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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: 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.