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WAYMO’S OPPOSITION TO OTTO TRUCKING’S MOTION TO ENFORCE COURT’S JUNE 7, 2017 ORDER

QUINN EMANUEL URQUHART & SULLIVAN, LLP 

 Charles K. Verhoeven (Bar No. 170151) 

 charlesverhoeven@quinnemanuel.com 

 David A. Perlson (Bar No. 209502) 

 davidperlson@quinnemanuel.com 

 Melissa J. 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 

OPPOSITION TO OTTO TRUCKING’S 

MOTION TO ENFORCE THE COURT’S 

JUNE 7, 2017 ORDER (DKT. 563) AND TO 

JOIN AND ADOPT CO-DEFENDANTS 

UBER TECHNOLOGIES, INC. 

OTTOMOTTO LLC’S MOTION TO 

ENFORCE THE COURT’S JUNE 7, 2017 

ORDER (DKT. 563) 

PUBLIC REDACTED VERSION OF 

DOCUMENT SOUGHT TO BE SEALED 

Date: August 16, 2017 

Time: 8:00 a.m. 

Ctrm: 8, 19th Floor 

Judge: The Honorable William H. Alsup 

Trial Date: October 10, 2017 

Case 3:17-cv-00939-WHA Document 988 Filed 07/21/17 Page 1 of 5
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WAYMO’S OPPOSITION TO OTTO TRUCKING’S MOTION TO ENFORCE COURT’S JUNE 7, 2017 ORDER

As its title implies, Otto Trucking’s “Motion to Enforce the Court’s June 7, 2017 Order 

And To Join And Adopt Co-Defendants Uber Technologies, Inc. and Ottomotto LLC’s Motion to 

Enforce the Court’s June 7, 2017 Order” (Dkt. 843-3) is mostly a joinder to Uber and Ottomotto’s 

previously-filed Motion (Dkt. 797). Like Uber and Ottomotto’s Motion, Otto Trucking’s Motion 

argues that the damages contentions and witness disclosures in Waymo’s Rule 26(a) disclosures 

are insufficient under the Court’s June 7 Order (Dkt. 563). Waymo’s Opposition to Uber and 

Ottomotto’s Motion (Dkt. 934) already explained why Waymo’s damages disclosures and witness 

designations are sufficient and proper, particularly given Defendants’ still-incomplete production 

of documents that Waymo needs to guide its selection of an appropriate damages methodology in 

this case. The points made in Waymo’s Opposition to Uber and Ottomotto’s Motion apply 

equally to Otto Trucking’s Motion. For the sake of brevity, Waymo will not repeat those points 

here. However, Otto Trucking’s Motion does make two separate arguments that warrant a 

separate response. 

First, Otto Trucking argues that “[n]othing in any of Waymo’s two Rule 26 damages 

disclosures is specific to Otto Trucking. Nor is anything in Waymo’s Patent Local Rule 3-8 

damages disclosures specific to Otto Trucking.” (Mot. at 4:7-9) (citations omitted). But this is a 

red herring. Waymo’s damages disclosures are not “specific” to any Defendant because Waymo 

is relying on the same basic damages framework (unjust enrichment and reasonable royalty) for all 

three Defendants. (See Dkt. 843-10 at 18 (Rule 26(a) damages disclosures); Dkt. 843-11 (L.R. 3-8 

damages disclosures).) Moreover, Defendants’ belated production of damages discovery means 

that Waymo cannot yet differentiate its damages contentions with Defendant-specific numbers for 

each of the three Defendants. So there is nothing improper about the fact that Waymo’s damages 

contentions do not disclose an Otto Trucking-specific damages theory and do not (yet) disclose an 

Otto Trucking-specific damages number. 

The lack of an Otto Trucking-specific damages theory or damages number is also 

particularly appropriate here given that Uber, Ottomotto, and Otto Trucking are jointly and 

severally liable for the trade secret misappropriation in this case. See Brocade Commc'ns Sys., 

Inc. v. A10 Networks, Inc., 873 F. Supp. 2d 1192, 1217-18 (N.D. Cal. 2012) (“trade secret 

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WAYMO’S OPPOSITION TO OTTO TRUCKING’S MOTION TO ENFORCE COURT’S JUNE 7, 2017 ORDER

misappropriation is considered an intentional tort, and thus joint tortfeasors are jointly and 

severally liable . . . . Although the damages expert has not apportioned damages to each individual 

defendant, this is not fatal to Plaintiffs’ claims . . . .”) After all, Ottomotto and Otto Trucking are 

the corporate vehicles that were used to misappropriate Waymo’s trade secrets for the benefit of 

Uber. Anthony Levandowski officially formed Ottomotto on January 15, 2016 (while he was 

simultaneously employed by Waymo, consulting with Uber on Uber's self-driving car project, and 

negotiating the acquisition of Ottomotto). He officially formed Otto Trucking on February 1, 

2016 (five days after resigning from Waymo and while he was consulting with Uber on Uber's 

self-driving car project and negotiating the acquisition of Otto Trucking). Mr. Levandowski was 

acting for all three Defendants at various times in order to facilitate the misappropriation of 

Waymo's trade secrets. 

Uber entered into Agreements and Plans of Merger with each of Ottomotto and Otto 

Trucking of the formation of those entities. Pursuant to its 

Agreement and Plan of Merger, Otto Trucking was obligated and continues to be obligated to 

(which has now been acquired by 

Uber). Pending completion of the Mr. Levandowski remains 

one of two managing members of Otto Trucking and holds 

. (Judah Decl. Ex. 1.)1 Uber has an 

. If Uber does not 

 

The interweaving and concerted action of Uber, Ottomotto, and Otto Trucking regarding 

the misappropriation alleged in this case only accentuates why joint and several liability is proper, 

 

1

 References to “Judah Decl.” refer to the Declaration of James Judah filed concurrently 

herewith. 

Case 3:17-cv-00939-WHA Document 988 Filed 07/21/17 Page 3 of 5
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WAYMO’S OPPOSITION TO OTTO TRUCKING’S MOTION TO ENFORCE COURT’S JUNE 7, 2017 ORDER

such that Wayo need not articulate a separate damages theory or damages number against each 

Defendant. Brocade, 873 F. Supp. 2d at 1217-18; see also Clark v. Bunker, 453 F.2d 1006, 1010–

11 (9th Cir. 1972) (“Turning to damages, appellants' first argument is that no award of 

compensatory damages could be made against appellants other than Memorial Guardian Plans, 

Inc., because no other appellant was shown to have received any profits from the [trade secret] 

misappropriation and use of appellee's plan. It is sufficient to say that the trial court found 

appellants to be joint tortfeasors and hence jointly and severally liable for the damage sustained by 

appellee, and the record supports that finding.”) 

Second, Otto Trucking argues that “Waymo has admitted that all of its claims stem from 

the alleged development of the Spider and Fuji LiDAR systems. But Otto Trucking had no 

involvement in research and development for the Spider or Fuji LiDAR systems.” (Mot. at 4:15-

17) (citations omitted). This argument is unavailing for several reasons. First, Waymo has never 

“admitted” that its claims are limited to the Fuji and Spider LiDAR systems. While Waymo cited 

those systems as evidence of how Defendants have used Waymo’s trade secrets and infringed 

Waymo’s patent claims, Otto Trucking points to no statement where Waymo limited its claims to 

those two systems. Nor would such a limitation make any sense. For example, trade secret 

misappropriation can consist of improper “acquisition” of a trade secret, even without any “use” of 

that trade secret at all. See Cal. Civ. Code § 3426.1(b)(1); 18 U.S.C. § 1839(5)(A). So it makes 

no sense to say that Waymo’s trade secret claims are limited to use of Waymo’s trade secrets in 

Fuji or Spider. 

Moreover, even if Waymo’s claims were limited to Fuji and Spider, Otto Trucking cites 

nothing besides its own interrogatory responses for the proposition that it had no involvement in 

those two systems. (See Mot. at 4:16-26.) With discovery still ongoing, the question of whether 

Otto Trucking had any involvement in Fuji or Spider is clearly an open question of fact. Indeed, 

Otto Trucking’s argument that it cannot be liable because it had no involvement with those 

systems is essentially a back-door motion for summary judgment on the issue of liability and/or 

damages. This is obviously improper, as the Court expressly denied Otto Trucking’s request to 

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WAYMO’S OPPOSITION TO OTTO TRUCKING’S MOTION TO ENFORCE COURT’S JUNE 7, 2017 ORDER

move for summary judgment (Dkt. 764) and stated that Otto Trucking could not renew this request 

until “after the close of fact discovery.” (Id. at 1:21.) 

For the foregoing reasons, Waymo respectfully requests that Otto Trucking’s Motion be 

denied. 

DATED: July 21, 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 988 Filed 07/21/17 Page 5 of 5