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PLAINTIFF WAYMO LLC’S RESPONSE TO DEFENDANTS’ SUPPLEMENTAL

BRIEF RE MOTION TO STRIKE TRADE SECRET CLAIMS

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa Baily (Bar No. 237649)

 melissabaily@quinnemanuel.com

 John Neukom (Bar No. 275887)

 johnneukom@quinnemanuel.com

 Jordan Jaffe (Bar No. 254886)

 jordanjaffe@quinnemanuel.com

50 California Street, 22nd Floor

San Francisco, California 94111-4788

Telephone: (415) 875-6600

Facsimile: (415) 875-6700

Attorneys for WAYMO LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

vs.

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

CASE NO. 3:17-cv-00939

PLAINTIFF WAYMO LLC’S RESPONSE 

TO DEFENDANTS’ SUPPLEMENTAL 

BRIEF RE MOTION TO STRIKE TRADE 

SECRET CLAIMS

Case 3:17-cv-00939-WHA Document 1474-1 Filed 09/05/17 Page 1 of 11
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PLAINTIFF WAYMO LLC’S RESPONSE TO DEFENDANTS’ SUPPLEMENTAL

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Pursuant to the Court’s guidance at the Aug. 23, 2017 Hearing (Tr. at 88:17-89:22), Waymo 

hereby responds to Defendants Uber Technologies, Inc. and Ottomotto LLC’s (collectively, 

“Defendants” or “Uber”) supplemental brief on their motion to strike Trade Secret No. 96 under 

Section 2019.210.1

I. INTRODUCTION 

Defendants’ supplemental brief is far afield from its original motion to strike. To recap: 

Defendants moved to strike four of nine of Waymo’s elected trade secrets based on CCP Section 

2019.210 for failure to allegedly identify its trade secrets “with reasonable particularity.” Dkt. 1107-

4. The Court denied the motion with the exception of Trade Secret No. 96 (“TS 96”), which it held in 

abeyance pending Waymo’s disclosure of its offer of proof. Dkt. 1247; Aug. 16, 2017 Hearing Tr. at 

123:24-124:9. The Court then allowed Uber to file a supplemental brief addressing Waymo’s offer of 

proof for Trade Secret No. 96. Aug. 23, 2017 Hearing Tr. at 89:1-10. 

On the only question pending before the Court—whether Waymo’s TS 96 complies with 

Section 2019.210—the answer is unambiguously yes. Uber’s detailed supplemental brief (Dkt. 1399-

4) itself confirms that Waymo did identify its trade secret with reasonable particularity well beyond 

the applicable standard required by Section 2019.210, and it did so in March 2017—before discovery 

began. In particular, Uber’s full-throated rebuttal to the substance of the trade secret, arguing that it 

does not use confirms better than any statement by Waymo that Uber 

knows exactly what Waymo contends is a trade secret and how Waymo contends Uber is using it. 

Section 2019.210 requires identification with reasonable particularity. There is no question that 

Waymo has done so in this instance. 

Rather than argue whether Waymo identified its trade secret with reasonable particularity, 

Uber spends the bulk of its brief trying to persuade the Court to rule on hotly disputed issues of fact 

and improperly deprive Waymo of its constitutional right to a jury trial—on whether Uber 

misappropriated the claimed trade secret. The Court should reject this invitation as such a ruling on a 

 

1

 Waymo will separately submit responses to the Court’s sealed orders at Dkt. Nos. 1408 and 

1416. 

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PLAINTIFF WAYMO LLC’S RESPONSE TO DEFENDANTS’ SUPPLEMENTAL

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Section 2019 motion would constitute clear reversible error. In fact, Uber already tried these same 

arguments for other trade secrets Uber previously moved to strike; the Court rightly rejected them. 

Aug. 16, 2017 Hearing Tr. 108:5-15 (denying motion to strike TS 25: “I think it is good enough, 

because I have looked at the document. This document -- I have explained it. All the detail in here is 

-- in totality is the trade secret.”); id. at 110:13-111:3 (denying motion to strike TS 90); id. at 133:24-

134:18 (denying motion to strike TS 111: “But the bottom line that 

, okay, and I’d say that’s described well enough – I’m not saying it is 

a trade secret; I’m just saying it was described well enough. And so for the notice purposes, I would 

deny this motion.”). The same is true for TS 96. Whether Uber is misappropriating the identified 

trade secret is an issue for fact at trial; not an issue of disclosure under Section 2019. 

Uber’s supplemental brief further argues that Waymo must show “exact duplication” of TS 96 

for purposes of trade secret misappropriation to reach a jury. Wrong. There is simply no basis in 

trade secret law to require “exact duplication” to show misappropriation of a trade secret. The facts 

here are more than enough to show use of TS 96. Mr. Levandowski downloaded the exact schematic 

identified in TS 96. He met with an Uber executive the same day he did so. Mr. Levandowski then 

went to Uber to head its self-driving and LiDAR program. Uber and Mr. Levandowski, as the head of 

Uber’s self-driving program, then created a new LiDAR in an impossibly fast amount of time 

),2a LiDAR that the Court previously found to have “serious questions going to the merits” 

whether its use of two design elements (claimed as Waymo Trade Secret Nos. 2 and 7) “resulted from 

old-fashioned, all-American misappropriation of [Waymo’s] trade secrets.” (Dkt. 426 at 13-16.) At 

the same time, Mr. Levandowski had hundreds of communications with the Uber engineers regarding 

LiDAR, including specifically on , all while having access to the illegally 

downloaded TS 96 that detailed . Contrary to Uber’s prior representations to 

this Court during the injunction phase, Mr. Levandowski’s personal text messages to the now-head of 

Uber’s self-driving program confirms he was in charge of “ ” in Fuji. He and his 

 

2

 This is in contrast to the years that Waymo spent developing its mid-range LIDAR solution 

(GBr).

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colleagues even went so far as to refer to Waymo’s own beam spacing strategy using a code name to 

hide evidence of this theft. Even if Uber failed to exactly replicate TS 96, it is reasonable to infer 

from the evidence that Mr. Levandowski consulted TS 96 as he shaped . Waymo 

has gone well beyond showing a disputed issue of fact as to whether Uber misappropriated TS 96. To 

hold otherwise on summary judgment in the guise of a motion to strike would constitute reversible 

error. 

Waymo is not aware of a single case that would entirely deny a plaintiff relief—after fact 

discovery is over—based on Section 2019.210, when the plaintiff identified a single schematic as a 

trade secret six months prior, before discovery even began, and one that was personally downloaded 

by a key executive for the Defendants. Defendants’ motion should be denied. To grant Defendants’

motion would not serve the core purpose of Section 2019.210—to define the scope of discovery. Fact 

discovery cut-off is behind us. Waymo already served its opening expert report on trade secret 

misappropriation. TS 96 should proceed to trial. 

II. WAYMO IDENTIFIED BEFORE DISCOVERY BEGAN 

WITHIN ONE SCHEMATIC AS TRADE SECRET NO. 96

Waymo’s trade secret list under Section 2019.210 was served on March 10, 2017. (Dkt. 25-7.) 

Discovery commenced on March 16, 2017. (Dkt. 61.) Fact discovery closed on August 24. The same 

day, Waymo served its opening expert report detailing Defendants’ trade secret misappropriation. 

Trade Secret No. 96, identified in Waymo’s original trade secret list served in March, is directed to a 

specific implementation of Waymo’s trade secret LiDAR designs (and designs derived therefrom) that 

the Court has previously noted would qualify as protectable trade secrets. Defendants’ own brief 

quotes the Court on this point, essentially admitting that TS 96 is just that—a properly identified trade 

secret. Dkt. 1399-4 at 1 (“[S]ee 5/3/17 AM Sealed Hr’g Tr. 14:23-25 (Court: ‘[T]here is no doubt in 

my mind that your specific configuration, very specific configuration, would be a 

trade secret. That’s okay. They don’t use that though.’).”); see also May 3, 2017 Hearing Tr. (a.m. 

closed session) at 15:21-22 (“[Y]our specific implementation, I think, would be a trade secret.”); May 

3, 2017 Hearing Tr. (p.m. closed session) at 44:11-13 (“Trade secrets are about how you implement 

your design. It doesn’t have to be—qualify for a patent. It’s about implementation.”). 

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Defendants thus appear to now admit that Waymo’s TS 96, describing its implementation of its 

, qualifies as a trade secret and is identified as such.

This is not surprising as Defendants cannot run from their own head of self-driving describing

 Dkt. 1371-4 at 18; Jaffe Decl. Ex. 1. 

Left with no other options on the pending motion to strike, Defendants pivot to a new argument 

(entirely absent from their opening brief) that Waymo’s design is “not described anywhere in 

TS 96 even in general terms.” Dkt. 1399-4 at 3. This is clearly false. TS 96 claims one specific PCB 

board that includes . See Dkt. 1371-4 at 23-24. 

Waymo’s trade secret list (served before discovery began) identified this exact PCB schematic, and 

identified for Defendants that one unique aspect of the schematic reflected 

 Dkt. 25-7 at 55. There can be little debate that 

 as implemented by Waymo is identified in TS 96 for purposes of Section 2019. See 

VasoNova Inc. v. Grunwald, No. C 12-02422, 2012 WL 4119970, at *3 (N.D. Cal. Sept. 18, 2012) 

(Alsup, J.) (finding that the disclosure of trade secrets for “implementation information” met the 

reasonable particularity requirement). 

The cases uniformly hold that this type of identification is sufficient for Section 2019.210. For 

example, Via Techs., Inc. v. Asus Computer Int’l, No. 14-cv-3586, 2016 WL 1056139 (N.D. Cal. Mar. 

17, 2016), cited by Uber in its original motion (Dkt. 1107-4 at 9), supports Waymo’s position. In Via, 

the defendant resisted providing discovery that was outside the scope of plaintiff’s Section 2019.210 

disclosure. Id. at *2. To resolve this discovery dispute, the court analyzed what trade secrets plaintiff 

had sufficiently disclosed. Id. at *2-3. The Court specifically found that the schematics the plaintiff 

had identified was a sufficient identification under Section 2019.210: “However, VIA is entitled to 

discovery on at least the trade secrets that it has specifically identified: the 12 schematics.” Id. at *3. 

As opposed to the 12 schematics identified in Via, Waymo has identified one schematic in Trade 

Secret No. 96. It further identified examples of what parts of this schematic reflect unique and trade 

secret information—e.g., Dkt. 25-7 at 55. 

This one schematic is sufficient for purposes of complying with Section 2019.210’s requirement to 

identify a trade secret with reasonable particularity. See Lilith Games (Shanghai) Co. v. uCool, Inc., 

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No. 15-CV-01267, 2015 WL 4149066, at *4-5 (N.D. Cal. July 9, 2015) (finding that the plaintiff was 

claiming as trade secret the “specific way” that it authored and structured source code and that the 

disclosure was “more than enough information” to meet the particularity requirement of Section 

2019.210).

Waymo’s offer of proof provided pages of detail concerning how and why 

included in TS 96 is unique and different from Uber’s prior designs and those known in the 

industry—i.e. why TS 96 qualifies as a trade secret. Dkt. 1371-4 at 17-25. Uber did not dispute or 

otherwise respond to these arguments, conceding that in TS 96 are unique and 

entitled to trade secret protection. Nevertheless, Uber’s brief appears to implicitly argue at times that 

anything describing how Waymo in TS 96 is

not entitled to trade secret protection because they were known in the art. This is incorrect. As 

explained by Waymo engineer Pierre Droz, Waymo came up with 

embodied in TS 96, in part, by: “

” Dkt. 453-3 at 4. This “helped [Waymo] solve critical driving 

scenarios, such as .” Id. “This for GBr3

provided a reduction in disengages caused by the LiDAR system in hundreds of thousands of miles of 

ensuing testing.” Id. at 5.

To the extent disputed, however, it is another question of fact for the jury, not one the Court 

can rule on in the context of a motion to strike under Section 2019. Contemporary Servs. Corp. v. 

Landmark Event Staffing Servs., Inc., 677 F. App’x 314, 315 (9th Cir. 2017), as amended on denial of 

reh’g (Mar. 30, 2017) (“Here, CSC raised material triable issues as to whether its customer lists (CSC 

California #17-18), its deployment workbook (CSC California #12), and its PowerPoint disclosing 

financial information (CSC California #2) qualify as trade secrets. See Abba Rubber Co. v. Seaquist, 

286 Cal. Rptr. 518, 526 (Cal. Ct. App. 1991) (where a customer list qualified as a trade secret); id. at 

529 n.9 (noting that “ease of ascertainability is irrelevant to the definition of a trade secret”); Whyte v. 

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Schlage Lock Co., 125 Cal. Rptr. 2d 277, 287-88 (Cal. Ct. App. 2002) (where specific and unique 

financial information qualified as a trade secret).” (footnote omitted))

Recognizing the futility of their argument under the pending motion to strike, Defendants at 

times do not even argue that TS 96 is not properly identified pursuant to Section 2019, retreating to a 

new position that TS 96 is not a “properly-drawn trade secret to be presented to a jury.” Dkt. 1399-4

at 1. But there is no basis in trade secret law for excluding allegedly not “properly-drawn trade 

secrets”—whatever that newly coined term is supposed to connote. Defendants unsurprisingly cite no 

authority to support this theory. Instead, Uber’s repeated and detailed arguments about the scope of 

the trade secret prove the opposite: that Waymo has complied with Section 2019’s reasonable 

particularity requirement. Prolifiq Software Inc. v. Veeva Sys. Inc., No. C 13-03644, 2014 WL 

2527148, at *3 (N.D. Cal. June 4, 2014) (“Indeed, the fact that Veeva is able to craft detailed 

arguments for why Prolifiq’s information does not constitute trade secrets means that Prolifiq has 

sufficiently identified that information to Veeva so that it may investigate the merits of Prolifiq’s 

claim.”). This alone should resolve Defendants’ motion to strike.

III. UBER’S ARGUMENT THAT IT DOES NOT USE THE TRADE SECRET IS A 

FACT QUESTION FOR TRIAL; NOT A MOTION TO STRIKE UNDER SECTION

2019.210

Uber spends the majority of its brief arguing whether it uses or is otherwise liable for trade 

secret misappropriation. This is a question of fact not before this Court on Uber’s motion to strike 

pursuant to Section 2019. “The statute . . . does not create a procedural device to litigate the ultimate 

merits of the case—that is, to determine as a matter of law on the basis of evidence presented whether 

the trade secret actually exists.” Brescia v. Angelin, 172 Cal. App. 4th 133, 149 (2009); see also

Advanced Modular Sputtering, Inc. v. Superior Court, 132 Cal. App. 4th 826, 835-36 (2005) (stating 

that Section 2019.210 does not require a “trial court to conduct a miniature trial on the merits of a 

misappropriation claim”). Converting Uber’s motion to strike to a motion for summary judgment 

would be improper. Art of Living Found. v. Does 1-10, No. 5:10-CV-05022, 2012 WL 1565281, at 

*22 (N.D. Cal. May 1, 2012) (“[S]ection 2019.210 [is not] a substitute for a summary judgment

motion.” (quoting Brescia, 172 Cal. App. 4th at 149) (Court’s brackets)). 

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Converting Defendants’ motion to a summary judgment request would further be contrary to 

this Court’s case management order in this case. Dkt. 563 at 3. The Court provided for summary 

judgment motions only with advance Court approval (id.), and subsequently ruled that only one such 

motion would be allowed (Aug. 16, 2017 Hearing Tr. at 135:1-5). Defendants moved for leave and 

were granted one motion. Dkt. 1300, 1359. Defendants could have easily raised non-use of TS 96 in 

that request. Defendants chose not to do so. The Court should not allow Defendants to end run the 

Court’s orders to rule on multiple, serial summary judgment motions, all while Waymo has duly 

followed the Court’s guidance for summary judgment. Instead, Waymo submits the Court should rule 

on the only thing pending before it—Defendants’ motion to strike pursuant to Section 2019. As 

discussed above, under that standard, it is clear that Waymo has complied with the requirement to 

identify its trade secret with reasonable particularity. 

Regardless, to the extent the Court does convert Defendants’ motion to strike to a motion for 

summary judgment (over Waymo’s strenuous objection), the Court cannot decide these issues unless 

there are no disputed issues of material fact. Fed. R. Civ. P. 56. Here, there are several disputed 

issues of fact that prevent such a ruling under Rule 56. For example, Uber’s supplemental brief is 

conspicuously silent concerning Mr. Levandowski’s involvement in the implementation of the 

 in Fuji. Uber previously represented to the Court via briefing and sworn 

testimony that Mr. Levandowski was not involved in in Fuji. Haslim Decl. 

(Dkt. 174-1) ¶ 19; see also PI Opp. (Dkt. 173-4) at 5. Discovery has shown otherwise. See Dkt. 

1371-4 at 20-22; Jaffe Decl. Ex. 2 (Mr. Levandowski text to Mr. Haslim informing the latter that 

). Moreover, Uber was 

contemplating a different before Mr. Levandowski joined Uber. Dkt. 1371-4 at 

20-21. Mr. Levandowski then disclosed to Mr. Boehmke and Mr. Haslim guidance 

from Google using code words like “state of the art.” Jaffe Decl. Ex. 3. Uber’s own 

strategy then shifted to mirror Waymo’s strategy, with Uber then able to produce

in . See Dkt. 1371-4 at 20-21. Waymo’s expert, 

Prof. Hesselink from Stanford, has compared the resulting designs and opined: “Given the extensive 

engineering effort and considered trade-offs reflected in Waymo’s , it 

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is not plausible that Defendants could have independently developed such a similar PCB schematic 

and layout .” Hesselink Opening Report (Dkt. 1399-5) ¶ 428. 

After comparing (as discussed in Waymo’s offer 

of proof, Dkt. 1371-4 at 23-25), he further opined: “It is my opinion that this similarity reflects the 

fact that 

.” Id. ¶ 432. Waymo has provided far more than is required to show disputed issues of fact. 

Uber’s supplemental brief also invokes the Court’s off-the-cuff statements regarding “exact 

duplication” for purposes of showing use of TS 96. Dkt. 1399-4 at 1. “Exact duplication” is not the 

correct standard to show misappropriation of a trade secret under CUTSA or DTSA. The question is 

whether Uber misappropriated the trade secret—i.e. acquisition, disclosure or use. CCP § 3426.1(b). 

And “use” does not mean that one must literally copy the exact design—one can easily “use”

something to create a different resulting design. The “use” is still clearly present and constitutes 

misappropriation under CCP §§ 3426.1 and 18 U.S.C. § 1839(5). “If trade secret law were not 

flexible enough to encompass modified or even new products that are substantially derived from the 

trade secret of another, the protections that law provides would be hollow indeed.” Think VillageKiwi, LLC v. Adobe Sys., Inc., No. C 08-04166, 2009 WL 3837270, at *3 (N.D. Cal. Nov. 16, 2009) 

(quoting Mangren Research & Dev. Corp. v. Nat’l Chem. Co., 87 F.3d 037, 933 (7th Cir. 1996)). 

Uber cites no authority requiring an “exact duplication” standard—because it does not exist. 

Applying an “exact duplication” standard to determine whether Uber misappropriated Waymo’s trade 

secret design would constitute reversible error. 

Here, there is a compelling case of misappropriation by Uber—as that term is used by CUTSA 

and DTSA. Mr. Levandowski downloaded 14,000 files from Waymo, including the exact schematic 

identified as TS 96. He did so on the same day he was meeting with an Uber executive. Compare

Dkt. 712, Ex. 1 at Nos. 21-27 (identifying Dec. 11, 2015 meeting between Levandowski and Uber 

executive) with Dkt. 24 ¶¶ 16-17 (describing Mr. Levandowski’s downloading of 14,000+ files on 

Dec. 11, 2015). He then left to lead Uber’s self driving program, including its LiDAR efforts. Within 

 of starting the project, Uber created a significantly different from 

Uber’s prior efforts and instead derived from Waymo’s design. One could reasonably infer that Mr. 

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Levandowski, consulting the TS 96 schematic on his personal computer (amongst the other 14,000+ 

files he downloaded), used it to guide Uber’s to implement something derivative 

of if not an exact copy of Waymo’s GBr3. That conduct remains trade secret misappropriation, even 

if Uber’s design is not an exact replica. This evidence (among other evidence) clearly raises disputed 

issues of fact for trial. Integral Dev. Corp. v. Tolat, 675 F. App’x 700, 703 (9th Cir. 2017) (“Second, 

there is enough evidence in the record to raise a question of material fact as to whether Tolat 

misappropriated those portions of Integral’s source code that qualify for trade secret protection. See 

Whyte, 125 Cal. Rptr. 2d at 289 (‘‘Misappropriation’ is, generally speaking, improper acquisition of a 

trade secret or its nonconsensual use or disclosure.’) (citing Cal. Civ. Code § 3426.1(b)). There is 

evidence that Tolat copied the source code shortly before he planned to leave Integral and join EBS. 

There is also evidence that, after Tolat joined EBS, EBS released a product—EBS Direct—that 

competed directly with some of Integral’s products. A fact finder must determine whether Tolat 

actually gave Integral’s source code to EBS and whether EBS used the source code to develop EBS 

Direct.”).

In response, Uber is free to argue at trial that its design does not use 

contained in TS 96. It is free to argue that Mr. Levandowski did not use or refer to the 

schematic in TS 96 when he was guiding Uber’s implementation of . Uber is free to 

argue that are different. But those are not issues on a motion to strike 

pursuant to Section 2019.210. Whether Defendants misappropriated TS 96 is an issue of fact for the 

jury to decide. On this record, to grant summary judgment (as Uber’s motion attempts to do) on 

Waymo’s claim of trade secret misappropriation of one of the files that Mr. Levandowski personally 

downloaded and Waymo has put forth documentary evidence and witness and expert testimony has 

been acquired, disclosed and used by Uber would constitute reversible error. Integral Dev. Corp., 675 

F. App’x at 704 (“Because Integral has at least raised a question of material fact as to all necessary 

elements of a CUTSA claim (based on the alleged misappropriation of its source code), we reverse the

district court’s summary judgment ruling on this claim and remand.”).

IV. CONCLUSION (AND ALTERNATIVE REMEDY) 

Waymo complied with Section 2019.210 before discovery began—in March 2017. Fact 

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discovery cut-off is behind us. Opening expert reports have been served. For notice purposes, 

Waymo clearly complied with Section 2019.210. For the foregoing reasons, Defendants motion to 

strike under Section 2019 should be denied. In the alternative, if the Court were inclined to grant 

Defendants’ motion, Waymo renews its request that it should at minimum grant Waymo leave to 

narrow or otherwise amend its Section 2019.210 disclosure. This Court’s prior precedent has granted 

plaintiffs multiple attempts to provide a sufficient Section 2019.210 disclosure before dismissing the 

challenged trade secrets—a ruling on the merits of the plaintiff’s claim. Dkt. 1107-4 at 9 (citing 

Jobscience, Inc. v. CVPartners, Inc., No. C 13-04519 WHA, 2014 WL 1724763, at *4 (N.D. Cal. May 

1, 2014). Waymo should not be deprived of even one opportunity to amend to comply with Section 

2019 and thus exclude any relief on TS 96, which would at this stage constitute an improper summary 

judgment ruling. 

DATED: September 1, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

Case 3:17-cv-00939-WHA Document 1474-1 Filed 09/05/17 Page 11 of 11