If there are bodies to be uncovered in Waymo’s trade-secrets case against Uber Technologies Inc, Eric Friedberg would know where to find them. The computer forensics expert Uber hired to scrub the engineer at the center of the dispute, Friedberg resumed testifying in the fourth day of trial in San Francisco federal court. He delivered some of the most troublesome evidence yet – facts that ex-Uber Chief Executive Officer Travis Kalanick couldn’t attest to or said he couldn’t remember during his own testimony.
He described a report he wrote for Uber vetting Anthony Levandowski, the one-time Waymo engineer who formed his own self-driving startup, Otto, just before leaving the Alphabet Inc unit. Levandowski later sold the startup to Uber for more than $600 million in stock. Waymo accuses Levandowski of conspiring with Kalanick to steal its trade secrets. Levandowski admitted to Friedberg’s firm, Stroz Friedberg, that he had Google’s source code, design files, laser files, engineering documents and self-driving software. Jurors must figure out whether any of that information – much of it destroyed and unrecoverable – made its way into Uber’s driverless technology.
Waymo’s lawyers are trying to show that Uber didn’t want to really understand the risk it was taking with Levandowski and Otto. Bill Gurley, a former Uber board member, has said Kalanick duped the board at the April 11, 2016, meeting when it approved the deal by describing the investigation of Levandowski as complete, and the results of the report as clean.
“You were not able to complete your investigation by April 11th, were you?,” Waymo’s lawyer, Charles Verhoeven, asked Friedberg Wednesday. “No,” Friedberg testified. “You made clear to Uber through its attorney that Stroz had way more work to do, right?” Verhoeven said. “Correct,” Friedberg said.
The buttoned-up New Yorker, former prosecutor and data-driven witness offers a stark contrast to Kalanick, who was on the stand for almost three hours on Tuesday and Wednesday. Without the corporate celebrity spectacle of Kalanick, his lawyers and handlers cleared from the courtroom, it was is if the court was getting back to business.
The Stroz report was done as “due diligence” for the Otto acquisition. Testimony has shown that Uber and Stroz engaged in a frenzied on-again, off-again examination of Levandowski before the deal was approved.
Friedberg said that his firm had reviewed less than 1 percent of the data it dug up on Levandowski eight days before Uber approved the Otto deal. It wasn’t until after April 11 that his firm performed a forensic analysis of Levandowski’s laptop and made other ‘substantial findings,’ he testified. Uber can be found liable for trade-secret theft not only if it knew of a theft, but also if it should have known, said Jim Pooley, a trade secrets expert who has followed the case.
“The employer can’t ‘turn a blind eye’ to what it probably assumes is happening,” Pooley said. “This is where the Stroz report becomes a problem, because it revealed to Uber, after the deal was signed but apparently before it was consummated, that Levandowski was not being straight.” On the other hand, if Uber convinces the jury that none of Waymo’s trade secrets ever made it to the ride-hailing company, even through Levandowski’s memory, then it may not matter how well-informed Uber was about him, Pooley said.
Melanie Maugeri, who handled Stroz Friedberg’s inspection of Levandowski’s electronic devices, testified Thursday that four devices were connected to Levandowski’s laptop and were erased between September 5, 2015 and February 16, 2016, weeks after he left Waymo. At least some of the devices weren’t examined because Levandowski didn’t turn them over, she said. She was asked by Waymo’s lawyer whether she could have learned that some files had been transferred if her firm had been given more time to complete its investigation. “We may have,” she said.