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ACTIVE/92539348.4

DEFENDANTS' OPPOSITION TO WAYMO'S MOTION

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

Neel Chatterjee (SBN 173985)

nchatterjee@goodwinlaw.com

James Lin (SBN 310440) 

jlin@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

Hayes P. Hyde (SBN 308031) 

hhyde@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

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

DEFENDANTS’ OPPOSITION TO 

WAYMO’S MOTION FOR PARTIAL 

SUMMARY JUDGMENT

Date: Thursdays 

Time: 8:00 a.m. 

Courtroom: 8 

Judge: Hon. William Alsup

REDACTED VERSION OF DOCUMENT 

SOUGHT TO BE SEALED

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ACTIVE/92539348.4 -iDEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

TABLE OF CONTENTS

Page

I. PRELIMINARY STATEMENT............................................................................................1

II. UNDISPUTED FACTS .........................................................................................................2

A. Waymo Investigates Mr. Levandowski’s Activities and Finds No 

Misconduct. ................................................................................................................2

B. After Learning about Uber’s Acquisition of Ottomotto, Waymo Accelerates 

the Investigation with the Help of Keker Van Nest & Peters. ...................................3

C. Waymo’s SVN Administrator Informs Litigation Counsel that Mr. 

Levandowski’s SVN Conduct is Not Suspicious.......................................................4

D. Litigation Counsel Influences the Investigation to Find Misconduct by Mr. 

Levandowski. .............................................................................................................6

E. Waymo’s Investigators Pursue Incorrect Theories of Mr. Levandowski’s 

Misconduct. ................................................................................................................6

F. Waymo Engages in Litigation Misconduct to Obfuscate Disagreement with 

Its Theories.................................................................................................................7

1. Waymo Hid the Identities of Key Witnesses from Discovery. ......................7

2. Waymo Selectively Waives Privilege to Withhold Damaging 

Communications that Undermine its Conclusions and Violates The 

Court’s Orders. ...............................................................................................9

III. ARGUMENT .......................................................................................................................11

A. The Court Should Deny Waymo’s Motion for Summary Judgment as to 

Unclean Hands Based on Its Litigation Misconduct................................................11

B. The Court Should Deny Waymo’s Motion With Respect to Failure to 

Mitigate Damages. ...................................................................................................15

IV. CONCLUSION ....................................................................................................................17

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ACTIVE/92539348.4 -iiDEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Gilead Sciences, Inc. v. Merck & Co, Inc.,

13-cv-040570BLF, 2016 WL 3143943 (N.D.Cal. June 6, 2016)...............................2, 12, 13, 15

GSI Tech., Inc. v. United Memories, Inc.,

No. 5:13-CV-01081-PSG, 2015 WL 12942201 (N.D. Cal. Oct. 14, 2015)...............................17

Intamin, Ltd v. Magentar Tech., Corp.,

623 F. Supp. 2d 1055 (C.D. Cal. 2009)..........................................................................11, 13, 14

McCormick v. Cohn,

No. CV 90-0323 H, 1992 WL 687291 (S.D. Cal. July 31, 1992)........................................13, 14

California Cases

Thrifty-Tel, Inc. v. Bezenek,

46 Cal. App. 4th 1559 (1996).....................................................................................................16

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

I. PRELIMINARY STATEMENT 

Waymo has moved for partial summary judgment on some affirmative defenses alleged by 

Defendants, on the basis that Defendants purportedly did not propound interrogatories relating to 

them. This position ignores the fact that Defendants have procured evidence supporting their 

affirmative defenses.

Unclean Hands: From the beginning, Waymo has made its trade secrets claim about 

Anthony Levandowski’s alleged improper downloading of 14,000 files from Waymo’s SVN 

server. See Compl. at ¶¶4, 44. It has called them the “crown jewels of the kind of technology that 

we are talking about [autonomous driving].” Declaration of Hong-An Vu, Ex. 1, 8/16/17 Hr’g at 

71:1-12. This was a lie. 

Prior to initiating this action, Sasha Zbrozek, the Chauffeur engineer who set up the SVN 

server from which Waymo’s purported trade secrets were allegedly downloaded, informed counsel 

for Waymo that the documents contained on the SVN server were “low-value” and “second class 

citizens.” Id. at Ex. 2. Mr. Zbrozek’s communications led Waymo’s outside counsel to state in 

internal communications that the SVN files “ ”—the exact opposite of 

Waymo’s representations to the Court. Id. at Ex. 3 at 86898. In addition, the day before Waymo 

initiated this lawsuit, when asked to provide the number and size of the files Anthony 

Levandowski allegedly downloaded from the SVN server, Mr. Zbrozek stated: 

 

Despite this cautionary communication, the very next day, Waymo filed its complaint 

alleging misappropriation of 121 trade secrets based on Mr. Levandowski’s Mr. Levandowski’s 

“extraordinary efforts to raid Waymo’s [SVN] server” and “downloaded 14,000 files, representing 

approximately 9.7 GB of highly confidential data,” Dkt. 23 at 3. Although it obtained the 

information for its claims from Mr. Zbrozek, as part of the preliminary injunction proceedings, 

Waymo did not submit a declaration from Mr. Zbrozek, instead having witnesses with no personal 

knowledge of the SVN server submit declarations. Waymo failed to disclose Mr. Zbrozek in the 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

three initial disclosures it served. Id. at Ex. 5-7. Waymo also failed to disclose Tom Gorman, an 

attorney at Keker, Van Nest & Peters LLP, who played a primary role in developing the theory of 

liability and misconduct advanced in this case. Waymo selectively waived privilege and withheld 

damaging documents like the communications with Mr. Zbrozek until Judge Corley ordered their 

production. This order came after Otto Trucking repeatedly sought the Court’s assistance and 

Waymo’s production of its investigation documents occurred the last day and continued well after 

the discovery cut-off. Such litigation misconduct supports an unclean hands defense, and 

demonstrates that there are disputed facts that undermine Waymo’s motion for summary 

judgment. Gilead Sciences, Inc. v. Merck & Co, Inc., 13-cv-040570BLF, 2016 WL 3143943, at 

*27 (N.D.Cal. June 6, 2016) (denying Merck $200 million award due to its unclean hands based 

on litigation misconduct).

Failure to Mitigate Damages: The recently produced documents that were improperly 

withheld as privileged also demonstrate Waymo’s failure to seek a preliminary injunction when it 

believed its trade secrets had been compromised. The evidence shows that Waymo had 

discussions in August 2016 about when and whether to reach out to Uber about Waymo’s belief 

that Mr. Levandowski had taken Google trade secrets. But instead of contacting Uber or moving 

for an injunction at that time, Waymo waited, not weeks as it contended, but six months after its 

second investigation into Mr. Levandowski and a year after its first investigation. Such delay is 

not reasonable if the alleged trade secrets truly were as valuable as Waymo now contends.

As to the remaining affirmative defenses addressed in Waymo’s motion for summary 

judgment, Otto Trucking waives its waiver, estoppel, laches, statute of limitations, release, 

preemption, prosecution history, and res judicata defenses. Uber also waives its waiver and 

acquiescence defenses. Defendants intend to pursue all other remaining affirmative defenses that 

are not part of Waymo’s motion for partial summary judgment 

II. UNDISPUTED FACTS

A. Waymo Investigates Mr. Levandowski’s Activities and Finds No Misconduct.

Anthony Levandowski left Google on January 27, 2016. Vu Decl. at Ex. 8. Immediately 

following his departure, Mr. Levandowski’s boss, Chris Urmson, ordered an investigation by 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

Human Resources into any possible misconduct by Levandowski, including into whether “he 

would have looked at files or downloaded things that were inappropriate for him to download.” 

Id. at Ex. 22. Google initiated the investigation on February 3, 2016, which included investigating 

whether Google’s trade secrets had been compromised. See id. at Ex. 10; Ex. 11 at 86805. 

Google’s forensic team, Gary Brown and Kristin Gudjonsson, imaged two laptops used by 

Mr. Levandowski at the time of his departure and analyzed them. See id. at Ex. 22, Gudjonsson 

Vol. I 198:22-199:9. A third desktop was not preserved and Google has not offered an 

explanation for its spoliation. See id. They also reviewed certain log information regarding Mr. 

Levandowski’s activities on the Google network. See id. 172:4-178:10. Gary Brown, who 

conducted the analysis, testified that he did not find any misappropriation of trade secrets. See id. 

at Ex. 26, Brown PI Tr. 31:17-24; see also Ex. 11. Consistent with Mr. Brown’s testimony, Mr. 

Urmson also testified that while the investigation identified documents Mr. Levandowski had 

accessed, “None of them seemed out of the ordinary.” Id. at Ex. 21,Urmson Tr. 182:12-16. 

(emphasis added). As discussed infra , Mr. Urmson’s assessment is consistent with a later review 

by the administrator of the repository from which Waymo now claims its trade secrets were stolen.

B. After Learning about Uber’s Acquisition of Ottomotto, Waymo Accelerates 

the Investigation with the Help of Keker Van Nest & Peters.

In late July 2016, after a number of employees departed Google for Mr. Levandowski’s 

new company, Ottomotto, Google renewed its investigation. Id. at Ex. 9. On or about August 4, 

2016, Keker Van Nest & Peters LLP (“Keker”) began running the investigation, and sent a 

Chauffeur Forensic Investigation Memorandum to Google. Id. at Ex. 12 at 86812. The scope of 

the investigation included whether any of the employees who have left Google to join Otto “

 Id. As part 

of this investigation, Keker asked the investigative team to look into any bulk downloads, 

connecting of any hard drives or removable media to Google devices, and the web browsing and 

searching history of the departing employees. Id. 

Waymo accelerated the investigation after Uber announced on August 18, 2016 that it was 

going to acquire Ottomotto. See id. at Ex. 13, Ex. 14. Uber was “

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

” and Mr. Urmson had previously written to Larry Page and Sergey 

Brin, the founders of Google, that 

. Id.; see also id. at Ex. 15. 

On August 23, 2016, after discussing accelerating the investigation with David 

Drummond, Google’s chief legal counsel at that time (and former Uber board member), the 

investigators communicated to the others that, “

et.” Id. at Ex. 16. That same day, the investigator’s notes about the investigation 

state, “

.” Id. at Ex. 12. Notably, the discussion with Mr. Drummond took place the 

same morning he tendered his resignation from Uber’s Board of Directors to then-Uber CEO 

Travis Kalanick. Id. at Ex. 29 at UBER00077201. 

From August 23-29, 2016, Google security personnel worked round the clock investigating 

at least ten Otto employees. Id. at Ex. 23, Gudjonsson 9/8 Tr. at 322:8-323:8. 

C. Waymo’s SVN Administrator Informs Litigation Counsel that Mr. 

Levandowski’s SVN Conduct is Not Suspicious.

On September 19, 2016, Tom Gorman, an attorney at Keker, contacted Mr. Zbrozek, the 

engineer who set up the SVN server containing materials relating to the Chauffeur circuit boards, 

to inquire about large downloads from the SVN server. Mr. Gorman also contacted Nick Vines, 

an engineer on Chauffeur, to inquire about downloading activity on Google’s 

 service. Id. at Ex. 2. Both responded that large downloads of data 

off of these repositories was normal practice.

On September 20, 2016, Mr. Vines informed Mr. Gorman, is similar to SVN in 

that it syncs files locally for work, so even if someone sync’d the entire folder that wouldn’t be out 

of normal operation.” Id. 

On October 5, 2016, Mr. Gorman received a log of Mr. Levandowski’s activities on the 

SVN. Id. After analyzing it, he concluded that Mr. Levandowski accessed the SVN server on 

December 11, 2015 and downloaded a large amount of data from the server, which he found to be 

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FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

anomalous and suspicious. See id. Mr. Zbrozek repeatedly rejected Mr. Gorman’s interpretation. 

For example: 

• Mr. Gorman asked Mr. Zbrozek, “[Mr. Levandowski] only accessed the SVN the one 

time on 12/11/2015? That’s a little strange isn’t it?” 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. (emphasis added). Indeed, Mr. 

Zbrozek had issued Mr. Levandowski passwords to the SVN server in March 2015. Id. 

at Ex. 25, Zbrozek 9/6/17 Tr. 287:23-289:18. 

• Mr. Gorman asked whether the one access that Google had on record was “truly out of 

character” or “whether we only have a short window of logs (and therefor no idea what 

his normal work pattern was.).” Id.at Ex. 2. Mr. Zbrozek responded that the logs only 

dated back to September or October 2015—just four months of activity relating to Mr. 

Levandowski. See id. (emphasis added). 

• Mr. Gorman also asked what materials were contained on the SVN server, to which 

Mr. Zbrozek responded, “It’s all electronics designs – schematics and PCB layouts, and 

the component library for their creation. It was considered low-value enough that we 

even considered hosting it off of Google infrastructure” and indeed was hosted off 

Google security infrastructures. See id. at Ex. 2 (emphasis added); see also Ex. 24, 

Janosko 8/25/17 Tr. 19:3-10 (

r); 27:1-10). 

• Mr. Gorman then asked, “If these schematics are considered low-value, then where is 

the high-value stuff stored? Sensor designs, etc.” Mr. Zbrozek responded that 

historically, “high-value has been algorithms and software. The hardware (at all levels) 

was a second class citizen.” Id. at Ex. 2. 

Based on his discussions with Mr. Zbrozek, Mr. Gorman acknowledged on October 5, 

2016 that the materials allegedly downloaded by Mr. Levandowski and that are the basis of 

Waymo’s claims in this case, “ .” Id. at Ex. 3 at 86898. 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

D. Litigation Counsel Influences the Investigation to Find Misconduct by Mr. 

Levandowski. 

Mr. Gorman ignored Mr. Vines and Mr. Zbrozek’s comments. He emailed the 

investigators, Gary Brown, Kristinn Gudjonsson, and others telling them that 

.” Id. Mr. Brown and Mr. Gudjonsson had no personal 

knowledge of the SVN server. Mr. Gorman repeated this theory again in the same 

communication, 

 See id. “

, he concluded. Id. 

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

the SVN log created by Mr. Zbrozek. 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” such as the limited data preserved related to Mr. 

Levandowski’s SVN activities. Id. at Ex. 26 Brown PI Tr. at 36:9-24; Ex. 27 Brown 30(b)(6) Tr. 

229:3-231:8 (emphasis added). Similarly, Mr. Gudjonsson, concluded that Mr. Levandowski 

.” Id. at Ex. 3. To reach this conclusion, 

Mr. Gudjonsson did not take into account the limited data available for SVN activity, and either 

did not investigate or ignored that Mr. Levandowski had been given two SVN passwords by Mr. 

Zbrozek in March 2015. See id.; see also id. at Ex. 25 Zbrozek 9/6/17 Tr. 287:23-289:18. . 

E. Waymo’s Investigators Pursue Incorrect Theories of Mr. Levandowski’s 

Misconduct.

With the seed of misconduct planted by Mr. Gorman, the investigators continued their 

investigation, hoping to find some misconduct by Mr. Levandowski. Indeed, in emailing with 

Waymo’s counsel regarding discrepancies and inconsistencies regarding log data about the 

internal searches conducted by Mr. Levandowski, Mr. Brown stated that 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

 Id. at Ex. 17. In addition, Mr. 

Gudjonsson testified that on two separate occasions he had developed theories that Mr. 

Levandowski suspiciously reformatted one of his laptops the day before he left the company and 

that he had arranged for someone to swap the hard drives out of one of his laptops after of his 

departure date. Id. at Ex. 23, Gudjonsson 9/8, Tr.460:12-461:6; see also id. at Ex. 18 at 84575 (“a 

). Both of these 

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

Additionally, Google investigators failed to review log information from Mr. 

Levandowski’s G Laptop or his work station computer or log information relating to prior 

downloading activity by Mr. Levandowski that may have provided exculpating theories for Mr. 

Levandowski’s December 11, 2015 alleged downloading. See also id. at Ex. 22, Gudjonsson Vol. 

I 198:22-199:5; id. at Ex. 27, Brown 30(b)(6) Tr. 58:3-16; 247:19-4; 98:3-101:19. 

F. Waymo Engages in Litigation Misconduct to Obfuscate Disagreement with Its 

Theories.

1. Waymo Hid the Identities of Key Witnesses from Discovery.

On February 22, 2017, counsel for Google emailed Mr. Zbrozek asking for information 

regarding the number and size of the files Mr. Levandowski allegedly downloaded to be used as 

part of the Complaint. Id. at Ex. 4 at 86940. In response, in an email including attorneys from 

Quinn Emanuel, Waymo’s current litigation counsel, Mr. Zbrozek expressed his concerns 

regarding Waymo’s theories:

 

Id. That same day, he sent counsel the SVN instructions that 

. Id. Despite this communication and Mr. Zbrozek’s prior communications about the 

low-value of the SVN materials and the regular practice of downloading the repository, Waymo 

filed its complaint the following day alleging that Defendants misappropriated its trade secrets 

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FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

based on Mr. Levandowski’s alleged downloading of 14,000 files from the SVN server, the very 

documents that Mr. Zbrozek had said were “low-value” and that Mr. Gorman had concluded were 

.” See Dkt. 1. At his deposition after the February 22 communication was 

produced, Mr. Zbrozek confirmed his concerns that 

 Id.at Ex. 25, Zbrozek 9/6 Tr. 239:17-25; 

261:3-18. 

In order to file its complaint, Waymo had to mischaracterized the downloading and 

the14,000 files at issue as trade secrets, even calling them the “crown jewels.” See Ex. 1, 8/16/17 

Hr’g at 71:1-12. Waymo’s media-driven in-court statements are directly contrary to Mr. 

Zbrozek’s statements and Mr. Gorman’s conclusions during the investigation. 

In moving for a preliminary injunction, despite asking Mr. Zbrozek whether he could 

provide testimony if necessary (Vu Decl. at Ex. 4), Waymo did not submit a declaration from Mr. 

Zbrozek. Instead, Waymo submitted declarations from Gary Brown and Michael Janosko—both 

of whom lacked knowledge of how the SVN worked and its security systems. Id. at Ex. 27, 

Brown 30(b)(6) Tr. at 48:9-49:19; Ex. 24, Janosko 8/25/17 Tr. 60:19-23. 

In his first deposition, Mr. Brown demonstrated that he had little knowledge of the SVN 

server’s contents and was instead provided logs by Mr. Gorman to analyze and to corroborate Mr. 

Gorman’s conclusions. Id. at Ex. 27, Brown 30(b)(6) Tr. at 48:9-49:19; 229:3-231:8; Ex. 26, 

Brown PI Tr. at 36:9-24. 

Mr. Janosko’s declaration attests to the advanced Google security infrastructure in an effort 

to convince the Court that Waymo had protected its trade secrets, when in fact, the SVN server is 

outside Google’s security network. See Ex. 19, Janosko Dec. at ¶ 25. 

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Id. at Ex. 24, Janosko 8/25/17 Tr. 28:1-10. 

. To be clear, Mr. Laykin did 

not test or attempt to access the SVN server. However, there 

were no security protections in place preventing him from doing so. 

When asked about the security systems that specifically applied to the SVN server, Mr. 

Janosko had limited knowledge and testified that he had never accessed the SVN and what he 

knew about it was provided by Mr. Zbrozek. See id. at 20:2-5; 60:19-23 (“

”). 

Waymo also failed to identify Mr. Zbrozek in its initial disclosures, first served on April 3, 

2017, and amended twice by June 22, 2017. Id. at Exs. 5-7. Waymo also did not disclose Nick 

Vines who had explained to Waymo’s counsel how downloading the entire SVN folder was 

normal operation. See id. Nor did Waymo disclose Tom Gorman who was heavily involved in 

the investigation. See id. Waymo also did not include Mr. Zbrozek, Mr. Vines, or Mr. Gorman as 

custodians and did not collect or produce their documents. Id. at ¶30. 

2. Waymo Selectively Waives Privilege to Withhold Damaging 

Communications that Undermine its Conclusions and Violates The 

Court’s Orders. 

Waymo also used the attorney-client privilege as a sword and shield to disclose selfserving aspects of its forensic investigation, while hiding damaging communications, like those 

with Mr. Zbrozek and Mr. Gorman, from discovery. See Dkt. 1272. Defendants did not receive 

unredacted versions of many critical documents regarding Waymo’s investigation until September 

2, 2017 (i.e. Vu Decl. Exhibits 2-4), after the fact discovery and motion to compel cut-off, after 

key depositions had been taken, and after several rounds of motion practice. Id. at ¶ 40. After 

Judge Corley found Waymo had waived this privilege on August 18, 2017, Otto Trucking has had 

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FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

to request the Court’s assistance in forcing Waymo to comply with the Court’s order four 

additional times, the most recent on September 6, when Waymo improperly continued to shield 

communications that were part of its privilege waiver. Dkt. 1479. 

After the Court’s August 18 waiver order, Waymo produced additional documents that 

were subject to the waiver on August 24 at 8:54 p.m., about three hours before the close of fact 

discovery. Vu Decl. at ¶ 32. Waymo continued to withhold information subject to the waiver 

through redactions, which forced Otto Trucking to address the issue at an August 28 hearing 

before Judge Corley. On August 30, Otto Trucking again appeared before Judge Corley to address 

Waymo’s privilege logs, which included documents that were subject to the waiver. Judge Corley 

ordered the parties to return the next day for an in camera review of the redacted documents. Id. at 

¶ 36; Dkt. 1412. At that hearing on August 31, Judge Corley reviewed the redactions on the 

documents that were produced post-waiver, as well as the privilege logs, and ordered additional 

documents produced. Vu Decl. at ¶ 37. On September 1, 2017, however, the day after Judge 

Corley reviewed Waymo’s privilege logs, Waymo produced an extensive and additional privilege 

log referencing more than 1,300 documents, some of which related to the forensic investigation. 

Id. at 38. On September 8, 2017, Otto Trucking sought a meet and confer and potentially court 

intervention regarding Waymo’s September 1 privilege log, but Waymo produced additional 

documents that same day. Id. at ¶ 42 

In short, every time that Otto Trucking has asked the Court to intervene and order the 

production of more documents subject to the waiver order, the Court has ordered more documents 

produced. Notably, each time Waymo has made another production, the documents have revealed 

more important information that has weakened its claims against Defendants. Id. at ¶ 43. Waymo 

has not voluntarily complied with the Court’s orders, producing documents only when repeatedly 

compelled by the Court. The disputes and Waymo’s stone walling continue. Since discovery 

closed, Waymo has produced over 1,600 additional documents, some of which relate to Waymo’s 

investigation and other discovery issues the parties have been discussing. Vu Decl. at ¶ 44. 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

III. ARGUMENT

Otto Trucking and Uber deny that Waymo has established any claim against them. Indeed, 

as set out in Otto Trucking’s motion for summary judgment, Waymo has no evidence that Otto 

Trucking has ever used any of the alleged trade secrets or any of the accused Uber systems that 

allegedly make use of Waymo’s alleged trade secrets. Dkt 1597. Uber has moved for summary 

judgment on two of Waymo’s trade secrets as well as Waymo’s sole remaining patent claim and 

denies that Waymo has established any other claim against Uber. Dkt 1423, 1514, 1518. 

However, to the extent that Waymo is able to prove any of its claims, any relief obtained is barred 

by Defendants’ affirmative defenses (including those not challenged by Waymo). There is 

evidence sufficient to create a dispute of material fact as to each element of Defendants’ unclean 

hands and mitigation of damages defenses. Thus, the Court should deny Waymo’s motion for 

summary judgment as to these defenses. 

A. The Court Should Deny Waymo’s Motion for Summary Judgment as to 

Unclean Hands Based on Its Litigation Misconduct

“He who comes into equity must come with clean hands. . . .Under this doctrine, plaintiffs 

seeking equitable relief must have acted fairly and without fraud or deceit as to the controversy at 

issue.” Intamin, Ltd v. Magentar Tech., Corp., 623 F. Supp. 2d 1055, 1074 (C.D. Cal. 2009) aff’d, 

404 F. App’x 496 (Fed. Cir. 2010) (internal citations and quotations omitted); see also id. at 1076-

77 (holding that the Ninth Circuit allows a litigant to bring an affirmative defense at the summary 

judgment stage whether or not it was specifically pled as an affirmative defense, and explaining 

that a plaintiff “is not prejudiced by [the defendant] bringing to the Court’s attention [the 

plaintiff’s] own misconduct”). As shown above, there is more than enough evidence establishing 

an unclean hands defense and Waymo’s motion for summary judgment should therefore be 

denied.1

 1 To the extent that Waymo may claim that Otto Trucking’s arguments in this motion regarding 

unclean hands is different from what it provided in its opposition to Waymo’s precis, such 

argument would be disingenuous. Otto Trucking filed its opposition before noon on August 24, 

2017, the day Waymo produced previously withheld communications with its investigators buried 

in the over 7,200 other documents it produced on the last day of discovery. Waymo has since 

produced more than 1,600 additional documents, as recent as September 8, 2017. Otto Trucking 

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FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

The doctrine of unclean hands can be and has been used to deny plaintiffs relief where they 

have engaged in litigation misconduct such as misrepresenting facts and hiding evidence of their 

misrepresentations in discovery. See Merck, 2016 WL 3143943 at * 29. Recently, a court in the 

Northern District of California denied plaintiff a $200 million judgment in a patent infringement 

action where plaintiff misled defendant and the court. Id. In Merck & Co, Merck sued Gilead for 

patent infringement based on information Merck improperly obtained by allowing one of its patent 

prosecutors, Dr. Durrette, to sit in on a call where Gilead’s affiliate revealed its confidential 

information about its developments as part of a discussion to collaborate with Merck. See id. at 

*8-10. Mr. Durette’s participation in the call was in violation of an agreement with Gilead that 

only allowed a “firewalled” individual—someone not involved in the development of any related 

products or prosecuting claims—could assess the merits of the potential collaboration. See id. 

Mr. Durette not only was an attorney prosecuting patents, he was at the time of the call in the 

process of applying for approval of the patent that Merck later claims Gilead infringed. See id. at 

*9. 

To obfuscate that he had obtained the basis for claims against Gilead, Dr. Durette waited to 

file claims against Gilead before the PTO until Gilead released its product. See id. at 11. In the 

litigation, Merck made Mr. Durette’s prosecution of claims against Gilead’s product central to its 

patent infringement claim. See id. at *32. With Merck’s approval, Mr. Durette then proceeded to 

provide false testimony that he did not participate in the collaboration call and only recanted when 

discovery revealed that he had participated in that call. See id. 31-32. 

The court found such conduct reprehensible and that Merck and Dr. Durette had misled the 

court and Gilead. See id. at *29. The Court further held that Dr. Durette’s misrepresentations 

related directly to Merck’s patent validity arguments. Id. at *32. The court held, “It is 

overwhelmingly clear to the Court that Dr. Durette sought at every turn to create the false 

impression that Merck’s conduct was above board.” Id. at *31. In reversing the $200 million 

 

did not have knowledge of Waymo’s litigation misconduct on the day that it filed its response. Vu 

Decl. at ¶ 32. 

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FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

judgment in favor of Merck for Gilead’s infringement, the Court held that by making Dr. Durette 

the “centerpiece of its case . . .Merck’s litigation misconduct infects the entire lawsuit.” Id. at *32. 

Other courts have barred plaintiffs’ relief where they withheld the documents from 

discovery that revealed plaintiffs’ misrepresentations. In McCormick v. Cohn, affirmed by the 

Ninth Circuit, the district court denied plaintiffs relief because they had misrepresented that they 

were 100% owners of a copyright and engaged in discovery abuse by “violating a court order 

requiring the plaintiffs to produce documents which would have had an impact on the defense of 

the copyright claims.” Id., No. CV 90-0323 H, 1992 WL 687291, at * 4–5 (S.D. Cal. July 31, 

1992), aff’d, 17 F.3d 395 (9th Cir. 1994). Similarly, in Intamin, Ltd v. Magnetar Techs. Corp., 

affirmed by the Federal Circuit, the district court granted summary judgment to defendant where 

plaintiff had forged an assignment supporting its rights to a patent and did not disclose the 

existence of this assignment during the course of discovery. 623 F. Supp. 2d at 1055, 1059-60. 

Like the plaintiffs in the above cases, Waymo has engaged in misconduct in this litigation 

that directly relates to issues central to its claims—in particular, that the 14,000 SVN files contain 

trade secrets and that their alleged downloading by Mr. Levandowski was unlawful. Like Merck, 

Waymo has “sought at every turn to create the false impression” that its forensic investigation 

proved that Mr. Levandowski had stolen valuable trade secrets from Waymo by downloading 

14,000 files—the entire repository—from Waymo’s SVN server. But discovery has revealed 

otherwise. 

• Waymo’s own counsel acknowledged that the SVN files “

after being told by Mr. Zbrozek that they were “low-value” and “second-class.” 

• Mr. Zbrozek also informed Waymo counsel that the SVN files were not treated by 

Google as highly sensitive materials as 

. 

• Mr. Zbrozek told Waymo’s counsel multiple times that downloading the entire SVN 

repository did not concern him and that it was regular practice for engineers on 

Chauffeur to do so. 

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FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

• Mr. Brown, one of the investigators, alerted counsel to discrepancies in the log files on 

which they were basing their conclusions and told them that “log diving” often led to 

• The day before Waymo filed its lawsuit, Mr. Zbrozek told Waymo’s attorneys, 

including attorneys from Quinn Emanual, that he was “

Waymo ignored the information provided by knowledgeable witnesses, and filed its 

misappropriation claim based on the downloading of the 14,000 files the following day. Indeed, 

Mr. Zbrozek testified that he felt that the Waymo attorneys ignored his opinions. In the litigation, 

Waymo emphasized the value of the 14,000 documents and how anomalous Mr. Levandowski’s 

downloading of files was, securing a preliminary injunction on these misrepresentations. It 

provided irrelevant testimony from a security engineer about the advanced protections of Google’s 

security infrastructure—which do not apply to the SVN server. The only purpose of providing 

four pages of irrelevant facts was to create the false impression that Waymo’s 

e. Waymo’s presentation of its case contrary to facts 

provided to it is sufficient evidence of litigation misconduct to support Otto Trucking’s unclean 

hands defense and warrant denial of Waymo’s motion for summary judgment. 

In addition, like the plaintiffs in Intamin and McCormick, Waymo sought to hide the 

evidence of its misrepresentations. Waymo hid Mr. Zbrozek’s identity from disclosure, finding 

instead witnesses to attest to aspects of the SVN server of which they have no personal knowledge 

other than what was provided by Mr. Zbrozek. Waymo also failed to disclose Nick Vines and 

Tom Gorman. Waymo withheld from production the damaging communications with Mr. 

Zbrozek, while selectively producing privileged materials that advanced its false narrative. Only 

after being compelled to produce its privileged materials regarding the investigation did the 

damaging documents come to light. Even then Waymo violated the Court’s order to produce all 

documents relating to its investigation as Otto Trucking had to seek Judge Corley’s assistance four 

additional times, which resulted in the further production of documents or testimony from 

Waymo, up to and including a production of two additional documents on September 8. 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

Finally, the Court should consider that Waymo’s attorneys had advanced the false 

impression of the value of 14,000 files and the suspiciousness of their downloading by Mr. 

Levandowski. In Merck, the court found Dr. Durrette’s conduct especially egregious because he 

was an attorney with a duty of candor to the court. See Merck, 2016 WL 3143943 at *32. Here, 

Waymo’s outside litigators influenced the investigation by providing conclusions for the 

investigators to corroborate. Its counsel represented to the Court that the downloaded files were 

the “crown jewels” of self-driving technology—the exact opposite of what Mr. Gorman concluded 

in internal communications. Waymo’s counsel has directed the litigation misconduct in this case.

Defendants have adduced more than enough evidence demonstrating Waymo’s litigation 

misconduct. The Court should deny Waymo’s motion as it relates to the unclean hands defense. 

B. The Court Should Deny Waymo’s Motion With Respect to Failure to Mitigate 

Damages.

As Waymo stated in its precis (Dkt. 1592), failure to mitigate damages in the trade secrets 

context refers to, inter alia, a plaintiff’s duty to seek a preliminary injunction rather than letting 

damages accrue unchecked. See Vu Decl. Ex. 22 HANDBOOK OF INTELL. PROP. CLAIMS & 

REMEDIES § 5.03 (2017 Supp.). Notably, Waymo has dropped this citation from its motion for 

summary judgment and has not cited to any cases or authority relating to mitigation of damages. 

This is because Waymo has failed to meet its duty to mitigate by delaying in seeking injunctive 

relief as to Otto Trucking. 

Waymo’s contention that it delayed a mere nine weeks after it inadvertently received a 

communication allegedly showing that Uber was using Waymo’s alleged trade secrets is irrelevant 

to Otto Trucking and inaccurate as to Uber. As Waymo admits in its opposition to Otto 

Trucking’s precis requesting leave to file summary judgment, Waymo has no evidence that Otto 

Trucking is involved in the development of LiDAR or that it has used the purported trade secrets. 

Dkt. 1499 and1502. Thus, Waymo did not gain any information that would add to its claim 

against Otto Trucking. As to Uber, as discussed supra, Waymo deliberately did not inform Uber 

about its trade secret concerns in August 2016 when Uber acquired Otto, and Waymo’s Offer of 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

Proof confirms that Waymo stakes its case on the 14,000 files, which Waymo also knew about 

months earlier yet continued to withhold its concerns from Uber. 

Instead, as of at least October 5, 2016, Waymo was aware of its allegations that Mr. 

Levandowski had downloaded the entire SVN server. Vu Decl. at Ex.2. But Waymo did not 

notify Uber, Mr. Levandowski’s new employer, of its concerns. Nor did it file a claim for 

misappropriation of trade secrets against Mr. Levandowski at that time—or ever as Waymo has 

repeatedly stated that it is not seeking misappropriation of trade secrets as to Mr. Levandowski in 

the arbitration. See Dkt. 204 at 1-2. 7-8, 13, 22. Rather, Waymo waited until February 23, 2017 

to initiate this action and March 11 to seek a preliminary injunction. Dkt. 1. This delay of six 

months was not reasonable and creates a triable issue of fact regarding Waymo’s compliance with 

the duty to mitigate damages. See Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1568–69 

(1996) (denying some damages where plaintiff did not call defendants about an alleged hacking 

and delayed five months in bringing a lawsuit). 

The record further shows that Wamo did not care about Mr. Levandowski or his 

companies. It accelerated its investigation into the alleged compromise of its trade secrets after it 

learned about Uber’s acquisition of Ottomotto. Waymo made the strategic choice to delay in 

suing Otto Trucking until it could cobble together a way to sue Uber. See Thrifty-Tel, 46 Cal. 

App. 4th at 1568–69. The Court should deny Waymo’s motion as to Otto Trucking. 

With respect to Uber, the timeline Waymo presented to the Court does not square with 

reality. Waymo claims it filed suit weeks after inadvertently receiving a vendor email meant for 

Uber. What Waymo fails to mention is that months prior to receiving the vendor email it began 

investigating a compromise of its alleged trade secrets. By the end of July and early August 2016, 

the investigation involved outside counsel from Keker. Vu Decl. at 9, Ex. 12. Waymo accelerated 

its investigation after learning about Uber’s imminent acquisition of Ottomotto. Id. at Ex. 14. On 

August 23, 2016, internal discussions at Waymo revealed that 

 Top Google 

lawyer David Drummond was involved in these discussions the same day he submitted his Uber 

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

board resignation to Travis Kalanick. Vu Decl. at Ex. 15; Ex. 29. These discussions, and others 

only produced after Otto Trucking moved to compel selectively withheld documents regarding 

Waymo’s investigation of Mr. Levandowski, create a dispute of fact as to whether Waymo only 

waited weeks to seek injunctive relief as to Uber. 

Major inconsistencies have emerged in Waymo’s timeline. These inconsistencies create an 

issue of fact as to Waymo’s motive in filing this lawsuit, which Judge Grewal concluded is 

relevant to a failure to mitigate defense. See GSI Tech., Inc. v. United Memories, Inc., No. 5:13-

CV-01081-PSG, 2015 WL 12942201, at *2, 6 (N.D. Cal. Oct. 14, 2015) (denying motion in limine 

to exclude evidence of motive for filing suit because such evidence is relevant to, inter alia, 

affirmative defense of failure to mitigate damages).

IV. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court deny Waymo’s 

motion as to the unclean hands and failure to mitigate affirmative defenses.

Dated: September 12, 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

Dated: September 12, 2017 Respectfully submitted,

By: /s/Bill Carmody

MICHAEL A. JACOBS (SBN 111664)

MJacobs@mofo.com

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT Case No. 3:17-CV-00939-WHA

ARTURO J. GONZÁLEZ (SBN 121490)

AGonzalez@mofo.com

MORRISON FOERSTER

425 Market Street

San Francisco, California 94105-2482 

Telephone: 415.268.7000

Facsimile: 415.268.7522

KAREN L. DUNN (Pro Hac Vice) 

kdunn@bsfllp.com

HAMISH P.M. HUME (Pro Hac Vice)

hhume@bsfllp.com

BOIES SCHILLER FLEXNER LLP

1401 New York Avenue, N.W. 

Washington DC 20005

Telephone: 202.237.2727

Facsimile: 202.237.6131

WILLIAM CARMODY (Pro Hac Vice)

bcarmody@susmangodfrey.com 

SHAWN RABIN (Pro Hac Vice) 

srabin@SusmanGodfrey.com 

SUSMAN GODFREY LLP

1301 Avenue of the Americas, 32nd Floor 

New York, NY 10019-6023

Telephone: 212.336.8330

Attorneys for Defendant: Uber Technologies, Inc. and 

Ottomotto LLC

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DEFENDANTS' OPPOSITION TO WAYMO'S MOTION 

FOR PARTIAL SUMMARY JUDGMENT 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 12, 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 12, 2017. 

/s/Neel Chatterjee

NEEL CHATTERJEE

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