This Case Is Waymo Uber Than Most Other Trade Secrets Cases

Even the smartest, most tech-savvy folks can get caught in trade-secret shenanigans.

Uber LogoSummary: This article discusses an ongoing case against Uber involving the alleged theft and use of confidential information and trade secrets by one of its employees who previously worked for its competitor, Waymo, a Google spin-off.

As an employment lawyer focusing mostly on restrictive covenant and trade secrets litigation these days, I feel like my fellow employment lawyers who deal more with harassment and discrimination claims get to talk about the headline-making cases. You know, the ones that get everyone talking. Recently, for example, the “I’ll do it live” guy and his bros over at Fox News provided some ready fodder.

But, every once in a while, a really interesting case involving trade secrets or restrictive covenants comes up, and I’m there to jump all over it. (It also gives me an opportunity to point to my own prior articles and say, “See, I told you so!”)

What’s got me excited today is a case pending in the Northern District of California (Case No. 3:17-cv-00939) filed back in February of this year. Our friends over at Uber (and two of their friends, Ottomotto and Otto Trucking) were sued by Waymo, which is an autonomous-vehicle development company that was spun off from Google’s parent company.

The case centers around Waymo’s former golden boy engineer, a guy named Anthony Levandowski (who’s apparently kind of smart). He decided to call it quits with Waymo in early 2016 and start his own company focused on self-driving big rigs. In mid-2016, however, Levandowski’s company was acquired by Uber, and Levandowski took over Uber’s driverless vehicle project.

Okay, so Waymo lost a star employee to a competitor. It happens. So what’s got Waymo so hot and bothered?

Well, to quote an order issued yesterday by Judge William Alsup, Waymo presented “compelling evidence” that Levandowski “downloaded over 14,000 confidential files from Waymo immediately before leaving his employment there,” and that he left his employment “under highly suspicious circumstances.” Levandowski allegedly spent eight hours downloading 9.7 gigs of data from his work laptop onto a personal data storage device, and then reformatted his work laptop with a new operating system, wiping it clean. Yikes! That’s not a good look.

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But that’s not all.

The order goes on to say that the evidence presented so far indicates that “Uber likely knew or at least should have known that Levandowski had taken and retained possession of Waymo’s confidential files.” More specifically, the order recounts that Uber engaged a digital forensics and litigation support firm to perform “due diligence” on the data provided by Levandowski, and took certain steps to prepare for anticipated litigation against Waymo very early on.

Although the order notes that not all of the files constituted trade secrets, there were enough trade secrets in the thousands of files to warrant some injunctive relief at this early stage of the case while the lawsuit unfolds. Judge Alsup ordered the defendants to, among other things, turn the misappropriated data back over to Waymo and provide detailed accountings of every conversation, meeting, text message, email, etc. in which the misappropriated data was discussed. Good times!

So kids, what lesson have we learned today? (Here’s the part where I get to say, “See, I told you so!”)

Like I’ve discussed before, when employees leave their jobs, it’s a bad idea to take data, documents, or other materials from former employers before (or after) leaving. If the information isn’t something that can be easily found through an Internet search, it’s most likely a bad idea to take it. (Even then it’s probably still not a good idea to take the information.) Taking or using confidential information could constitute trade secret misappropriation under the Defend Trade Secrets Act and other federal and state-specific laws.

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And, as this case shows us, even the smartest, most tech-savvy folks get caught in these kinds of shenanigans. Consider this: Levandowski has his bachelor’s and master’s degrees in engineering from Berkeley, and he built an autonomous motorcycle with his friends in his mid-twenties that’s now on display in the Smithsonian National Museum of American History.

If this guy couldn’t pull off taking some data from a former employer without giving rise to allegations of theft, do you really think most anyone else has a chance? Probably not.


evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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