US District Judge William Alsup, who is presiding over Waymo’s trade secret theft lawsuit against Uber, announced today that the trial, which was set to begin next week, will be delayed as the court tries to determine whether Uber withheld crucial evidence.
Waymo, the self-driving car company spun out of Google’s moonshot unit, has accused Uber of recruiting its former employees and stealing its trade secrets in order to advance its development of autonomous vehicles. Anthony Levandowski, an engineer who left Waymo to spearhead Uber’s self-driving car unit, allegedly stole thousands of confidential documents on his way out the door, but Uber has maintained that those documents never reached its corporate servers.
That claim is now undermined in an explosive letter written by attorneys for Richard Jacobs, a former member of Uber’s global intelligence team. The letter—which was obtained by the US Attorneys Office during a criminal investigation separate from Waymo’s lawsuit—says that Uber’s Marketplace Analytics team worked on secret servers and devices that couldn’t be traced to Uber in order to dig up information, private code, and trade secrets from competitors. If the letter is accurate, it suggests that Uber set up secret servers to hold stolen data, circumventing the discovery process.
Jacobs testified today in civil court that the Marketplace Analytics team scoured competitors’ GitHub accounts to find private code but balked at the letter’s suggestion that the team stole trade secrets, particularly from Waymo. He said he spent only 20 minutes reviewing the letter before his attorneys sent it, and that it may contain inaccuracies.
“None of the testimony today changes the merits of the case. Jacobs himself said on the stand today that he was not aware of any Waymo trade secrets being stolen,” an Uber spokesperson said.
However, Jacobs did say that Uber acquired private code from an overseas competitor, and that Uber tried to identify employees at competitive companies who might leak to them. “I suppose because of my personal ethics, it felt overly aggressive and invasive,” Jacobs said of Uber’s practices.
Jacobs resigned from Uber earlier this year, and the company reached a $4.5 million settlement with him. Part of that money is a consulting fee to reimburse Jacobs for assisting with an internal investigation into the Marketplace Analytics team, he explained.
The Marketplace Analytics team was instructed to use encrypted, ephemeral communication on devices that couldn’t be attributed to the company, Jacobs said, in order to “make sure we didn’t create a paper trail that would come back to haunt the company in any potential criminal or civil litigation.” Jacobs said he received instructions on secure communication from Craig Clark, who was recently dismissed from Uber for his role in covering up a data breach. Hackers stole the personal information of 57 million Uber users in October 2016, and Uber paid the hackers $100,000 to keep the theft secret.
Jacobs explained that Uber employees used the encrypted, ephemeral messaging app Wickr in order to hide their conversations. He claimed that Ed Russo, another member of Uber’s security team, traveled to Pittsburgh to train employees working on self-driving cars to use ephemeral messaging. In later testimony, Russo denied this and said the purpose of his trips to Pittsburgh was to vet the overall security posture of the autonomous vehicle program.
Judge Alsup instructed Uber to create a list of all its employees who had downloaded Wickr on a personal or work device since December 2015.
Waymo has asked the court for additional depositions with Uber’s former CEO Travis Kalanick and Uber’s lawyers to investigate the details contained in the Jacobs letter.
“The only possible conclusion is that Uber intentionally withheld the Jacobs Letter and related materials to prevent Waymo from discovering material evidence in this case,” Waymo’s attorneys wrote in a filing.
Updated at 4:00 p.m. with additional details about the hearing.