(The opinions expressed here are those of the author, a
columnist for Reuters.)
By Alison Frankel
NEW YORK, March 29 You know a case is momentous
when a seemingly routine proposed briefing schedule turns into a
hot dispute. Waymo’s patent and trade secrets suit accusing Uber
of hijacking its technology for driverless cars is only five
weeks old, but lawyers for both sides are already deep in
litigation chess games.
On Monday, Uber’s lawyers at Morrison & Foerster and Boies
Schiller & Flexner filed a motion to compel arbitration of
Waymo’s trade secrets and California unfair competition claims.
The motion claimed Waymo’s lawyers at Quinn Emanuel Urquhart &
Sullivan are trying to get away with a bit of litigation
According to Uber, the crux of Waymo’s case, filed in
federal court in San Francisco, is that engineer Anthony
Levandowski, who led Waymo’s self-driving tech team for years,
downloaded more than 14,000 sensitive files before he left the
company to start up his own self-driving venture, which was
later acquired by Uber.
Levandowski, Uber said, signed two different employment
contracts during his nine-year stint at Google and Waymo, both
of which are subsidiaries of Alphabet. The agreements contained
provisions requiring the engineer to arbitrate disputes with the
Uber’s lawyers argued that because Waymo is accusing Uber of
benefiting from Levandowski’s supposed violation of his
employment contract, Levandowski’s arbitration clause applies.
Uber’s brief cited cases to back its argument, which is
based on the legal principle of equitable estoppel.
In the closest parallel to the Waymo case, a federal judge
in San Jose ordered the tech company Torbit to arbitrate its
case against a fired software developer who allegedly misused
Torbit trade secrets when he started his own company, Datanyze.
Datanyze wasn’t subject to the employment agreement between
Torbit and the developer, but the judge ruled the claims against
the company were intertwined with allegations against the former
But Waymo, unlike Torbit in the Datanyze case, did not name
its former employee as a defendant. It sued only Uber, not
Levandowski, the former Waymo engineer who supposedly
misappropriated Waymo data and brought it to his new employers
"DELIBERATE ATTEMPT" TO BYPASS PRECEDENT
Uber’s motion called that elision a deliberate attempt to
get around precedent requiring Waymo to go to arbitration.
“Despite the myriad allegations about Levandowski’s serious
misconduct while a Waymo employee, Waymo omits him as a named
defendant,” Uber’s motion said. “Waymo’s purpose for proceeding
in this curious manner seems clear: through artful pleading, it
hopes to avoid arbitrating the misappropriation … claims at all
Waymo, meanwhile, contends there is something fishy about
the timing of Uber’s motion to compel arbitration. Uber first
suggested at a hearing on March 16 that it would try to force
Waymo into arbitration instead of litigating in federal court.
On March 22, according to Waymo, Uber lawyer Arturo Gonzalez
of MoFo said in an email to a Waymo lawyer that the motion would
be filed the following day. Instead, Uber waited until three
days later to file its motion.
The timing is significant because the judge overseeing the
litigation, U.S. District Judge William Alsup of San Francisco,
has scheduled a May 4 hearing on Waymo’s motion for a
preliminary injunction to block Uber from using supposedly
The judge told both sides at the March 16 hearing that he
didn’t want to go to the trouble of a preliminary injunction
hearing if the case is going to end up in arbitration.
Uber has proposed an expedited schedule to get its motion
before Judge Alsup on April 13, three weeks before the May 4
injunction hearing. The proposed schedule would only give Waymo
until April 3 to file its opposition to Uber’s arbitration
That’s not long enough, Waymo said in a filing Tuesday - and
Waymo should not be disadvantaged by Uber’s delay. If Uber had
filed its motion on March 23, Waymo said, an ordinary briefing
schedule would have given Waymo a full allotment of 14 days to
oppose arbitration and still allowed Judge Alsup to hold a
hearing before the May 4 injunction session.
“Rather than accept the consequences of their own delay,
defendants have asked Waymo to sacrifice half of its 14 days to
respond to defendants’ motion so that their motion could be
heard before May 4,” Waymo said. “It is unreasonable for
defendants to seek to have Waymo’s response time cut in half
simply because defendants delayed filing their motion.”
HIDING ARGUMENTS UNDER SEAL
Judge Alsup, who is all too familiar with the relentless
litigation tactics of big tech companies from previously
presiding over a hard-fought case between Google and Oracle,
said in an order Tuesday that he intends to grant “a measure” of
Uber’s proposed hurry-up schedule.
He also said he’s not happy about the extent of redaction in
Uber’s motion to compel arbitration. “Our federal courts belong
to the public, and the public and the press have a legitimate
interest in looking over our shoulders to see the work in
progress,” he wrote. “Parties should not hide those arguments
under seal out of a desire to shroud business dealings in
That part of Judge Alsup’s order prompted Uber on Tuesday to
blame Waymo for the redactions – even as Uber requested a secret
meeting in the judge’s chambers “to protect legitimate privacy
concerns” unrelated to the redactions.
Uber said it only blacked out portions of its arbitration
motion because Waymo’s former parent, Google, insisted “that the
existence of an arbitration (provision) and every word in its
employment agreements must be kept in strictest confidence.”
I emailed lawyers for both Uber and Waymo to ask about the
litigation gamesmanship. None got back to me.
(Reporting by Alison Frankel. Editing by Alessandra Rafferty.)