Alarm Didn’t Ring at Waymo Before Uber Was Sued for TheftBy and
Alphabet engineer who investigated called data ‘low-value’
Expert says new evidence won’t be enough to derail lawsuit
“Low-value” was the engineer’s assessment while investigating the downloading of files by driverless car executive Anthony Levandowski four months before Waymo called him a traitor in a high-stakes lawsuit headed to trial next month.
Uber is now trying to use its adversary’s internal emails from October 2016 -- unsealed in court records Wednesday -- to undermine Waymo’s claims that Levandowski helped steal thousands of files encompassing seven years of research and development when he switched employers. Waymo responded that Uber “is trying to make something out of nothing.”
In a message responding to an outside lawyer who had said “it’s a little strange” that Levandowski only accessed a particular server once in December 2015, hardware engineer Sasha Zbrozek said the data was “low-value enough” that the company considered hosting it off its servers.
“He was a high-level manager, and not doing any direct technical contribution at this level,” Zbrozek wrote in the Oct. 5 email exchange. “It’s not particularly surprising that he might check things out once in the misguided dream of maybe making individual contribution or maybe taking a look at the progress of a widget. It clearly wasn’t part of his routine. Doesn’t ring the alarm bells for me.”
At least one legal expert was skeptical about how damaging the email is for Waymo.
"The disclosure doesn’t really change the merits of Waymo’s case," said Eric Goldman, a professor at Santa Clara Law School. "I doubt this email chain will be able to bust the trade secrets and Waymo’s case."
Uber and its co-defendant in the case, Otto Trucking, a startup founded by Levandowski, are aiming to use the message to show Waymo didn’t safeguard the information in dispute carefully enough for it to be legally designated as trade secrets.
Google keeps its most prized intellectual property and software on its own robust data centers, a way to ensure security and protect strategic assets from rivals. If the company considered hosting electronics designs in self-driving systems on external servers, as Zbrozek’s email suggests, it may indicate that it’s less of a priority.
Zbrozek is a veteran of Google’s self-driving car project, starting there in 2011, according to his LinkedIn profile. The hardware engineer lists his work on radar and sensor equipment, the central technology in the lawsuit.
“For months, Google has based its lawsuit on 14,000 files they claimed were critically important,” Uber spokesman Matt Kallman said in an email. “Now we learn from internal emails that Google knew from the beginning that these files were actually considered ’low-value.’ This is why Google has been fighting so hard to conceal the emails that are being made public today."
Still, Goldman said even if the Alphabet engineer’s characterization of the trade secrets as low-value is accurate, that doesn’t get Uber off the hook if they were stolen.
“It’s still a problem and the law will redress it,” the professor said. “Normally you wouldn’t want to put your best assets on a third-party server but that information can still qualify as a trade secret.”
Goldman also noted that Zbrozek’s assessment may not be widely shared -- and Waymo may have testimony contradicting it.
Waymo said Wednesday there’s plenty of other evidence that the ride-hailing company is using stolen trade secrets.
“The emails reflect initial impressions of a limited set of facts at only the very beginning of the investigation,” Waymo said in a statement. “As we later learned, Levandowski downloaded the files on the very same days he met with Uber and he actively tried to erase his digital footprints, suggesting he knew he was taking valuable materials.”
Waymo said in its February complaint in San Francisco federal court that it had been inadvertently copied on an email from one of its vendors, which had an attachment showing an Uber lidar circuit board that had a “striking resemblance” to Waymo’s design.
Lawyers for Waymo and Uber are now in a frenzied preparation for a trial set for Oct. 10. Levandowski has refused to testify in the case, asserting his constitutional protection against self-incrimination. Uber fired him in May.
Waymo’s investigation began in February 2016, almost immediately after Levandowski left the company, according to an Otto Trucking filing. Google is pursuing claims against Levandowski in arbitration but the filing shows the investigation cast a wider net than was previously known.
Google was known to have investigated Levandowski and two other former Waymo employees who it also accused of taking proprietary files.
Recent disclosures show that a Google forensic analyst worked with lawyers at the firm Keker, Van Nest & Peters to investigate 13 employees who left in 2016. Otto Trucking wants the names of those former Google employees, information it says Waymo is withholding, according to the filing.
The case is Waymo LLC v. Uber Technologies Inc., 17-cv-00939, U.S. District Court, Northern District of California (San Francisco).