Judge Blasts Uber and Waymo Lawyers; Delays Trial Until December

Both sides have schemed, obfuscated and abused the process, though with more to lose, Uber has been more responsible for the delay.

But this illustrates why these intellectual property cases are so fraught - and why so many end up getting settled out of court. JL


Joe Mullin reports in ars technica:

The federal judge presiding in the Waymo v. Uber lawsuit has delayed trial for another two months after castigating lawyers on both sides of the case for being dishonest and telling "half-truths."Using joint attorney-client defense privilege to try to keep things secret was an "elaborate scheme to conceal the facts from the public and particularly from Waymo." That made Uber mostly responsible. "Next time, maybe you ought to produce the documents."
The federal judge presiding in the Waymo v. Uber lawsuit has delayed trial for another two months after castigating lawyers on both sides of the case for being dishonest and telling "half-truths."
"I'm going to give you a schedule, and we're not going to argue about it," US District Judge William Alsup said after a one-hour hearing today. "We're going to pick the jury on November 29. We will start the trial on December 4, and it will run until December 20."
The trial will decide whether Uber has misappropriated trade secrets from Waymo, Google's self-driving car spinoff. Until recently, Uber's self-driving car project was headed up by Anthony Levandowski, a former Googler who has been accused of downloading 14,000 files from Google before he left in January 2016. Levandowski, who is not a defendant in the case, hasn't answered questions about the allegations, instead pleading the Fifth Amendment.
Over the course of a 90-minute hearing today, the two sides had a heated dispute over what documents were produced and when depositions happened. Waymo lawyer Charles Verhoeven said that tens of thousands of documents were only handed over after the US Court of Appeals for the Federal Circuit recently ruled that Uber must hand over the "due diligence" report produced by Stroz Friedberg.
"To say that this volume is surprising is an understatement," said Verhoeven. "It's shocking. It's unbelievable."
"They knew when they chose the trial date that they might not even see the Stroz report," countered Uber's counsel, Arturo Gonzalez. "The vast majority of these devices [that Waymo still wants for discovery] are devices that Anthony Levandowski had in a storage facility in Turlock that he hasn't used since 2010. It's a bunch of old stuff. If they want to waste their time going through that, they can. But they haven't found anything, and they won't find anything. It's not good cause for a continuance."After interrogating lawyers from both sides about the details of the discovery process and what was represented in the briefs, Alsup held forth about what he was going to do. He started by criticizing Waymo's case.
"When this case started, Waymo had a strong case against Levandowski," Alsup said. "But it didn't sue Levandowski; it sued Uber."
He continued:

Waymo alleged that Uber had stolen its trade secrets and had been violating four patents. Waymo had people signing, under oath, statements about how they could tell the patents had been violated. It's now turned out that the patent claims have completely vanished. They've been dropped. The expert you had was way out of bounds. There was no patent infringement.
I think when Waymo got into this case, it thought it was going to go into the files and find an exact duplicate of the Waymo files. As it turns out, the product is dissimilar in a lot of ways. It may even be a vast improvement over what was going on Waymo. So they've come up short there.

But Alsup had harsher words for Uber. He said that using the joint attorney-client defense privilege to try to keep things like the Stroz report secret was an "elaborate scheme to conceal the facts from the public and particularly from Waymo." That made Uber mostly responsible for the delay. Uber also said, just this weekend, that it found that Levandowski's e-mails from his startup, Otto Trucking, hadn't been properly migrated to Uber and weren't produced.
"That seemed remarkable to me, after 25 years of doing what you lawyers have been doing and 18 years on the bench," Alsup said. "That the most important witness in the case, somehow his own files got overlooked. That's very suspicious."
With that, Alsup gave his order: the jury would be picked on November 29, and the trial would proceed on December 4. And that was final.At the end of the hearing, Uber's lawyer Arturo Gonzalez made a last-ditch plea that he had a scheduling conflict. He is scheduled to pick a jury in a different trial on November 27, the Monday after Thanksgiving.
"Well, you only need three of the lawyers over there to try this case," Alsup said, gesturing to Uber's table full of attorneys. "We will miss you greatly. I was looking forward to seeing you perform in this case. But next time, maybe you ought to produce the documents."
With that, Alsup got up and retired to his chambers.