[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]
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.
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.
That's almost always what happens. The big exception is if the defendant opts for a bench trial.
edit: I also like this sequence explaining why thoughts are not crimes. 
but I wish that lawyers could produce these flow charts when they say "it depends"
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.
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.
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.
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.
Lawyer: <complains about proceedings appearing in the news>
Judge: "Okay. The public will read what you just said."
"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.
If you have time to kill, an outrageously funny example of a judge losing it is "State of Georgia vs. Rick Allen". If you prefer watching a video to reading a court transcript, there is a word-for-word Rick & Morty reenactment on YouTube
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.
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.
He won't buy anybody's "Chewbacca defense"
If Uber wants to protect their reputation in the news, they need to win the case.
(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)
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.
It kind of comes with the territory.
Well, when you sure as shit don't have original thoughts, you gotta go with something...
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.
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?...
What happened in arbitration?
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.
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.
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
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...
"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."
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.
Perhaps a more likely outcome is sanctions, such as an adverse inference, costs, or even a directed verdict.
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.
> “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.”
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...
“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.”
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.
See Dodge v. Ford: https://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co.
The reckoning can come after the suit's settled.
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.
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.
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.
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 ...
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.
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.
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?
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.
On the other hand, if you did do everything you are accused of, then you're probably right, it can only hurt you.
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.
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.
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.
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.
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.
An interesting video on the topic: https://www.youtube.com/watch?v=i8z7NC5sgik
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.
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.
The legal system is still run by humans, the normal (very large) margin of error exists.
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.
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.
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.
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.
Wouldn't that be a reasonable time to do this?
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 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.
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.
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)
(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 :)
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.
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.
Legally it doesn't imply anything. Innocent unless proven guilty.
[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...
Doesn't imply guilt, but it shows that Uber recognizes the alleged conduct could be criminal versus just a tort.
...or that his lawyer is competent.
Of course, he may be more worried about the future, outside this case.
"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."
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.
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.