Waymo LLC v. Uber Technologies, Inc., 051117 CANDC, C 17-00939 WHA

Docket Nº:C 17-00939 WHA
Opinion Judge:WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
Party Name:WAYMO LLC, Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants.
Case Date:May 11, 2017
Court:United States District Courts, 9th Circuit, Northern District of California
 
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WAYMO LLC, Plaintiff,

v.

UBER TECHNOLOGIES, INC., et al., Defendants.

No. C 17-00939 WHA

United States District Court, N.D. California

May 11, 2017

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PROVISIONAL RELIEF

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this action for trade secret misappropriation, patent infringement, and unfair competition, plaintiff moves for provisional relief. The motion is Granted in part and Denied in part.

         STATEMENT

         By way of summary, this order finds plaintiff Waymo LLC has shown compelling evidence that its former star engineer, Anthony Levandowski, downloaded over 14, 000 confidential files from Waymo immediately before leaving his employment there. The evidence shows that, both before and after his departure, Levandowski and defendant Uber Technologies, Inc., planned for Uber to acquire Levandowski's new companies, defendants Ottomotto LLC and Otto Trucking LLC, and to hire Levandowski as the head of its self-driving car efforts. Moreover, defendants and Levandowski anticipated and took steps to defend against litigation with Waymo in connection with his move to Uber. Significantly, the evidence indicates that, during the acquisition, Uber likely knew or at least should have known that Levandowski had taken and retained possession of Waymo's confidential files. Waymo has also sufficiently shown, for purposes of the instant motion only, that the 14, 000-plus purloined files likely contain at least some trade secrets, and that some provisional relief is warranted while this case progresses toward trial. The scope of relief warranted at this stage, however, is limited by several countervailing factors. As nonexhaustive examples, not all of Waymo's 121 asserted trade secrets actually qualify as such, and few have been traced into the accused technology. Waymo's patent infringement accusations on this motion also proved meritless. Accordingly, this order grants important but narrowly-tailored provisional relief necessary to equitably balance the parties' competing needs at this stage. Now follow the details.

         * * *

         Waymo and Uber compete in the nascent self-driving car industry. Both companies have set their sights on developing custom, in-house Light Detection and Ranging (LiDAR) technology that helps self-driving cars “see” their surroundings. Both sides see such technology as a tremendous advantage over the commercially-available, off-the-shelf LiDAR systems currently used in self-driving cars.1

         Waymo has supplied a compelling evidentiary record that Levandowski resigned without prior notice from his position at Waymo under highly suspicious circumstances with over 14, 000 confidential Waymo files in tow to become the head of Uber's self-driving car team. Waymo now seeks to leverage that evidence into a preliminary injunction and other relief against defendants based on claims that defendants misappropriated Waymo's trade secrets and infringed its patents pertaining to LiDAR. For their part, defendants seek to steer Waymo's misappropriation claims into arbitration by invoking an arbitration clause in Levandowski's employment agreements with Waymo. Defendants' motion to compel arbitration is addressed in a companion order.

         The following is supported by the motion record and, unless otherwise indicated, is likely to be proven at trial, for the most part without contradiction.2

         In summer of 2015, while working for Waymo, Levandowski told coworker Pierre Yves Droz that it would be nice to create a new self-driving car startup; that he had talked with Brian McClendon, an Uber executive involved with Uber's self-driving car project; and that Uber would be interested in buying the team responsible for Waymo's LiDAR (Dkt. No. 25-31 ¶ 28).

         On December 3, 2015, Levandowski used his company-issued work laptop to search Waymo's intranet for “chauffeur svn login” and “chauffeur svn eee setup.” “SVN” referred to Waymo's password-protected repository of design files, schematics, and other confidential information (Dkt. No. 25-29 ¶¶ 12, 15). To protect the contents of the SVN repository, Waymo encrypted and authenticated all ingress and egress traffic against a regularly audited list of specific authorized users. Additionally, the SVN repository could be accessed only through specialized software called TortoiseSVN (Dkt. No. 25-47 ¶ 25).

         On December 11, 2015, Levandowski equipped his work laptop with TortoiseSVN, then used that laptop to download over 14, 000 files from the SVN repository. The 9.7 GBs of downloaded data included 2GBs from LiDAR subdirectories. On December 14, Levandowski attached a portable data transfer device to his work laptop for approximately eight hours. On December 18, he reformatted that laptop with a new operating system, wiping it clean. On January 4 and January 11 of 2016, he also used his corporate account credentials to export six additional documents pertaining to Waymo and LiDAR from Google Drive to a personal device (Dkt. No. 25-29 ¶¶ 16-19, 21-23).

         On January 5, Levandowski told Droz he planned to “replicate” Waymo's LiDAR technology at his new company (Dkt. No. 25-31 ¶ 27). Meanwhile, emails between Uber executives on January 12 and January 13 showed they had prepared a document titled “NewCo Milestones v5” for Levandowski to review in advance of a meeting the following day. While discovery has yet to unearth the document itself, Uber executive John Bares described it as “full of numbers all of which can and should be adjusted and negotiated . . . over the next week.” Referring to the same document, he told another Uber executive, “this list of deliverables is a high bar for sure. But then again so is what [Levandowski] is asking for in $$.” On January 15, Levandowski formed Ottomotto (Dkt. No. 27-21). Later in January, Levandowski admitted to Droz that he had met with Uber to look for investors for his new company (Dkt. No. 25-31 ¶ 29). On January 27, Levandowski resigned from Waymo without prior notice. By January 29, internal emails at Uber reflected communications made in confidence by Levandowski or his attorney and shared pursuant to “joint defense agreement” to further investigation for the purpose of obtaining or giving legal advice, “in anticipation of litigation, ” regarding “due diligence” for the potential acquisition of Ottomotto (Dkt. No. 272-2 at No. 2060). On February 1, Levandowski formed Otto Trucking (Dkt. No. 27-22).

         By March, Uber had directed Stroz Friedberg - a firm specializing in, among other things, digital forensics, intellectual property, and litigation support - to prepare a “due diligence report” on its investigation and analysis of files and electronic media from Levandowski. On April 11, defendants, Levandowski, and their counsel executed a written joint defense agreement (Dkt. No. 147-1). In other words, it seems Uber performed specialized “due diligence” on Levandowski with an eye toward jointly defending against potential intellectual property litigation with Waymo as a result of his move to Uber.

         In June and July, Sameer Kshirsagar (then a Waymo manager who, among other things, negotiated with LiDAR hardware suppliers) used his corporate account credentials to export five documents from Google Drive. In July, Radu Raduta (then a manufacturing engineer in Waymo's LiDAR department) likewise exported three more documents (see Dkt. No. 25-29 ¶¶ 24-29). In late July, Kshirsagar and Raduta left Waymo to join Levandowski at Otto.

         In August, Uber bought Otto for approximately $680 million and hired Levandowski to lead its self-driving car efforts. In his new position, Levandowski reported directly to Uber CEO Travis Kalanick (Dkt. Nos. 27-23, 27-25). At the time of its acquisition, Otto was working on a LiDAR project called “Spider, ” which continued at Uber until October 2016. In late October of 2016, Uber abandoned Spider in favor of its current LiDAR project, “Fuji.” Details about both Spider and Fuji are discussed further below in the context of the parties' arguments concerning Waymo's asserted trade secrets.

         Meanwhile, in summer of 2016, Waymo had become suspicious over the abrupt exodus of employees to join Levandowski and investigated the circumstances of their departures. Around October 2016, Gary Brown, a forensics security engineer at Google, discovered the aforementioned downloading by Levandowski, Kshirsagar, and Raduta (see Dkt. No. 25-3 at 9). On December 13, Waymo employee William Grossman became an accidental recipient on an email string among employees at Gorilla Circuits, one of Waymo's LiDAR component vendors. The email concerned Otto and Uber but somehow got mis-sent to Grossman. It was also sent to “Uber@gorillacircuits.com, ” featured the subject line “OTTO FILES, ” and appended machine drawings of a printed circuit...

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