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An Uber engineer accused of data theft against Google must privately explain the circumstances behind invoking his Fifth Amendment right to the judge in the case:
During a Wednesday court hearing, a federal judge said that if an Uber engineer accused of a massive data theft from his former employer is going to invoke his Fifth Amendment right to protect against self-incrimination and not hand over materials demanded as part of a recent subpoena and upcoming deposition, then he must at least explain himself privately to the judge.
"What I've told you is that you can submit the privilege log to me, in camera, without giving it to anyone else and I can evaluate it, which aspects, if any would be incriminating," US District Judge William Alsup said, addressing a lawyer representing the engineer, Anthony Levandowski, during the hearing. "I'm not ruling against the ultimate assertion of the privilege, but you've got to do more than just say in court, Fifth Amendment—you have to do a privilege log and go through the process."
The case pits Waymo against Uber, which in turn is in a tense situation with one of its own employees, Levandowski, the head of its self-driving division. Levandowski is now set to be deposed by Waymo lawyers this Friday at their San Francisco offices. He must also respond to a subpoena by handing over materials that he is accused of stealing— thousands of secret documents from his time with Waymo parent company, Google. On Wednesday, Judge Alsup quashed four of the six distinct items requested in the subpoena, but allowed first the most substantive, the allegedly "misappropriated materials," to stand. (The third item, "All communications between You and Uber between January 2015 and August 2016," will also remain.)
(Score: 0) by Anonymous Coward on Sunday April 16 2017, @12:36PM (3 children)
You can remain silent as long as you tell me everything. What? Either I'm reading this wrong or...
(Score: 4, Informative) by zocalo on Sunday April 16 2017, @01:09PM
UNIX? They're not even circumcised! Savages!
(Score: 2) by tekk on Sunday April 16 2017, @01:29PM
(Score: 5, Informative) by AthanasiusKircher on Sunday April 16 2017, @05:22PM
You can remain silent as long as you tell me everything. What? Either I'm reading this wrong or...
The case is complicated. First off, it should be mentioned that judges do frequently have to examine things like documents privately to determine whether they are admissible in court or (if excluded) that they actually fit the reason for exclusion that a lawyer is claiming. Also, the 5th amendment is really a protection against criminal prosecution (though it can be invoked in a civil case). Keep in mind that this is a judge in a CIVIL suit whose private meetings about privileged information would have no bearing on potential future criminal charges in a different case.
As I understand it (and I really don't care enough to read more about this mess):
-- Google/AlphabetWaymo is suing Uber. Levandowski is an employee of Uber who isn't a direct party to the lawsuit.
-- Levandowski possibly stole 14,000 documents. He's claiming that he can't hand these over (even if he has them) because it would incriminate him.
-- Levandowski's company was subsequently bought by Uber.
-- One issue there is whether these 14,000 documents are Levandowski's "personal property" (as he is claiming), or if they -- or some part of them, or some information from them -- became part of Uber during the acquisition. Uber seems to claim that he should cooperate with the subpoena, but also claims it cannot compel an employee to produce personal property.
So, the question is really a bit like investigators showing up at a company with a subpoena for documents, and the file clerks and secretaries standing there and saying, "FIFTH AMENDMENT! You can't have any documents!" by claiming they are personal property. In that case it would be obviously absurd, but the scope of the documents in this case and whether they could feasibly considered "personal property" is the question.
So part of the case is the judge saying, "You need to file a standard list of privileged documents" as is required in any case where privilege is asserted to avoid subpoena. The judge is offering to look over this list privately to avoid any possibility of public recrimination. Keep in mind again that this is a CIVIL case. If people could just say invoke the privilege in all cases without divulging any information about what they are hiding, subpoena power in civil cases would basically have no power, as everyone could just yell "FIFTH AMENDMENT!" whenever anyone showed up and requested documents.
The judge is likely also a bit frustrated over the other shenanigans here, in particular:
-- When Levandowski's company was bought, a 3rd party did a due diligence report as part of the acquisition.
-- Google claims this due diligence report may have information that proves the theft and/or proves Levandowski made use of Google's proprietary information.
-- Again, a list of all documents which are not produced under a claim of "privilege" (e.g., 5th Amendment) must generally be submitted to the court for review.
-- Levandowski's lawyers are claiming that essential information about this due diligence report, including the name of the author of the report must be redacted from the PRIVILEGE log (which merely lists the documents claimed under privilege, not the contents).
Basically, as I understand it, what's going on here is that Levandowski is trying to avoid revealing the name of an author of a report who could be subpoenaed about its contents. But what I don't understand is how the report is somehow private property of Levandowski -- if it was done as part of a merger/acquisition, surely it also belongs to Uber (and thus should be eligible for subpoena).
Anyhow, Levandowski is basically jumping into a case that he's not a party in and claiming that the 3rd-party author of a document can't be revealed in a privilege log. Basically, he doesn't want Google finding out the name of the author so the author can be subpoenaed. So the judge is saying -- "You need to still submit the unredacted list of documents to me, and I'll examine it privately to determine whether your privilege assertion has any merit." The judge, as I understand it, is NOT forcing the report to be revealed (yet): just saying it needs to actually be listed normally on the list of privileged documents.
In sum, Levandowski's lawyers are (1) trying to maintain a distinction of company vs. personal property that may not make any sense here, and (2) attempting to hide names of 3rd parties in basic lists of court documents (in a suit they aren't even a party to). The judge is -- I think very reasonably -- asking for a private explanation of what the heck is going on here and whether these attempts at "privilege" have legal merit or are a smokescreen of some sort.
(Score: 2, Insightful) by fustakrakich on Sunday April 16 2017, @01:46PM (7 children)
I had no idea the right against self incrimination is a privilege. But I guess when savages rule with their weapons of mass destruction this could be the case.
La politica e i criminali sono la stessa cosa..
(Score: 0) by Anonymous Coward on Sunday April 16 2017, @02:10PM
Ya this is weird...
(Score: 3, Interesting) by Anonymous Coward on Sunday April 16 2017, @02:37PM (2 children)
So long as he is not going to be held accountable for what he says to the judge, than he has not incriminated himself in court.
IE- He was told 'steal everything from google' and he did. If he said 'my boss said steal everything from google and I did' that would under normal circumstance then make him liable for theft- it would ALSO make his boss part of that theft.
He pleads the 5'th, gets into the judges chambers, says 'my boss said steal everything from google, and I did'. The judge says 'thank you' and goes back to the courtroom.
At the end of the trial he says 'judgement for google, it is my finding that Uber willingly engaged in corporate espionage and theft up to the highest levels.'
No one ever knows what the engineer said, or how it affected the trial except the judge. The judge is not going to press charges, would not testify in court against the individual, and would recuse himself from any further legal matters taken against the engineer (or might insist that he BE the judge, in order to assure that the engineers presumed statement in his chambers is not held against him).
(Score: 2, Touché) by ThatIrritatingGuy on Sunday April 16 2017, @10:44PM (1 child)
The judge is not going to press charges, would not testify in court against the individual, and would recuse himself from any further legal matters taken against the engineer (or might insist that he BE the judge, in order to assure that the engineers presumed statement in his chambers is not held against him).
Can you back this up with regulations or is it a trust thing between the engineer and the judge? If the latter, then I'm not sure I would trust the judge enough to go for it.
(Score: 0) by Anonymous Coward on Monday April 17 2017, @04:38PM
The decision to press criminal charges is a function of the executive branch (hence why clemency works at all), FRE 605 prevents the judge from testifying himself at the current trial, and the Code of Conduct Canon 2 prevents him from doing so in the future and Canon 3 prevents a different judge from allowing it in the future.
(Score: 4, Informative) by tonyPick on Sunday April 16 2017, @02:37PM (2 children)
Oh, he's got the right against self incrimination, but the fallout from that is that it makes it more likely that Waymo will get the injunction they're after, and that will be very very bad for Uber... And he also appears to be claiming that his invocation of the 5th should prevent Uber from handing documents they have over to Waymo as well, which is... interesting.
(Insert usual IANAL disclaimer - obviously, so corrections on this are welcome)
There's an earlier Ars Technica article [arstechnica.com] giving a bit more context to the specific circumstances of the 5th plea:
And Uber's response was to...
So Google/Waymo have presented evidence that Levandowski took the documents [arstechnica.com], that Uber's car development program is based around them, and they want an injunction to stop Uber from doing anything else with the information in question, which could effectively kill Uber's self driving car development dead.
AIUI Right now Uber is drawing a distinction between what they have and can produce, and what Levandowski (who is still working as the head of Uber's self-driving car project) may (or may not) have, and are using that distinction as grounds as to why they have not produced documents during discovery - and, to quote Alsup...
There's also, specifically, the question of the "due dilligence" report - Uber has this, and Google says it may prove that Uber knew about the stolen files, but Levandowski seems to be arguing that his invocation of the 5th covers *that* document as well, and is trying to use that claim to stop Uber from producing it.
A more coherent summary here [recode.net]. At this point my head hurts trying to figure this stuff out though, so if anyone has a clearer view of this I'd welcome it...
(Score: 1, Informative) by Anonymous Coward on Sunday April 16 2017, @03:21PM (1 child)
That was a good summary.
Alphabet spun off Waymo to make driverless car technology.
Developing cheap Lidar and the recognition s/w behind it was a key part of that technology.
Mr. Levandowski worked for Waymo and supposedly took 14,000 files when he left.
He then started another driverless company Otto and also consulted for Uber.
Uber decided to buy Otto and did a due diligence study of the risks.
Uber then bought Otto and Mr. Levandowski became the head of Uber dirverless development.
Alphabet sued saying that Uber was using Alphabet's technology that Mr. Levandowski took. (see 14,000 files)
Mr. Levandowski and Uber entered into a joint defense agreement.
Mr. Levandowski took the 5th on producing the 14,000 files.
Uber says they do not have to produce the due diligence study because it's covered by the combination the pleading the 5th and the joint defense agreement.
Judge is skeptical. He tells Mr. Levandowski to tell him privately what he took the 5th about.
I can't see how Mr. Levandowski taking the 5th should affect the requirement of Uber to produce a document they had before the joint defense agreement.
In other words, the company Uber doesn't have the right to take the 5th and a joint defense agreement should not magically give that right to them.
Additionally, the judge has no right to ask Mr. Levandowski to talk about stuff he took the 5th on. (See pesky Constitution.)
So Uber, not Mr. Levandowski, should produce the full study.
So, if the study says Uber knew what they were getting into with Mr. Levandowski, should Alphabet now own Uber?
If so, should it be an asset or liability on their balance sheet?
Get you popcorn it looks like a good episode.
(Score: 3, Insightful) by tonyPick on Sunday April 16 2017, @03:50PM
Actually I don't believe that Uber and Levandowski are running a joint defence agreement, at least not officially - He appears to have his own attorney, and him pleading the 5th isn't necessarily that good for Uber depending on how the injunction pans out.
Also a further complication is that this is a civil case, not a criminal one, and the rules are slightly different there; the US constitution mentions Criminal Cases specifically in the context, and even though the absolute right to refusing to testify carries over to civil cases the Judge can look into why the plea is made and assess the grounds the defendant is providing for making it - however that's a can of worms involving State vs Federal law amongst other things. And we're talking about a preliminary injunction, not even the full trial, which might complicate things even further.
A few URL's for the curious/insomniac crowd
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/28/what-happens-if-you-take-the-fifth-in-a-civil-case/ [washingtonpost.com]
https://judgebonniesudderth.wordpress.com/2011/09/26/use-of-the-fifth-amendment-privilege-in-a-civil-case/ [wordpress.com]
https://apps.americanbar.org/buslaw/blt/blt00may-shield.html [americanbar.org]
(Score: 1) by khallow on Sunday April 16 2017, @05:27PM (6 children)
So far, the engineer has refused to hand over any documents or data related to the lawsuit.
That doesn't sound like activity that the US Fifth Amendment would apply to. And Uber seems unable to acquire those documents either? Right. Anyway, here's the actual amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Even if the documents and such are incriminating, I don't see that the Fifth Amendment applies here in the way that most posters think. These documents aren't testimony and hence, the person in question is not a witness against themselves. OTOH, the subpoena currently may be forcing the person to do something illegal due to their contract with Uber (in which case the court has ways to get around that without much work). That is a different Fifth Amendment issue.
(Score: 2) by tonyPick on Sunday April 16 2017, @05:52PM (1 child)
> These documents aren't testimony and hence, the person in question is not a witness against themselves.
No, but the admission that he has these documents, knows where they are, or acknowledging he's in a position to hand them over could be counted as testimony for this purpose...
(Score: 2) by NotSanguine on Sunday April 16 2017, @11:12PM
No, but the admission that he has these documents, knows where they are, or acknowledging he's in a position to hand them over could be counted as testimony for this purpose...
IANAL, but IIUC, a subpoena, like a search warrant, assuming such subpoenas aren't quashed or covered under a protective order [lawgives.com] have the force of the courts behind them.
One may not be forced to testify against oneself, however (as has been seen innumberable times) a subpoena (again, unless quashed or otherwise rescinded) or a search warrant are not optional things.
That's where privilege logs come in. Even though a person or entity is responsive to a subpoena, there are certain items (e.g., privileged communications, attorney work product, etc.) which can be excluded from the discovery process. In order to do so, a "privilege log" is created and is routinely reviewed by the bench to determine the validity of the privilege claims.
As such, Tony [theguardian.com] must still turn over documents considered responsive to the the subpoena.
How that relates to a claim that there is potential for "self-incrimination" is unclear (to me, at least). If I didn't despise popcorn, I'd be making lots, then sitting back to enjoy the show. So I'll just sit back instead.
No, no, you're not thinking; you're just being logical. --Niels Bohr
(Score: 0) by Anonymous Coward on Sunday April 16 2017, @08:36PM (1 child)
I don't see that the Fifth Amendment applies here in the way that most posters think. These documents aren't testimony and hence, the person in question is not a witness against themselves.
Well thank goodness! But the obvious rebuttal is, "khallow, legal genius!"
(Score: 1) by khallow on Sunday April 16 2017, @10:36PM
Well thank goodness! But the obvious rebuttal is, "khallow, legal genius!"
I've noticed that so many of the people who complain about my argument style have the stupidest ways of doing so and never have a concrete concern. Why shouldn't I continue to ignore you? Is there some reason you keep posting?
(Score: 0) by Anonymous Coward on Sunday April 16 2017, @09:21PM (1 child)
Cool, new strategy.
State files a civil proceeding and compels the suspect to tell what he did.
Then they use this as evidence in the criminal case.
It doesn't make sense for the 5th to not apply in a civil case unless compelling in civil comes with criminal immunity.
(Score: 1) by khallow on Sunday April 16 2017, @10:31PM
and compels the suspect to tell what he did
Why do you think that had anything to do with what I wrote? Merely providing evidence is not compelling testimony.
(Score: 2) by jasassin on Sunday April 16 2017, @11:52PM (1 child)
If he says no, can he be held in contempt of court? It's the 5th... Man this a buncha fuckin bullshit!
jasassin@gmail.com GPG Key ID: 0xE6462C68A9A3DB5A
(Score: 0) by Anonymous Coward on Monday April 17 2017, @07:45PM
Not at all. the 5th protects ONLY YOU from CRIMINAL prosecution BY THE GOVERNMENT. It's like how the 1st Amendment only protects speech from government hands, it doesn't restrict businesses from censoring you. You can't just claim the 5th for non-relevant stuff. What's going on here is that the judge will privately listen to the testimony, and decide if the witness is justified. If he's pleading the 5th to avoid incriminating Uber, or anybody else, then it's not valid, and he can be compelled - under threat of contempt - to testify. The judge is SUPPOSED to be a totally neutral party, so it should be safe, but we've seen the idiocy of the politicization of the judicial branch with the morons who keep voting for biased judges thinking it won't come back to bite them, so YMMV.
This really isn't a big deal, and it would really be nice for more judges to do this, rather than just listen to scumbag executives claiming the 5th for hundreds of questions. Or just lying, f there isn't hard evidence already present. : ) Of course, this guy isn't a CEO, so the Executive Privilege* doesn't apply. : |
*: Golden Rule