“Cheat codes. Find them. Use them,” said Travis Kalanick in April 2016, according to meeting notes dredged up during discovery in Waymo v. Uber. It’s just one of countless embarrassing quotes paraded out today during opening statements.
It’s been almost a year since Waymo first filed suit here in San Francisco. The intervening months have been a scorched-earth death match of litigation, with so many lawyers billing countless hours that the courtroom this morning was packed full of them, with hardly any room for the public. Journalists and spectators alike were crowded into an overflow room.
Why so much interest in a tech trial? Waymo v. Uber is putatively about LIDAR — a laser-based technology that can be used by self-driving cars to detect obstacles. But it’s really more of a circus than a lawsuit, and it’s been that way from the start, ever since Waymo — previously a Google project, now an Alphabet subsidiary that develops autonomous vehicles — filed suit almost a year ago.
The process of discovery has been deeply embarrassing for Uber, which, under new CEO Dara Khosrowshahi, is trying desperately to shed a villainous reputation. Documents like the Stroz Friedberg due diligence report and the Jacobs letter have made for sensational headlines, accompanied by the ever-astounding sideshow of Anthony Levandowski, who attempted to invoke the Fifth Amendment last year, and also is now the leader of a cult for some reason.
Even if the worst of it is excluded from evidence, the jury still got to hear counsel for Waymo read aloud the ridiculous pronouncements of Travis Kalanick — Uber’s former CEO — excerpted from emails and memos. “The golden time is over. It is war time.” “Reality that matters is catching up. This is the only reality that matters.” “This is all about winning. To win we have to cross the finish line first, losing is not an option.”
Kalanick is also recorded in meeting notes as saying that Uber wants “IP.” An email from an Uber executive says that an advantage of acquiring Ottomotto is that the team has “IP in their heads.” Another memo says that, “Laser is the sauce” and that former Google employee Anthony Levandowski, with his expertise in LIDAR, is the key to success.
All of this has Uber waving its hands around trying to draw attention back to the law in the case, begging the world to pay attention to what’s supposed to actually be at stake — eight alleged trade secrets, whittled down from over a hundred asserted by Waymo. It’s not clear that Uber ever used the trade secrets, it’s not clear that Uber ever received the trade secrets, it’s not even clear if the trade secrets are actually trade secrets — every part of that is up to the jury to decide.
Uber’s fear is, of course, that all the jury needs to hear is that the irreplaceable engineer Anthony Levandowski took 14,000 documents from Google before starting Ottomotto, a company that was shortly thereafter acquired by Uber.
Uber concedes that Levandowski “did some things at Google he shouldn’t have.” For one thing Levandowski repeatedly took meetings with Uber executives, including founder and erstwhile-CEO Travis Kalanick, while he was still employed at Google. In opening arguments, Waymo lawyer Charles Verhoeven pointed out that Levandowski suspiciously accessed internal documents right after those meetings.
But just because documents got accessed or downloaded doesn’t mean that Uber, or even Levandowski himself, did anything illegal. Sometime after the Ottomotto acquisition, as Google reviewed Levandowski’s electronic footprints right before he had left the company, one Google employee said of the supposed document heist, “It was considered low-value enough that we had even considered hosting it off Google infrastructure.”
In another email, the same employee expresses reservations about the much-vaunted theft of 14,000 documents. “I’m a little leery because both of those numbers aren’t really meaningful to any narrative,” he wrote. “It also has a chilling effect on being a hardware engineer — we all do full checkouts, and it makes me uncomfortable to think that lawyers are trying to ascribe suspicion to it.”
In opening arguments, counsel for Uber shaded Anthony Levandowski, suggesting that the boy wonder hadn’t actually offered much in the way of talent, that he had been difficult to work with, that Google knew early on that he was trouble. Uber, too, was a victim of Levandowski’s caprices, he seemed to imply, saying that Uber had fired Levandowski in the end. (He did not mention that Uber fired Levandowski after Waymo filed a lawsuit).
Uber is trying its best to cast Google as a has-been in the race for self-driving cars, crippled by massive attrition and brain drain. Waymo v. Uber, they’re trying to say, isn’t about trade secrets, but about the market scarcity for expertise in self-driving cars. It’s not illegal for a talented engineer to leave one company and join another, taking their brains and experience with them. And Google, Uber seems to say, is trying to punish an engineer for doing exactly that.
But the dividing line between trade secrets and talent is blurry, and in a case where only the jury is allowed to hear what the trade secrets actually are, none of us are in a position to opine on the matter. Trade secrets are only trade secrets so long as they are secret, and as in all trade secret litigation, the intellectual property at issue in this case has been under seal and is not available for the public to scrutinize. The lawyers will be talking about the trade secrets in broad terms so that the public can follow, but there’s only so much you can judge for yourself when the substance is subject to a protective order. Reporters will be banned from the courtroom when the lawyers are talking to the jury about the trade secrets.
As Uber has taken care to point out, Waymo doesn’t seem that interested in talking about the technology. (Waymo reserved fifteen minutes to discuss the trade secrets in opening statements this morning, Uber reserved over twice as much time). Instead, Waymo is pressing hard on extremely suspicious emails.
And why wouldn’t they? They have what seems to be a bottomless well of embarrassing quotes, the majority of which appear to be Travis Kalanick doing poor impressions of Tyler Durden from Fight Club. They don’t even have to go into the Stroz Friedberg due diligence report (parts of which are excluded from evidence) to make Anthony Levandowski and Travis Kalanick look like a pair of bandits. And what the Stroz Friedberg report suggests is that Levandowski and others really did think they were doing something wrong — they destroyed hard disks, they lied about destroying hard disks, they deleted texts about destroying hard disks, they deleted texts about deleting texts about destroying hard disks.
Because trade secrets are at issue, the actual substance of the case may never become clear to the public. But Waymo v. Uber has already made one thing abundantly clear: Levandowski loved the idea of being a bad guy and he was a man after Kalanick’s own heart. The two of them played fast and loose because they thought of themselves as mavericks who could lie, cheat, and steal. They are twin shadows that will loom over this trial, and ironically, there’s a pretty good chance that these two idiots did nothing wrong in the first place.