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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: 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]