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posted by on Sunday April 16 2017, @12:01PM   Printer-friendly
from the guilty-as-sin dept.

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.)


Original Submission

Related Stories

Lyft and Waymo (Google) Team Up for Autonomous Cars 1 comment

Lyft and Waymo have signed a deal to bring autonomous cars into mainstream use:

As the race to bring self-driving vehicles to the public intensifies, two of Silicon Valley's most prominent players are teaming up. Waymo, the self-driving car unit that operates under Google's parent company, has signed a deal with the ride-hailing start-up Lyft, according to two people familiar with the agreement who spoke on the condition of anonymity because they were not authorized to speak publicly. The deal calls for the companies to work together to bring autonomous vehicle technology into the mainstream through pilot projects and product development efforts, these people said.

[...] The deal between Waymo and Lyft has competitive implications for Uber, the world's biggest ride-hailing company, which has recently had to confront a spate of workplace and legal problems. Lyft is a distant No. 2 to Uber among ride-hailing services in the United States, and the two companies are bitter rivals. Waymo is also competing fiercely with Uber in the creation of technology for autonomous cars and is embroiled in a lawsuit over what it says is Uber's use of stolen Waymo trade secrets to develop such technology.

Details about the deal between Waymo and Lyft were scant. The companies declined to comment on what types of products would be brought to market as a result of it or when the public might see the fruits of the collaboration.

Also at The Verge.

Previously: Uber and Lyft: Settlements, Racism, and Auto Partnerships
Google Waymo Vehicles to Hit the Road This Month
GM and Lyft to Test Thousands of Self-Driving Electric Cars in 2018
Google Spin-Off Waymo Accuses Uber of Stealing Self-Driving Tech
Lyft Pays $27M to Settle Driver Classification Suit
Uber Tracked Lyft Drivers
Uber Engineer Must Reveal Reason for Pleading the Fifth to Judge
Uber Could Face Injunction Stopping It From Testing Driverless Cars


Original Submission

The Fall of Uber CEO Travis Kalanick 23 comments

The Fall of Travis Kalanick Was a Lot Weirder and Darker Than You Thought

A year ago, before the investor lawsuits and the federal investigations, before the mass resignations, and before the connotation of the word "Uber" shifted from "world's most valuable startup" to "world's most dysfunctional," Uber's executives sat around a hotel conference room table in San Francisco, trying to convince their chief executive officer, Travis Kalanick, that the company had a major problem: him.

[...] [A] top executive excused herself to answer a phone call. A minute later, she reappeared and asked Kalanick to step into the hallway. Another executive joined them. They hunched over a laptop to watch a video that had just been posted online by Bloomberg News: grainy, black-and-white dashcam footage of Kalanick in the back seat of an UberBlack on Super Bowl weekend, heatedly arguing over fares with a driver named Fawzi Kamel. "Some people don't like to take responsibility for their own shit!" Kalanick can be heard yelling at Kamel. "They blame everything in their life on somebody else!"

As the clip ended, the three stood in stunned silence. Kalanick seemed to understand that his behavior required some form of contrition. According to a person who was there, he literally got down on his hands and knees and began squirming on the floor. "This is bad," he muttered. "I'm terrible." Then, contrition period over, he got up, called a board member, demanded a new PR strategy, and embarked on a yearlong starring role as the villain who gets his comeuppance in the most gripping startup drama since the dot-com bubble. It's a story that, until now, has never been fully told.

The article discusses a number of Uber and Kalanick scandals/events, including:

  • The #DeleteUber movement following Uber being accused of breaking up an airport taxi strike (which was in protest of President Trump's executive order restricting travel from Muslim countries), as well as Kalanick's decision to join President Trump's business advisory council (and later leave it).
  • Susan Fowler's blog post recounting sexual harassment at Uber, and the hiring of former U.S. attorney general Eric Holder to investigate the claims.
  • The revelation of Uber's Greyball system, which was used to avoid picking up law enforcement and taxi inspectors.
  • Uber's purchase of self-driving truck startup Otto, which eventually led key Uber investor Google (Waymo) to sue Uber, seeking billions in damages.
  • Kalanick's "inexplicable" support of Anthony Levandowski, who he called his "brother from another mother", even after Levandowski stopped defending Uber in the Waymo v. Uber case.
  • Kalanick's apology to the taxi driver Fawzi Kamel, which amounted to a $200,000 payoff.
  • A visit to a Seoul escort-karaoke bar that resulted in an HR complaint and a report in The Information.
  • Uber's president for Asia-Pacific Eric Alexander obtaining a confidential medical record of passenger who was raped by an Uber driver in Delhi, India. Alexander, Kalanick, and others discussed a theory that their Indian competitor Ola faked/orchestrated the rape.
  • Kalanick making his presence known during a "leave of absence" by trying to maintain control over the company and its board.
  • Arianna Huffington promoting her wellness company's products while acting as Kalanick's apparent proxy on the board.
  • The new CEO Dara Khosrowshahi's response to the city of London revoking Uber's operating license.

Original Submission

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  • (Score: 0) by Anonymous Coward on Sunday April 16 2017, @12:36PM (3 children)

    by Anonymous Coward on Sunday April 16 2017, @12:36PM (#494790)

    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

      by zocalo (302) on Sunday April 16 2017, @01:09PM (#494791)
      Not totally clear on this either, but my understanding is that the judge isn't asking Levandowski to incriminate himself, but rather to explain his rationale behind pleading the fifth. Quite how Levandowski is supposed to do that is going to depend on the circumstances, but it could well be that he fears the data he has been instructed to hand over includes information that would incriminate himself - e.g. logfiles showing his illegal access to servers. In that case his reply to the judge could be a rather generalise and non-specific "I believe the data requested might contain information that may incriminate me", rather than the more specific "Log file FOO contains details of my illegal access of servers on the date of..."
      --
      UNIX? They're not even circumcised! Savages!
    • (Score: 2) by tekk on Sunday April 16 2017, @01:29PM

      by tekk (5704) Subscriber Badge on Sunday April 16 2017, @01:29PM (#494794)
      My interpretation from the article is basically leaning on the wording of the amendment. The guy isn't allowed to self incriminate but the judge believes that the information is relevant to the case, so the guy has to talk ab it, but what he says can't be used against him? It could also be what the other guy said, where he doesn't need to talk about the self-incriminating evidence, but he has to explain why he believes the evidence to be self-incriminating. Then the judge can make a call about whether it falls under the 5th amendment or not.
    • (Score: 5, Informative) by AthanasiusKircher on Sunday April 16 2017, @05:22PM

      by AthanasiusKircher (5291) on Sunday April 16 2017, @05:22PM (#494868) Journal

      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)

    by fustakrakich (6150) on Sunday April 16 2017, @01:46PM (#494798) Journal

    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

      by Anonymous Coward on Sunday April 16 2017, @02:10PM (#494804)

      Ya this is weird...

    • (Score: 3, Interesting) by Anonymous Coward on Sunday April 16 2017, @02:37PM (2 children)

      by Anonymous Coward on Sunday April 16 2017, @02:37PM (#494813)

      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)

        by ThatIrritatingGuy (5857) on Sunday April 16 2017, @10:44PM (#494988)

        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

          by Anonymous Coward on Monday April 17 2017, @04:38PM (#495317)

          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)

      by tonyPick (1237) on Sunday April 16 2017, @02:37PM (#494814) Homepage Journal

      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:

      Waymo asked for an injunction that would stop Uber from using any of the intellectual property at question. That injunction could put a hold on Uber's self-driving car project.

      And Uber's response was to...

      explained that Uber wasn't in possession of all the documents mentioned in the Waymo complaint. That's when Alsup asked if Levandowski had the rest of the documents—a question Levandowski refused to answer.

      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...

      "If you think for a moment that I'm going to stay my hand because your guy is taking the Fifth Amendment and not issue a preliminary injunction to shut down that... you're wrong,"

      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.

      Uber's log—a list of which documents shouldn't be disclosed to Waymo as part of civil discovery—is hundreds of pages long, much of it e-mail from Uber's systems about the $680 million acquisition of Levandowski's startup, Otto. Levandowski is concerned about 42 documents that relate to a due diligence report about the Otto acquisition. His lawyers won't even say who the report's author is.
      ...
      Judge Alsup denied Levandowski’s lawyers’ attempt to halt Uber from giving up its privilege log.
      ...
      Levandowski’s lawyers immediately appealed Alsup’s April 10 ruling on Tuesday to the US Court of Appeals for the Federal Circuit...

      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)

        by Anonymous Coward on Sunday April 16 2017, @03:21PM (#494835)

        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: 1) by khallow on Sunday April 16 2017, @05:27PM (6 children)

    by khallow (3766) Subscriber Badge on Sunday April 16 2017, @05:27PM (#494870) Journal

    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)

      by tonyPick (1237) on Sunday April 16 2017, @05:52PM (#494878) Homepage Journal

      > 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)

      by Anonymous Coward on Sunday April 16 2017, @08:36PM (#494930)

      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

        by khallow (3766) Subscriber Badge on Sunday April 16 2017, @10:36PM (#494984) Journal

        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)

      by Anonymous Coward on Sunday April 16 2017, @09:21PM (#494951)

      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

        by khallow (3766) Subscriber Badge on Sunday April 16 2017, @10:31PM (#494981) Journal

        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)

    by jasassin (3566) <jasassin@gmail.com> on Sunday April 16 2017, @11:52PM (#495018) Homepage Journal

    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

      by Anonymous Coward on Monday April 17 2017, @07:45PM (#495447)

      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

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