Is this the 'smoking gun'? Uber promised former Waymo engineer legal aid

June 23, 2017

It's hard to believe, but Uber's no good, very bad week, just got less good and even worse. Following the resignation of the company's embattled CEO, Travis Kalanick, a document has emerged that suggests Uber knew about a massive theft of trade secrets from Waymo, which was carried out by one of Uber's former lead engineers.

The document in question is the employment contract that Uber issued to the former head of its self-driving car program, Anthony Levandowski. Unsealed last week, close readings of the contract have revealed a clause wherein Uber promised to cover the cost of any legal actions taken against Levandowski by his former employer, Waymo.

Per the contract, such actions might arise due to the information that Levandowski brought with him from Waymo--not physically, but in his head. 

Here's a recap of the high and low points of this courtroom drama to date:

1. Levandowski worked at Google for nearly nine years as a software engineer. He was a key player in the company's self-driving car program, which has since spun off into its own company called Waymo.

2. Levandowski left Waymo in January 2016 to start a self-driving trucking company called Otto. Before he departed, Waymo claims that Levandowski stole a huge trove of information from his employer. According to Waymo:

"We found that six weeks before his resignation this former employee, Anthony Levandowski, downloaded over 14,000 highly confidential and proprietary design files for Waymo’s various hardware systems, including designs of Waymo’s LiDAR and circuit board. To gain access to Waymo’s design server, Mr. Levandowski searched for and installed specialized software onto his company-issued laptop. Once inside, he downloaded 9.7 GB of Waymo’s highly confidential files and trade secrets, including blueprints, design files and testing documentation. Then he connected an external drive to the laptop. Mr. Levandowski then wiped and reformatted the laptop in an attempt to erase forensic fingerprints."

3. Waymo sued Uber in February of this year, claiming that Uber was using the trade secrets Levandowski stole on its own self-driving cars. Waymo alleged that Kalanick conspired with Levandowski to steal the documents, knowing that Uber would buy Levandowski's company, Otto, soon afterward. (In fact, Uber did buy Otto eight months after launch, in August 2016.)

4. U.S. District Judge William Alsup thought that Waymo had a compelling case, but he wanted additional proof before ordering Uber to suspend its self-driving car program. At a hearing last month, however, Waymo failed to produce the goods. Alsup said point-blank that Waymo hadn't managed to produce "a smoking gun".

5. Last week, Waymo filed a new document with the court alleging that Kalanick and Levandowski discussed the stolen documents before Levandowski was officially hired by Uber. Levandowski had stored the files on five CDs, but Kalanick didn't want him to bring the discs to Uber. It's unclear from reports how Kalanick and Levandowski carried on their conversation, but it may have been via email.

Which brings us to today.

While there's no evidence that Levandowski actually brought the stolen data to Uber, his new employer did include an unusual clause in Levandowski's contract. That clause promises to pay for Levandowski's defense in court if he were to be sued by Waymo for using trade secrets he happened to remember from his previous employer. 

If Waymo's allegations are correct, it suggests that Kalanick and Uber knew about Levandowski's misdeeds and that they were willing to turn a blind eye--so long as he didn't bring the stolen data to Uber's offices or store it on Uber hard drives. That, in turn, would show that, while Uber followed the letter of the law, the company violated its spirit. Whether that might be the "smoking gun" that Alsup requested remains to be seen. 

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