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Uber’s Anthony Levandowski Invokes Fifth Amendment Rights in Waymo Suit (nytimes.com)
374 points by dshore on Mar 30, 2017 | hide | past | web | favorite | 170 comments

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.


That being said, if your lawyer says invoke your 5th then you do it or be prepared to hire a different lawyer. Your innocence is not a factor.

[edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually]

>[edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually]

I didn't see anything in the article suggesting that, just that Uber's lawyers said they wanted him to release the information

[edited for accuracy given child comment, thanks late2part]

No, Uber's lawyers said they wanted him to release the information. Very different from what you said.

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...) 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.

Jurisdiction appears to be Federal for this case.

>Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case

This feels about as productive as telling someone to not think of an elephant. Regardless of what the jury has been told, they will still see a refusal to answer a question, and they will take that into account. The only way this would be possible if the jury never heard the question nor the invocation of the fifth.

> The only way this would be possible if the jury never heard the question nor the invocation of the fifth.

That's almost always what happens. The big exception is if the defendant opts for a bench trial.

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

This comic/guide is wonderful. I particularly like the summary on trials by jury[1]. It's not great, but it's much better than the other legal systems we've had.

edit: I also like this sequence explaining why thoughts are not crimes. [2]

[1]: http://lawcomic.net/guide/?p=337

[2]: http://lawcomic.net/guide/?p=380

[1] links to the last page, you want: http://lawcomic.net/guide/?p=299

Nice! That was super helpful. I wish the author would put arrows on his flow chart though. Clearly not an engineer :)

Proceeding from the bottom up makes for interesting reading.

It's crazy how the section about dealing with the police is nearly double the size of the rest of the chart.

How are Levandowski or Uber invoking the Fifth Amendment, then? Levandowski is not being asked by the government since this is a civl suit (unless the court counts as the government, per the flowchart?). And Uber is a corporation.

He's said he won't provide documents for the trial, at which point Google's lawyers would ask for a judge's order compelling him to do so. His lawyer says he won't provide them in that case either. They skipped the step of waiting for the actual order.

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"

Sorry, is it not handy because it's inaccurate? Or simply because it's so lengthy?

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.

> 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.

> 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.

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.

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.

Some would say it's a feature, not a bug.

You see Venezuala's Supreme Court reinterpreted the validity of their democratically elected representatives today? lol!

Would you please not post unsubstantive comments to HN?

let gets_complicated = "FDR is going to pack the court if I don't start finding ways to go along with him"

If anything, the Fifth Amendment has been interpreted more broadly than intended! The Constitution just says that the government can't compel someone "to be a witness" against himself "in any criminal case." Just reading the text, the only questions are (1) is this a criminal case, and (2) is the government forcing you to be a witness in the case? If yes, the Fifth Amendment applies. If not, then it doesn't. Easy peasy.

But as interpreted, the Fifth Amendment covers much more than "be[ing] a witness," and doesn't only apply "in a criminal case." And the whole Miranda thing is pulled totally out of thin air. If you look at the chart, most of the exceptions and edge cases in the are there to cabin and delineate all the extra protections the Supreme Court has layered on top of the Fifth Amendment.

One of the authors of this piece posted an amusing court transcript on Twitter: https://twitter.com/mikeisaac/status/847568150916878336

Oh my god:

Lawyer: <complains about proceedings appearing in the news>

Judge: "Okay. The public will read what you just said."

Reading that transcript, I'm surprised a judge that obviously biased and unprofessional would get through the case and not be overturned on appeal.

The above poster may have overstated it slightly; the judge's response had a bit more to it that makes it less of a slap.

"Okay. The public will read what you just said.

I'm sorry, but the public's right to know what goes on in the federal courts is more important than the newspapers beating up on you in the press."

Which is absolutely true, and more than anything you can read it as cautionary from the judge. The Lawyer is trying really hard to draw attention away from what's going on and the Judge is outright saying the freedom of press and right of the public to know is more important than the case getting slammed.

It's not bias, and it's really not unprofessional either. Most of the transcripts I've taken the time to read, Judges usually do have a slight sarcastic side to them when Lawyers or participants in the court do unusual or silly things, but it's always framed around the work.

Sometimes judges lose it - true, but that's why why we have the stenographers.

In this case, the lawyer was trying to make a really silly play to garner sympathy for their client, and the judge called them out on in.

> Sometimes judges lose it - true, but that's why why we have the stenographers.

If you have time to kill, an outrageously funny example of a judge losing it is "State of Georgia vs. Rick Allen"[1]. If you prefer watching a video to reading a court transcript, there is a word-for-word Rick & Morty reenactment on YouTube[2]

1. http://legal.blog.ajc.com/2016/06/23/georgia-judge-loses-it-...

2. https://www.youtube.com/watch?v=WTWdP5DMdsM

That is totally incredible. But apparently real. I'm surprised the judge got off so lightly.

Agree that it was a ridiculous request by the lawyers, ... surely they've heard of the Streisand effect.

But I think GP wanted to say that even if we agree with what the judge said, it might benefit the defendant on the appeal if they can show this judge was not impartial in some way.

Wonder if this is ever used as a technique - if judges are not impartial, then bait them into showing it on the record so to speak.

Accusing a judge of not being impartial is a non-starter, but improper comments can be a basis for a larger "abuse of discretion" argument. The idea is that a discretionary decision can be overturned on appeal if it's not within the range of reasonable decisions in that situation. So if the judge said "well that's a stupid argument," at the hearing before the lawyer had presented, and the argument was actually good, you might throw that quote in from the transcript to argue that the judge glossed over the merits of your argument instead of giving it serious consideration. Not "she's biased" but "she just didn't give this enough thought."

Of course you'd never piss off the judge hoping to get a negative reaction. The appeal is 95% decided on the basis of the judge's written opinion, and your appellate briefs. If the judge ignored a good argument you made, it'll be apparent. And if it's a close call, the appellate court will show deference to the judge.

Makes sense, thank you for explaining.

I don't get how it is impartial. The fact is that the public can read it. It's not his opinion.

I didn't say he was, but he might appear to be as far as others would be concerned.

This is judge Aslup. The same judge who learned Java so he could adjudicate the Oracle v Google case with some level of expertise and was impressive with his insight in every aspect of that case I followed. IMO, he embodies the professionalism that we require from the bench. I certainly wouldn't throw out attacks on him based on a mildly snarky comment replying to a pretty silly argument.

Was it the same case where an Oracle lawyer disclosed, supposedly on accident, the figures Google earned? Or the other way around. Sorry, my memory is hazy. But I remember the judge being pretty harsh and snarky towards the lawyer.

Also, his middle name is Haskell!

Hence why opposing lawyers will try to smear his image make him seem unprofessional

He won't buy anybody's "Chewbacca defense"

Uber's lawyers are being idiots, asking for things that they know they won't get, and he's slapping them down. To claim he's biased and unprofessional you have to show that he wouldn't do the same thing to anybody else acting the same way.

If Uber wants to protect their reputation in the news, they need to win the case.

You seem to think judges have an obligation to deny their humanity. That's not the case, and never has been. Read some opinions (and dissents) from the Supreme Court if you have the time. Sarcasm is an important tool of debate, and no reason to dismiss someone's judgement.

(And to make sure this doesn't involve into the culture war: Justice Scalia was probably the best example of undeniable intelligence unashamedly using humour and sarcasm in his writing)

Maybe we read an entirely different transcript then; I saw nothing resembling what you claim.

Alsup is not an unprofessional judge, although his bachelor's is in Math, not Law.

You can't really get a bachelor's in 'law' in the US. I don't think Aslup is old enough to have one from the 50s or 60s or w/e.

in precisely what way?

Found the Oracle lawyer on HN!


Please don't post accusations like this, no matter what you're replying to. If you think a comment doesn't belong on HN, you can flag it by visiting its page via the timestamp link and then clicking on the flag link.

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.

> "i have received more new twitter followers from a happenstance endorsement from 'ladybro' on hacker news than any other moment ever"


they're good twetes, mike

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

I'm really tired of people being snarky for the sake of being snarky. I think it comes across as smarmy, like "hey, look at this joke we are all in on."

There are some people who are snarky in a way that is witty and thought-provoking. Those are the people whose snark I enjoy.

It's kind of like the difference between someone who has a very dry sense of humor, and the person who calls themselves sarcastic, but in reality is just a mean person.

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.

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

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...'

One person's "superficial understanding of lots of things" is another person's deep understanding of how humans act and how they rationalize their actions, regardless of domain.

Journalists get bombarded with smarmy bullshit all day. Snark is a coping mechanism.

Your comment reminds me of a very specific Clark and Dawe skit: https://www.youtube.com/watch?v=8Ue9ek9tTSg

I am very tired of snark being a virtue of tech journalists

Well, when you sure as shit don't have original thoughts, you gotta go with something...

I don't know if I'd go that far.

Nothing like having a really good lawyer. /s

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.

> Amusingly, Google's employment contract, which specifies binding arbitration for employee-employer disputes

Sorry, does this also apply to ex-employees? Or did they go to arbitration _before_ he quit, implying that they had an inkling of the theft even then?...

> Google did take Levandowski to arbitration.

What happened in arbitration?

Apparently nobody is saying. Arbitration is confidential.

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.

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.

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.

> 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

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...

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.

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."

By the way Judge William Alsup is the one who presided over Oracle v. Google and knows how to code.

That's an understatement. Haskell is his middle name.

I heard he has a Lisp.

> Does Levandowski also have his own lawyers?

He damn well should. It's ALWAYS important to keep in mind that your employer's lawyers work for the company, not you, and will be angling for the outcome which is best for the company, not you.

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.

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.

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.

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.”


> “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...

Per that article, Google bought both 510 Systems and Anthony's Robots. So regardless of if he invented the IP in question during his work for google or for his own companies, it's owned by Google. Whatever sketchy subcontractor arragement was in place all seems to be moot.

  “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.”
Shit like this is why so many companies insist on blanket IP assignment clauses in developers' contracts.

"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? "

It would damage their claim that nothing bad happened. You also assume this isn't a deliberate strategy on the part of the lawyers:

See if they can avoid discovery by having him claim the fifth, while not firing him/etc for doing it.

You can hold the fact that someone claimed the fifth against them in a civil lawsuit. Uber could just be betting that the consequences of this strategy are better than the documents that would get released.

I think Kalanick has a majority of Uber's voting shares, so neither the board nor anyone else can force him to leave. Likewise, if Kalanick wants Levandowski to stay, he stays.

I don't think that works if there is truly criminal culpability here. If you're on the Board of Directors you can fire the clown or you can let him vote you off the board. You don't get to say: I can't do anything because he's the majority shareholder.

How do you fire any one as a board member? Your only input is the vote and if the CEO control the majority of votes, your vote is meaningless.

It's not always that simple though. Kalanick can't just do whatever he wants with no fear of other shareholders intervening.

See Dodge v. Ford: https://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co.

I believe you actually do. Sure you can ask nicely but he has voting control of the company so until proven guilty what more can the board do?

Because if you fire them they will turn against you. They are your employees, and their wrongdoong will be attributed to you. They might very well agree to testify against you, civilly or criminally, in exchange for the suit being dropped. But if you keep them on the payroll (and often pay their lawyers) you can create a common front and limit their ability to 'go rogue' and harm you.

The reckoning can come after the suit's settled.

Uber's position is that Google's claims are baseless and Levandowski did not use stolen IP to build his autonomous vehicle. Firing him would would severely undermine those claims.

And yeah, it seems like that's probably not true, but it's the position they've decided to take. We don't know for sure that it's just Kalanick pushing that story; the board could be complicit.

I'd probably have security go through their "personal shit" especially any storage media too, given the background.

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?

Yes. Thanks a lot.

What does this imply?

A lot of people here with their TV law degrees are giving you gibberish answers that pleading the 5th doesn't imply anything. They are wrong.

The fifth amendment is only available to avoid testimony that could potentially implicate oneself in a crime. Proper exercise of 5th amendment rights cannot be used against a person in a criminal prosecution.

This isn't a criminal case (yet). It's a very high-stakes civil case. Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. In other words, it makes you look very bad, and the finder of fact is free to assume the worst.

Not applicable here yet, but in rare cases prosecutors will also get around the 5th is by offering immunity, in which case you may be ordered to testify, and your testimony cannot then be used as evidence against you in a criminal trial; refusal to testify under immunity can result in punishment for civil or criminal contempt. You cannot invoke the 5th to protect yourself from civil liability, or to avoid implicating another person in a crime.

There's all sorts of things that "pleading the fifth" doesn't protect you from. For instance, public employees are often required by law to cooperate with all public investigations, including criminal investigations. Pleading the fifth as a public employee in an public investigation can result in mandatory termination, even if there is no evidence of wrongdoing.

How does this event of pleading the fifth compare with Bill Gates' interrogation under the monopoly investigation in 1998? I've heard Gates' insistent way of misunderstanding every single question was something that would piss of judges rather than hide your defense (so much that the judge published a best of during the trial): Do pleading the fifth and playing dumb both harm your defense in the same way?

No, it's completely different. Sandbagging a deposition and playing stupid games with discovery is almost standard practice. Judges hate it, opposing counsel complains bitterly, but in a pretrial civil case, out of sight of a jury, just about everyone does that on both sides.

Pleading the 5th is rather extraordinary in a civil business dispute and is not a normal tactic when you have a strong defense. It immediately raises a stink of crime for everyone concerned, and can certainly spook shareholders/investors.

". Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. "

Yes, but they lose nothing as a strategy by having him do it unless the inference the judge threatens is so negative, and then, as they said, "his view on whether to claim the fifth may change as the case progresses".


Now, certainly, most companies are ethical enough not to try such a strategy, but ...

They lose nothing if the disclosure is, in fact, highly damaging. Which is the obvious point. What we have here is 10 fools going in "But the Constitution" and "Innocent until proven guilty" and "It means nothing."

No, it means a hell of a lot, in this context.

Like, when you get pulled over and the cop asks you, "Do you know why I pulled you over?", you could say "On the advice of my attorney I invoke my 5th amendment right to remain silent because the answer to that question may incriminate myself. I'm not answering any questions without my lawyer."

This is almost always the wrong way to start off a traffic stop, no matter how many times people post the "NEVER SAY ANYTHING TO COPS" video.

"No, it means a hell of a lot, in this context." Sure, to this i'd agree. I just think, unlike some others here who think this is uber and levandowski fighting, that more likely, in lawsuits of this size, it's a collaborative strategy.

Your answer would be much stronger if you dropped your tone by a magnitude and edited out the insults. Your first paragraph is particularly difficult to read.

Dunno, to me it's stronger because it emphasizes that the other answers are naive.

I've been in positions where other people in a thread happen to answer a question I have expertise in, but they don't know what they are talking about. It happens so often on forums like HN/Reddit that I appreciate it when someone can call them out for "authoritative guessing".

It was a tiny slap on the wrist.

I am not a lawyer, but basically it means he is innocent until proven otherwise and he has the right to not testify in a way that might incriminate himself and he is exercising it.

There is the sort of popular view that if you do this, it must mean you are guilty and by testifying you would actually be proven so. The problem with that is that you might actually be innocent but not be able to give evidence in a way that does not make you look guilty.

Any lawyers here willing to elaborate on how to better view this from a social point of view?

Not a lawyer. Levandowski is trying to avoid turning over (some) documents in the discovery process of the civil lawsuit Waymo is filing against Uber. They are doing this by claiming it could incriminate him and open him up to the possibility of criminal charges.

Will this actually work? Maybe. The fifth amendment is more complex than it might at first seem. One thing that's for sure is that if he is found to be withholding any documents that are relevant to the civil suit, but couldn't realistically incriminate him, this could backfire spectacularly. Hence the statement from his lawyers:

> One of Mr. Levandowski’s lawyers said the Uber executive’s position on invoking the Fifth Amendment may change as they examine the case.

Saying anything here can only hurt him, regardless of whether he is innocent. Waymo's lawyers can use his evasion against Uber in the ongoing civil cases, but the government can't use it against him if the government later decides to bring a criminal suit. He's basically throwing Uber under the self-driving bus to save his own skin.

It's not a question of innocent or guilt. You're talking criminal terminology. In the case at bar it's a question of liable or not. If you're sued for a bazillion dollars and you didn't do anything wrong, then saying something that would help your case could save you a bazillion dollars.

On the other hand, if you did do everything you are accused of, then you're probably right, it can only hurt you.

As I said above, it's a question of whether he is innocent or guilty of the crimes he will be accused of in the potential criminal case that will follow. Remember, pleading the fifth can only be done to avoid self-incrimination, not to avoid testifying about your employer.

You said "regardless of whether he is innocent." There is no criminal case or publicly announced investigation. So pleading the 5th every time you are asked a question in litigation is always the winning strategy, in case you end up being prosecuted?

What about obstetricians and neurosurgeons and such other high net worth people practicing in litigious environments, who are liable to be sued a few times through the course of their career? Even if the doctor committed borderline malpractice, answering every question in a document demand or deposition with "I plead the fifth" is a good way to lose everything on a case that could have been dismissed early on without trial. When pretty much zero doctors are prosecuted for injuring or even killing their patients in a professional context.

There's pretty much no way to build a multi-billion dollar enterprise without attracting at least a few lawsuits along the way. This is obviously not an ordinary case.

Read the very next sentence to see how the word "innocent" is used in context. If it's not clear that I'm talking about criminal charges from that post or from the fact that we're discussing the fifth amendment (which can only be invoked if the testimony can lead to criminal liability for the person testifying) or from the fact that he is not a defendant in the current case, I hope it's clear now.

Lewandowski won't be financially ruined if Uber loses this civil case, and he won't even be very financially inconvenienced. On the other hand, there is huge potential downside if he gets charged personally with a crime.

This is one of the few posts that actually answers the question.

Invoking the fifth makes it more likely that he (and Uber) will lose the present civil case, which would be very bad for Uber and pretty bad for him. But it could protect him from future criminal prosecution. So I guess he thinks it's pretty likely that he would be found guilty.

I don't think exercising your rights should imply anything

It does in the civil context, but not in the criminal context, which seems precisely right.

In the criminal context, the government is trying to punish you with jail. Actual deprivation of liberty. In such cases, we require they make be able to make their case without you saying you did it.

In the civil context, you can avoid saying you did it if it would cause you to possibly be convicted of a crime, but unlike the above, there is no possibility of deprivation of liberty. As such, if you do try to avoid saying you did it, people are allowed to use it to make their case that you did it.

That asks the rest of us to abandon inference, which I'm not inclined towards.

If you are on a jury then you should because that violates the law and his rights.

This is not a courtroom and we are not jurors.

And that's the problem with the mobs on the internet.

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.

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

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.

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.

This is of course, complete nonsense. There are a huge number of reasons that an factually accurate statement made by a factually innocent person could harm their case.

It's funny. I regularly watch crime documentaries and am a big supporter of my rights (I am a US citizen) and detest that people are assumed to be guilty and that is largely how our legal system works. I like to believe I am decent at filtering out useful knowledge from the media.

But my first thought when I saw this headline was "oh fuck - that's bad"

Emotions are so good at getting in the way of critical thinking. And nowadays I think most people admit that they read headlines first, then comments, and then maybe (but probably not) the story. I wonder how horribly skewed my worldview is because of how I digest information.

You'd also invoke the fifth if your testimony could appear to be self-incriminating.

The legal system is still run by humans, the normal (very large) margin of error exists.

> You'd also invoke the fifth if your testimony could appear to be self-incriminating.

That's true in theory. In practice, there are few cases where invoking the fifth appears less incriminating than speaking.

As you said, the legal is run by humans, and humans tend to view invoking the fifth as suspicious.

actually it is exceedingly rare for a criminal defendant to ever take the stand and offer testimony...in fact, most legal professionals would say a defendant taking the stand is more often a Hail Mary and such a move indicates guilt.

And this is not a criminal trial. It is exceedingly rare for a head of a division and the former CEO of an acquired company to plead the 5th in response to litigation demands. Therefore, it looks damning and is damning to Uber's case, which is why their lawyers are in full damage-control mode. Having bought Otto, Uber has assumed its liabilities, including liability for Levandowski's past actions as founder of Otto.

In any case (criminal or civil) the gut reaction/bias the public or a layman may feel when one opts for the 5th (silence = culpability/liability) is ignored in favor of the law (5th != guilt) applied by both judges and informed juries.

Take a real-life case:

-OJ criminal case for murder, doesn't take the stand (found not guilty)

-OJ civil case for wrongful death, takes the stand gives inconsistent statements/impeached - not regarding anything to do with the case itself but his prior record (found liable)

Yes, the standards are different in civil and criminal but the legal strategy is the same...the defendant doesn't have to do anything, the burden is on the other party to prove their case, and opening yourself up to cross when there are criminal allegations (whether in a actual criminal case or civil case) would be a questionable legal decision. All this is compounded in this Uber case where allegations of (potentially) criminal acts are being made in the civil case because potentially a criminal case may follow, but it does beg the question if this theft of intellectual property is so obvious why hasn't law enforcement brought the charges yet (they in fact may, but see how silence doesn't really indicate anything). FYI, yes in a acquisition Uber likely assumed all liabilities, but that would also generally exclude liabilities as a result of criminal acts.

> FYI, yes in a acquisition Uber likely assumed all liabilities, but that would also generally exclude liabilities as a result of criminal acts.

That's not true at all where the act is done in an official capacity and inures to the benefit of the acquired firm. The entire case is basically that Otto was built upon the founder's stolen tech. If Uber purchased and received infringing and stolen property then they are very much on the hook for all applicable damages, including punitive damages for Otto's egregiously bad acts.

>That's not true at all where the act is done in an official capacity and inures to the benefit of the acquired firm.

If you are suggesting Uber instructed the Otto founder to steal the tech and set up his own shop to be acquired...then, yes Uber would be liable, and while that may be the theme of the case, if there were any real evidence theft of IP was done as an official act of Uber this would already be settled.

An employer is generally liable for the acts of its employees done in their official capacity (respondiate superior) the employer will not be liable for criminal acts of its employees. That is unless you can find smoking gun evidence the employer instructed the employee to commit the act, otherwise legally criminal acts are outside the scope of official employment and employers are not liable...the same is true of an acquisition, whereas Otto would have expressly stated they own all IP and have authority to sell the same, which would be a breach and potentially void/invalidate the entire acquisition. Either way, If Uber is infringing IP they can be enjoined, but unless it can be shown Uber instructed the Otto founders to steal the IP or knew it was stolen I think they would be indemnified, assuming that's what occurred.

Say you get asked about your wherabouts, but you were cheating on your spouse at the time. Admitting that in court is a big problem for you, but doesn't really show you are guilty of anything but being a shitty husband/wife.

Wouldn't that be a reasonable time to do this?

As far as I'm aware, you cannot falsely take the Fifth. As adultery is not a crime, you could not take the Fifth.

Disclaimer: IANAL.

EDIT: I'm getting some downvotes, so I will link to this that seems to support what I'm saying:


Perhaps my use of 'falsely' is confusing, but what I mean is if what you are refusing to say is not actually a crime, and it is discovered, you could be charged with a crime (i.e. perjury, giving false statements under oath).

It doesn't matter that adultery isn't a crime: you're being questioned by the police, and any answer has the possibility of including details which might seem incriminating for whatever they're actually investigating, regardless of your innocence.

It seems like you're approaching the 5th amendment as a direct point/counterpoint arrangement: the police accuse you of robbing a bank, you know you didn't because you were cheating on your spouse, you can't take the 5th because cheating on your spouse isn't a crime, so you must answer "I couldn't have robbed the bank because I was cheating on my spouse at another location".

But the amendment is much broader than that. Since you don't know what other information the police are attempting to validate or even what crimes they're aware of, you have no way to know if "I was at $hotel with $other_person at $time" may incriminate you in this case or some other case.

You are right that the police can't force you to talk and that a judge can't if you are on trial.

However a judge could force you to testify in someone else's case. You can't broadly plead the 5th in that case unless the testimony is incriminating. Let's say you saw a murder happen at a hotel you were at while cheating with your wife. A judge is allowed to force you to answer the question.

Yes.Infact, if you conceal the information about the crime and the crime happens to be felony, you will be charged for "misprision of felony."

The federal definition of misprision requires that, “(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.” See United States v. Baumgartner (6th Cir. Sept. 24, 2014)

Adultery is actually a crime on the books in some states still.

(I only know because i am barred in maryland and dc, and virginia was the state that had adultery on the books)

It is unlikely to ever be held constitutional, so in practice, they use it as something to plea bargain to :)

Can you elaborate? As stands your logic makes absolutely no sense.

I added a link above that hopefully clears up what I was saying.

Depends on the jurisdiction. It is a crime in some places.

You're completely wrong, lawyers and interrogators will twist your words against you to make themselves more successful regardless of guilt. The YouTube video posted above is a good example of the how, but there are many more beyond that.

Certain truthful arguments just naturally come off as lies. I could see invoking the 5th when you feel like you'll be misinterpreted no matter what.

That he has a Constitutionally provided right that he is choosing to exercise. It is improper to draw any firm conclusion beyond that, IMO.

Legal vs rational evidence. To borrow the excellent exchange from A Man for All Seasons:

More: If, therefore, you wish to construe what my silence betokened, you must construe that I consented, not that I denied.

Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?

More: The world must construe according to its wits; this court must construe according to the law.


> Legal vs rational evidence.

In a high-stakes (or even potentially high-stakes) legal situation, it is entirely rational to invoke your 5th amendment right, provided that it even remotely plausibly applies. You don't need to actually be guilty of anything to invoke the right and I don't draw a conclusion that you are likely guilty by your exercise.

Super good movie and highly recommended.

Practically, it implies that he doesn't want to talk about something that is incriminating to himself.

Legally it doesn't imply anything. Innocent unless proven guilty.

I believe that's only true in criminal matters against you, not if you're called as a witness as part of a civil suit.

Not sure why you're getting downvoted -

[T]he 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.

Baxter v. Palmigiano https://scholar.google.com/scholar_case?case=774435244658025...

"Legally it doesn't imply anything. Innocent unless proven guilty. " This is wrong in the civil context.

He invoked the fifth amendment

Which is interesting because you don't invoke the fifth in a civil case unless "the answer might tend to subject to criminal responsibility him who gives it"

Doesn't imply guilt, but it shows that Uber recognizes the alleged conduct could be criminal versus just a tort.

>Uber recognizes the alleged conduct could be criminal versus just a tort

...or that his lawyer is competent.

I'm not convinced citing the 5th is always a great idea in a civil case[1].

Of course, he may be more worried about the future, outside this case.


Also, since when does the 5th amendment protect documents?

I too am confused by the article's wording in explaining that he invoked the fifth "to avoid incrimination in turning over documents relevant to the case" - is it perhaps to make a technical distinction of "here, these are my documents" vs. "oops, I don't know what these documents in my bedroom are or how they got here"?

There's a techcrunch article with better detail.

"Uber’s lawyers claim that the company doesn’t have the documents Levandowski allegedly stole from Waymo and therefore won’t be handing them over tomorrow as part of a scheduled document production."

So more like "I don't have those documents, and I can't say more."


The article seems to suggest that uber is complying with discovery by saying they have 0 documents and his lawyers are saying that revealing any documents he had would be testimony against himself.

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

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


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.

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.

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.

> 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.

well - the other side of the coin, uber uses this to dominate and monopolize the market, with an unfair advantage it got over other players.

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