Waymo vs. Uber: unsealed court documents reveal damning evidence
The due diligence report that Uber fought so hard to keep from being used in its legal battle with Waymo and Alphabet was made public on Monday — and it’s easy to see why Uber resisted as hard as it did. The document, prepared by cybersecurity firm Stroz Friedberg as part of Uber’s acquisition of self-driving trucking startup Otto, describes a thorough forensic review of personal devices belonging to five people at Otto, including the much-embattled Anthony Levandowski, who earlier this year attempted to invoke the Fifth Amendment to avoid turning over documents in the case.
The report paints a picture of executives and lawyers trying to rein in improbably risky behavior at Uber and Otto, two wildly undisciplined companies, even as other top executives egged it on. At this point it’s not terribly surprising that the summary report of the investigation — apparently codenamed “Project Unicorn” by Stroz Friedberg — casts Levandowski and Uber’s then-CEO Travis Kalanick in a particularly bad light. But the report also has damning things to say about Levandowski’s cofounders, Lior Ron and Don Burnette, as well as other employees at Otto, including, of all people, the head of Human Resources.
The report describes, for instance, employees caught in lies in their interviews with Stroz investigators; an elaborate saga around the surreptitious destruction of five disks of confidential information belonging to Google; furtive text messages advising each other to delete message logs; and search engine queries regarding “how to secretly delete files mac” or “can a MacBook be recovered after formatting the OS.”
The report does say that Stroz Friedberg “discovered no evidence” that Google confidential information retained by or accessed by Levandowski was transferred to Ottomotto (the full name of self-driving truck startup Otto) or anyone else. Based on the report, at least, it’s clear that Levandowski and others retained or accessed Google information when they shouldn’t have, but it’s not at all clear whether they actually used any of it. That could prove devastating to Alphabet’s case against Uber. The judge himself told lawyers in July, “If you can’t prove that Uber got these trade secrets, then maybe you’re in a world of trouble.”
The Stroz report does describe a fair amount of suspicious, cagey behavior on the part of the employees they were tasked with investigating. The firm flagged several contradictions between the interviews and the results of their forensic analyses, even throwing shade at Levandowski’s narration of events. “It is difficult to believe that Levandowski was not, prior to his interview, fully aware of the extent of the data that he had retained,” the report remarks.
Stroz Friedberg describes Levandowski’s discovery of five Drobo disks (a type of networked storage) of Google proprietary information in his closet, a few weeks after leaving Google. The disks included “source code, design files, laser files, engineering documents, and software related to Google self-driving cars.” Levandowski told investigators that he had created the disks in the ordinary course of business while at Google, and that as soon as he realized he had the disks, he informed his attorney and then informed Uber at a meeting on March 11th, 2016. Cameron Poetzscher, head of corporate development at Uber, told Levandowski to preserve the disks, but Travis Kalanick “wanted nothing to do with the disks” and told him to “do what he needed to do.” On the same day, Levandowski wrote in a deleted iMessage to an unknown recipient: “I’ll clean that shit out.”
Levandowski told investigators that he took the disks to a shredding facility in Oakland right after the meeting with Uber.
Here, the story takes a bizarre twist. The investigators visited the shredding facility twice in an effort to confirm Levandowski’s story, but when they showed Levandowski’s picture to employees, no one recognized him.
Levandowski also claimed that he had paid in cash and had not received a receipt. But the shredding facility told investigators that “all destructions are recorded on a triplicate, carbon-copy receipt” with details about date, time, service and payment. Although investigators did find a record of five disks being destroyed and paid for in cash, the shredding happened on an entirely different day in March, and the signature was “illegible.”
The investigators could not come to any conclusion as to whether the disks were actually destroyed, whether Levandowski had lied, or why he would have even lied in the first place.
Forensics uncovered several deleted messages regarding deletion or destruction of information. Rhian Morgan, the head of human resources at Otto, texted Levandowski at least three times about shredding or destroying records, including one text that read:
i’ve been paying for shredding on my card since it’s not technically a business expense for OM. LMK if I should expense it or send you a bill instead 😉
The report implies a few times that their subjects purposefully obstructed their investigation. It notes that they could not examine Colin Sebern’s — the chief operating engineer — iPhone, because it was encrypted. “During his interview, Sebern provided Stroz Friedberg with a list of possible passwords, but none of them worked.” They did examine Sebern’s MacBook Pro, and found that “interestingly, 57 gigabytes of additional free space” became available right before his interview with Stroz Friedberg.
Sebern was hardly the only one who seemed to have panicked right before the interview. The investigation also found that Lior Ron had deleted a file labeled “Chauffer win plan.docx” from his computer shortly before his interview, a move that Stroz drily described as “poor judgment given the protocol in place.” (Chauffeur was the name of Google X’s self-driving car project, a team that Ron, Levandowski, and many others at Otto came from.)
Lawyers for Alphabet are seeking to push back the trial date and extend discovery based on the new revelations in the Stroz report. But while the report has plenty to say about Otto employees soliciting and recruiting Googlers when they shouldn’t have, it doesn’t have much insight into whether any Google confidential information ended up in Otto’s or Uber’s possession. Ironically, it’s the stonewalling and other evasive behavior by Levandowski and others — and apparently egged on by Travis Kalanick — that now gives Alphabet a decent excuse to draw out the legal battle. Whatever Stroz Friedberg couldn’t find out, Alphabet’s legal team is certain to pursue.