
Uber’s Anthony Levandowski Invokes Fifth Amendment Rights in Waymo Suit - dshore
https://www.nytimes.com/2017/03/30/technology/uber-waymo-levandowski.html?_r=0
======
bradleyjg
Note that while a negative inference may not be drawn from the invocation of
one's fifth amendment rights in a criminal case, in a civil case a negative
inference can be drawn.

[http://www.litigationandtrial.com/2013/04/articles/attorney/...](http://www.litigationandtrial.com/2013/04/articles/attorney/pleading-
the-fifth-adverse-inferences/)

~~~
joshuahaglund
seems that depends on the state [https://www.washingtonpost.com/news/volokh-
conspiracy/wp/201...](https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2015/08/30/what-happens-if-you-take-the-fifth-in-a-civil-case-
an-important-california-law-correction/?tid=a_inl&utm_term=.ae1862b2dca9)

~~~
bradleyjg
According to that link federal courts defer to state law rules on the issue
for causes of action that sound in state law but not for those that are
grounded in federal law. Google's complaint
([https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k...](https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k/view))
has two CA claims and four federal ones. The main trade secret claims are one
of each.

Again, according to that link, if evidence is relevant to both federal and
state claims, the federal rule controls. So in this case I expect the federal
negative inference rule to prevail.

------
apsec112
For reference, here's a handy flowchart on Fifth Amendment law by lawyer
Nathan Burney:
[http://lawcomic.net/guide/?p=2897](http://lawcomic.net/guide/?p=2897)

~~~
elastic_church
so long... thats not handy at all, on the go at least

but I wish that lawyers could produce these flow charts when they say "it
depends"

~~~
srtjstjsj
That's the gag (as you can see in the punchline at the bottom): the specifics
of the law is absurd and deeply hostile to the intent of the Constitution.

~~~
tyre
> the specifics of the law is absurd and deeply hostile to the intent of the
> Constitution.

All of these scenarios exist because courts have interpreted the constitution.
I'm not sure SCOTUS is "deeply hostile to the intent of the Constitution."

Yes, it's complicated, but that is because real life is complicated.

Tangentially, this is why something like Ethereum or other "Smart Contracts"
are so hard and why lawyers exist. The real world gets complicated quickly.

~~~
int_19h
> I'm not sure SCOTUS is "deeply hostile to the intent of the Constitution."

Wickard v. Filburn was a mockery of the intent of the Constitution in all but
name. And it's not the only case like that.

The problem with SCOTUS is that it can really do whatever the hell it wants.
It's <em>supposed</em> to do the right thing, but because it is the final
arbiter, they get to decide what the right thing is. Sometimes they do it in
ways that are wrong in any other meaningful sense.

~~~
avar
They're not the final arbiter, if the SCOTUS does something wrong the
constitution can be amended to clarify or change the intent of the law. Then
the SCOTUS will be beholden to that constitutional amendment.

That there isn't political will to routinely do this in response to bad SCOTUS
rulings is not an inherent problem with the system itself.

~~~
int_19h
The barrier to amend the constitution is so high, that it's virtually
insurmountable in a highly partisan environment, if the ruling is itself
partisan.

------
minimaxir
One of the authors of this piece posted an amusing court transcript on
Twitter:
[https://twitter.com/mikeisaac/status/847568150916878336](https://twitter.com/mikeisaac/status/847568150916878336)

~~~
ladybro
Mike's twitter feed is literally the best I've come across on the platform. A
delightful combination of tech news, snark, and existential angst.

~~~
icpmacdo
I am very tired of snark being a virtue of tech journalists although I
somewhat agree and think Mike is worth following

~~~
cwilson
Snark is not a virtue limited to tech journalists. My significant other is a
journalist (outside of tech), so we have lots of journalist friends. They are
hands down the snarkiest people I know.

It kind of comes with the territory.

~~~
hueving
It comes with thinking a superficial understanding of lots of things makes you
qualified to to belittle others "less enlightened".

~~~
evgen
Sounds like you just described every HN comment ever: 'Oh, you understand red-
black trees and just scanned two Wikipedia articles? Let me hear more about
your theories on political economy and your pronouncements on environmental
policy regarding the Amazon...'

------
Animats
This is going to get complicated, and probably nasty. The interests of Uber
and Levandowski no longer align. That's not unusual, although it usually comes
up more in criminal cases.

Amusingly, Google's employment contract, which specifies binding arbitration
for employee-employer disputes, may have backfired on Google. Google did take
Levandowski to arbitration. But Google can't bind Uber via their employee
arbitration contract. So now Google is suing Uber, and Uber and Levandowski
are arguing that Google can't sue because it insisted on arbitration in the
employment contract.

~~~
zeven7
> Google did take Levandowski to arbitration.

What happened in arbitration?

~~~
Animats
Apparently nobody is saying. Arbitration is confidential.

------
Steeeve
Anthony Levandowski isn't just a schlub caught up in a big lawsuit. He's the
guy who's self-funded startup got bought for $680M. He's facing a lawsuit from
Google.

Did anyone have any sort of impression that he was going to cooperate out of
the gate? There's a better chance that he drops his pants and asks for a
spanking.

Yes, the 5th Ammendment can be used as negative inference in a civil suit.
Whatever. This isn't testimony. This is discovery. It's years before this gets
in front of a jury and it won't matter one iota when all is said and done.

This is a marathon of a fight. Levandowski just signaled that he's not an
idiot.

~~~
puranjay
The 'Google employee' headlines gave a lot of people the wrong impression -
that he was just some random Googler caught up in a big mess between two tech
behemoths.

------
DannyBee
The number of armchair lawyers here who believe that they understand the fifth
amendment is impressive.

You can hold the fifth amendment against people in civil trials in federal
court. See, e.g., 425 US 308, 318 "Our conclusion is consistent with the
prevailing rule that the Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to
probative evidence offered against them: "

There is a well-established test for when negative inferences may be drawn.

Note also that federal courts can force the witness to take the stand and
invoke the privilege in front of a civil jury.

Even further, federal courts may allow an adverse inference against a company
from an employee’s or former employee’s invocation of the Fifth Amendment.

Most courts follow LiButti v. United States on this matter.

------
doubleshadow
> In the transcript of a private hearing before Judge William Alsup in United
> States District Court in San Francisco, Mr. Levandowski’s lawyers said he
> was invoking his Fifth Amendment right to avoid incrimination in turning
> over documents relevant to the case. Uber’s lawyers said they have made
> clear to Mr. Levandowski that he needs to release any documents relevant to
> the case as part of discovery.

Does Levandowski also have his own lawyers? Says here that his lawyers said he
was invoking his 5th amendment, while Uber lawyers said he needs to turn over
all documents

~~~
MichaelGG
A guy with a high net worth, that may have taken secrets from Google then sold
them to Uber? It'd be very surprising if he didn't have his own legal team.

One would imagine part of Uber's tactic would have been to make sure that they
got representations on paper that everything was safe, that no secrets were
being passed. If I was buying contraband, I'd want to make sure the invoices I
officially paid for looked legit...

~~~
M_Grey
Of course every action you take to hide your tracks potentially leaves
detectable tracks of their own. At some point you trade the ability to claim a
lack of premeditation if you've clearly and extensively premeditated.

~~~
deong
True in the abstract, but I suspect that it's fairly easy for Uber to argue
that there was an honest intent behind all but the most idiotic of paperwork
they might have signed.

"We were buying a technology company. Of course we did our due diligence to
make sure that we were protected in the unlikely event that the company was
not what we were led to believe."

------
inlined
Since I'm not a lawyer, does anyone have any reference to the 5th amendment
ever being (successfully) used to avoid discovery? I thought that only applied
to testimony.

~~~
tgjsrkghruksd
It's often argued that disclosure of the knowledge of the existence and
location of the subject of a discovery demand is itself testimonial.
Sometimes, a court will partly agree and require accommodations to discovery,
such as production through the deponent's attorney and precluding any
disclosure of where the item or information came from.

Perhaps a more likely outcome is sanctions, such as an adverse inference,
costs, or even a directed verdict.

------
PhantomGremlin
Nobody yet has mentioned the big picture. To me the big queston is: _How the
fuck do Levandowski and Kalanick still have jobs at Uber?_

If I were on the Uber Board of Directors, I would be pushing for armed
security to escort those two clowns out the door. Immediately. As in today.
And I'd give them a cardboard box with all their personal shit in it for them
to carry out with them.

At what point in time does a company Director become complicit in theft of IP?
What did the Uber board know, and when did they know it?

I predict that, any day now, there will be mass scurrying of rats abandoning a
sinking ship.

All IMO of course. As they say on the TV show Cops (more or less): _all
suspects are innocent until proven guilty in a court of law._

~~~
eddieplan9
You need to read up on Levandowski a little bit. To quote a Bloomberg article:

> “Whatever Google may say about him stealing lidar trade secrets, he was the
> lidar team at Google,” says someone who worked at the company’s driverless
> car program. “This is like the Swiss patent office suing Einstein for
> inventing the theory of relativity while he worked there.”

> Google’s self-driving car project began the following year with ... hardware
> supplied by Anthony’s Robots. Like 510 Systems, Anthony’s Robots was
> operated as an independent company. The arrangement—whereby Levandowski was
> at once a founding member of the Google self-driving car team and a vendor
> who was also selling technology to other companies—was well-known to Google
> executives, though it was never publicly disclosed. “Anthony is a rogue
> force of nature,” says a former Google self-driving car executive. “Each
> phase of his Google career he had a separate company doing exactly the same
> work.” According to two former Google employees, founders Page and Sergey
> Brin tolerated Levandowski’s freelancing because they saw it as the fastest
> way to make progress. Google’s car team embraced Levandowski’s nature, too.
> The attitude, says a former colleague, was “he’s an asshole, but he’s our
> asshole.”

[https://www.bloomberg.com/news/features/2017-03-16/fury-
road...](https://www.bloomberg.com/news/features/2017-03-16/fury-road-did-
uber-steal-the-driverless-future-from-google)

~~~
objclxt
> “This is like the Swiss patent office suing Einstein for inventing the
> theory of relativity while he worked there.” says someone who worked at the
> company’s driverless car program

Well, the Swiss patent office wasn't _paying_ Einstein to come up with the
theory of relativity, whereas I'm pretty sure Google _were_ paying for LIDAR
innovations. I hope that anonymous source's code has fewer leaps of logic than
that analogy...

------
fforflo
A few days ago there was an article posted on HN (I think it was from Medium )
that provided a really long and detailed timeline of the events. How and when
Kalanick and Levandowski met, when was the acquisition confirmed and so on.
Anyone has it please?

~~~
obmelvin
I believe this was it - [https://danielcompton.net/2017/03/14/uber-
bombshell](https://danielcompton.net/2017/03/14/uber-bombshell)

~~~
fforflo
Yes. Thanks a lot.

------
ganfortran
What does this imply?

~~~
dehugger
My impression of invoking the fifth amendment has always been "If I say
something I might go to jail, so I'm going to exercise my right to say
nothing."

Personally, I view it as more or less an admission of guilt, but I'm sure
there are a host of legal reasons to do this (besides actually being guilty)
that I am unaware of.

~~~
akerl_
That's an unfortunate but accurate description of the average person's
understanding of the 5th amendment. The reality is more complex: it's pretty
easy for any statement, even one which is 100% accurate and made from a
position of actual innocence, to contribute to a guilty verdict.

An interesting video on the topic:
[https://www.youtube.com/watch?v=i8z7NC5sgik](https://www.youtube.com/watch?v=i8z7NC5sgik)

~~~
guelo
Yet civil trials happen all the time with hours upon hours of witness
testimony without anybody invoking the 5th amendment for fear of being
prosecuted.

~~~
mattmanser
Without watching the video, don't talk to the cops is an entirely different
ballgame.

Having been arrested myself for driving a red car with 2 males inside where
the crime happened miles away.

They really, really aren't your friends, repeatedly say yes for a lawyer. Your
first arrest will disabuse you of any relic of your childhood "cops are your
friends" bullshit.

Any parent who hasn't told you by the age of 17 that cops are not your friends
anymore is wildly negligent of their basic duty as a parent. While you live in
that wonderful pre-adult age, they are your first call.

------
beedogs
This is the end for Uber. And it couldn't happen to a more deserving company.

------
ge96
Plead the fifth cause you can't plead the first!

\- RATM

I have no idea what's happening. I support autonomous vehicles and not having
to walk 6 miles home after work if there was greater public transportation
that operated at night.

------
dzhiurgis
While I do respect the right to protect your IP, Uber is 10 times smaller
company than Google. The lawsuit is about technology that can potentially save
thousands of lives and probably will be made open source in few years anyway.

~~~
jedmeyers
The fact that you can steal the technology without any consequences will
drastically slow down the development of such technology, since noone would be
willing to invest a lot of money into something that can be easily stolen. And
will potentially cost more lives in the long term.

~~~
WillyOnWheels
> And will potentially cost more lives in the long term.

The now unemployable portion of society involved in transportation that will
be replaced by self driving robots are going to potentially cost more lives in
the long term.

