expert ‘employs in the courtroom the same level of intellectual rigor that characterizes the practice 

of an expert in the relevant field.’” Pooshs v. Phillip Morris USA, Inc., 287 F.R.D. 543, 547 (N. D. 

Cal. 2012), citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Furthermore, a 

methodology may not be reliable if an expert “fail[s] to address and exclude alternative explanations 

for the data on which he bases his findings.” Carnegie Mellon Univ. v. Hoffmann–LaRoche, Inc., 55 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

F. Supp. 2d 1024, 1034-35 (N. D. Cal. 1999); see also Claar at 502 (expert must adequately account 

for obvious alternative explanations). 

A. MR. BROWN AND MR. GUDJONSSON REACHED THEIR CONCLUSIONS BEFORE 

CONDUCTING THEIR INVESTIGATION. 

Rule 702 is unambiguous: expert testimony may only be admitted if it “is based upon 

sufficient facts or data” and “is the product of reliable principles and methods.” See also Daubert, 

509 U.S. at 596. Neither Mr. Brown’s nor Mr. Gudjonsson’s testimony pass muster. 

Mr. Brown and Mr. Gudjonsson’s testimonies are not reliable because they were fed a 

conclusion by Keker attorney Tom Gorman—that Mr. Levandowski’s download of 14,000 files was 

anomalous—before they conducted any investigation. “Coming to a firm conclusion first and then 

doing research to support it is the antithesis of [the scientific] method.” Claar, 29 F.3d at 502 

(citations removed); see also Daubert, 509 U.S. at 590 (“in order to qualify as ‘scientific 

knowledge,’ an inference or assertion must be derived by the scientific method.”). Indeed, both 

witnesses testified that because they had no experience working with the SVN server and never 

performed an independent investigation of the SVN server prior to the case, they did not understand 

the nature of Mr. Levandowski’s actions on the SVN server prior receiving Mr. Gorman’s 

conclusions. Claar is on point. Like the investigators here, the expert witness in Claar provided an 

opinion about the causation of the harm at issue before reviewing the relevant materials. The Ninth 

Circuit’s admonishing is clear:“[S]cientists whose conviction about the ultimate conclusion of their 

research is so firm that they are willing to aver under oath that it is correct prior to performing the 

necessary validating tests could properly be viewed by the district court as lacking the objectivity 

that is the hallmark of the scientific method.” Claar, 29 F.3d at 502-3; see also Daubert v. Merrell 

Dow Pharm., Inc, 43 F.3d 1311, 1317 (9th Cir. 1995) (“Daubert II”) (“That an expert testifies based 

on research he has conducted independent of the litigation provides important, objective proof that 

the research comports with the dictates of good science.”), Ollier, 768 F.3d at 860 (affirming the 

exclusion of the testimony of an expert who submitted a report prior to an “in-person investigation”). 

Courts have cautioned litigants on risks inherent in the attorney-expert relationship, and have 

excluded experts where attorneys have improperly influenced the conclusions of such experts. See 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

EEOC v. United Parcel Servs., 149 F. Supp. 2d 1115, 1139 (N. D. Cal. 2000), aff’d in part, rev’d in 

part on other grounds, 306 F.3d 794 (9th Cir. 2002) (“In context, it seems clear that [the expert] lost 

his independence and objectivity. He simply became part of the UPS advocacy team”); Mfg. Admin. 

and Mgmt. Sys., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 116 (E.D.N.Y. 2002) (stating that “[t]he 

modern attorney-expert relationship provides fertile ground for improper influence”); Musselman v. 

Phillips, 176 F.R.D. 194, 200 (D. Md. 1997) (finding it “essential” to discover the manner in which 

experts arrived at opinions and whether “done as a result of an objective consideration of the facts, 

or directed by an attorney advocating a particular position”); Lee Mickus, Discovery of Work 

Product Disclosed to a Testifying Expert Under the 1993 Amendments to the Federal Rules of Civil 

Procedure, 27 CREIGHTON L.REV. 773, 793 n.89 (1994) (stating that a “showing that counsel 

manipulated the expert’s analysis and ultimate findings pushes the expert’s testimony from the realm 

of sloppy science into that of biased science”). The conduct of Tom Gorman in directing the 

conclusions of Mr. Brown and Mr. Gudjonsson on what to “prove” impacted their ability to perform 

an unbiased and methodologically sound investigation. The Court should exclude their testimony. 

B. THE CONCLUSIONS OF MR. BROWN AND MR. GUDJONSSON ARE NOT BASED ON 

SOUND METHODOLOGY. 

The Ninth Circuit holds that litigant’s experts whose testimony is not based on pre-suit 

research or investigation on specialized issues must submit affirmative proof of “objective, verifiable 

evidence” that the testimony is based on valid scientific principles. Daubert II, 43 F.3d at 1317. 

Waymo, however, cannot provide such proof. 

1. The investigation into the SVN Server was severely flawed. 

The investigation into Mr. Levandowski’s access was littered with methodological errors that 

cannot meet the level of “intellectual rigor” contemplated in Daubert, Kumho and their progeny. For 

example, Mr. Brown and Mr. Gudjonsson’s failure to investigate all of Mr. Levandowski’s 

computers disqualified their investigation from the outset. Not only did the investigators have an 

incomplete set of Mr. Levandowski’s computers, but a large chunk of SVN log data was also not 

preserved, despite the fact that Waymo had initiated an investigation and had a duty to preserve 

relevant evidence. The log data that both investigators used only contained information relating to 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

Mr. Levandowski between September 19, 2015 and January 27, 2016, a small fraction of Mr. 

Levandowski’s employment on the Chauffeur team. Furthermore, no investigator bothered to even 

look at Mr. Levandowski’s activities on his G Laptop or his HP Workstation. Worse, Mr. Brown 

and Mr. Gudjonsson did not investigate or even consider the activities of everyone else on the 

Chauffeur team to determine whether downloading significant amounts of data was standard 

practice. Indeed, Waymo went to great lengths to shield such information from discovery under the 

guise of irrelevance and production burden. [cite Dkt]. Thus, Mr. Brown and Mr. Gudjonsson’s 

conclusions that Mr. Levandowski’s conduct was unusual or suspicious are unsupported as they do 

not even know what normal or non-suspicious behavior is in this context. Collectively, Waymo and 

the investigators have embarked on a type of selective examination that clearly “departs from 

scientific standards.” Carnegie, 55 F. Supp.at 1034. 

Furthermore, Mr. Brown admits to serious flaws with the underlying log data that formed 

both his and Mr. Gudjonsson’s conclusions. These are the sorts of flaws that courts have routinely 

cited to as grounds for excluding expert testimony. See Id. at 1040 (finding an expert’s conclusions 

to be unreliable due to errors and manipulations in the data underlying his research), Gen. Elec. Co. 

v. Joiner, 522 U.S. 136 (1997) (finding that an expert who reinterpreted data that was not his own to 

be unreliable). Mr. Brown states on multiple occasions that there are errors in the various SVN logs 

they reviewed, and that such errors were simply not sufficiently authoritative. 

Finally, Mr. Janosko and Mr. Brown’s testimony on what they consider to be the proper way 

to investigate breaches of Google’s security system exacerbate the flaws cited above. Mr. Janosko 

testified that to find anomalous conduct, you would need to collect a large amount of data in order to 

measure and decide what access was appropriate. Mr. Brown agreed and unequivocally stated that 

“ .” Vu Decl., Ex. XX 

at 99:11-100:7. As Mr. Brown and Mr. Gudjonsson have proved, they failed to review a host of 

relevant data and by Waymo’s admission, their investigation was lacking. 

2. The Investigators Did Not Consider Reasonable Alternatives. 

Moreover, neither expert made any effort to “adequately account[] for obvious alternative 

explanations” by looking to see whether Mr. Levandowski’s conduct was in fact innocent. See 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

Claar, 29 F.3d at 502 (expert testimony was not admitted in part because they did not make an effort 

to rule out other possible causes for plaintiffs’ injuries “even though they admitted that this step 

would be standard procedure”). Like in Claar, Mr. Brown testified that “

d. at Ex. 13 at 99:11-100:7. But instead, both 

witnesses pre-determined that Mr. Levandowski downloading the SVN repository was suspicious 

based on the comments of Mr. Gorman, while completely disregarding any alternative explanations. 

One explanation is equally plausible under these facts: Mr. Levandowski may have downloaded the 

same files prior to reformatting his computer on November 26, 2015, and he may have needed to 

download the repository again because of that reformatting. Google never bothered to keep 

complete records of the SVN access logs and even failed to image some of his computers. 

Without a full picture of all of Mr. Levandowski’s habits and practices as an engineer at 

Google, as well as the habits and practices of his peers at Chauffeur, any conclusion that Mr. 

Levandowski’s December 2015 download from the SVN server was anomalous is speculative at best 

and certainly prejudicial. There is now clear proof that downloads of 9GB of data or more from the 

SVN server were and continued to be common at Google and Waymo. 

C. MR. BROWN AND MR. GUDJONSSON DO NOT HAVE THE REQUISITE EXPERTISE 

REGARDING THE SVN SERVER TO TESTIFY AS EXPERTS. 

Finally, Mr. Brown and Mr. Gudjonsson are not qualified to testify as experts as neither have 

used the SVN and were unable to answer basic questions about the SVN server. Nothing in their 

background evidences sufficient experience or training to testify about this system. Indeed, they 

admit their lack of knowledge. Accordingly, the Court should exclude their testimony as 

inadmissible personal opinion testimony as they do not qualify as experts. Fed.R. Evid. 702; Jinro 

Am. Inc. v. Sec. Invest., Inc., 266 F.3d 993, 1006 (9th Cir. 2001) (excluding unqualified investigator 

as expertwitness); Lewert v. Boiron, Inc., 212 F. Supp. 3d 917, 936 (C.D. Cal. 2016) (excluding 

expert testimony where witness admitted to having no expertise or experience on subject matter). 

III. CONCLUSION 

For the foregoing reasons, Otto Trucking respectfully requests that the Court grant its motion 

to exclude the testimony of Gary Brown and Kristinn Gudjonsson. 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

Dated: September 16, 2017 Respectfully submitted,

 By: /s/ Neel Chatterjee

Neel Chatterjee 

nchatterjee@goodwinlaw.com

Brett Schuman 

bschuman@goodwinlaw.com

Shane Brun 

sbrun@goodwinlaw.com

Rachel M. Walsh 

rwalsh@goodwinlaw.com

Hong-An Vu 

hvu@goodwinlaw.com

Hayes P. Hyde 

hhyde@goodwinlaw.com

James Lin 

jlin@goodwinlaw.com 

GOODWIN PROCTER LLP

Attorneys for Defendant: Otto Trucking LLC

 

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MOTION IN LIMINE TO EXCLUDE TESTIMONY 

OF GARY BROWN AND KRISTINN GUDJONSSON Case No. 3:17-cv-00939-WHA 

CERTIFICATE OF SERVICE 

I hereby certify that I electronically filed the foregoing document including all of its 

attachments 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 September 16, 2017. I further certify that 

all participants in the case are registered CM/ECF users and that service of the publicly filed 

documents will be accomplished by the CM/ECF system. 

I certify under penalty of perjury that the foregoing is true and correct. Executed on 

September 16, 2017. 

/s/ Neel Chatterjee

NEEL CHATTERJEE 

Case 3:17-cv-00939-WHA Document 1620 Filed 09/16/17 Page 17 of 17