Waymo LLC v. Uber Technologies, Inc. et al

Filing 1885

FINAL PRETRIAL ORDER (denying #1541 Motion in Limine; denying #1543 Motion in Limine; granting #1546 Motion in Limine; granting #1547 Motion in Limine; granting #1549 Motion in Limine; denying #1554 Motion in Limine; denying #1556 Motion in Limine; denying #1564 Motion in Limine; granting #1566 Motion in Limine; denying #1610 Motion in Limine) by Judge Alsup. (whalc2S, COURT STAFF) (Filed on 9/28/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAYMO LLC,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
UBER TECHNOLOGIES, INC.;
OTTOMOTTO LLC; and OTTO
TRUCKING LLC,

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FINAL PRETRIAL ORDER

Defendants.
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No. C 17-00939 WHA

FOR GOOD CAUSE and after a final pretrial conference, the following constitutes the
final pretrial order and rulings on motions in limine:
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This case shall go to a JURY TRIAL on OCTOBER 10, 2017, at 7:30 A.M., and

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shall continue until completed on the schedule discussed at the conference. The issues to be

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tried shall be those set forth in the joint proposed pretrial order except to the extent modified by

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orders in limine. This final pretrial order supersedes the complaint and answer. Only issues

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expressly identified for trial remain in the case.

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2.

Rulings on the motions in limine are set forth later in this order.

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3.

Except for good cause, each party is limited to the witnesses and exhibits

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disclosed in the joint proposed pretrial order less any excluded or limited by orders in limine.

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Materials or witnesses used solely for impeachment need not be disclosed and may be used,

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subject to the Federal Rules of Evidence.

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4.

The stipulations of facts set forth in the joint proposed pretrial order are

approved and binding on all parties.

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5.

A jury of TEN PERSONS shall be used.

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6.

Each side shall have SIXTEEN HOURS to examine witnesses (including direct

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examination, cross-examination, re-direct examination, re-cross examination, etc.). Each side

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shall also have ONE HOUR AND TEN MINUTES to present opening statements. Time allocated for

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closing arguments shall not count against these limits. If one side runs out of time despite being

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efficient, non-duplicative, and non-argumentative in the use of the allotted time, and it would be

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a miscarriage of justice to hold that side to these limits, then more time will be allotted.
7.

The parties shall follow the Court’s current Guidelines for Trial and

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For the Northern District of California

United States District Court

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Final Pretrial Conference in Civil Jury Cases, separately provided and available on the Internet

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at http://www.cand.uscourts.gov, which guidelines are incorporated as part of this order.

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RULINGS ON PLAINTIFF’S MOTIONS IN LIMINE*

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MIL NO. 1 RE BONUS THEORY (DKT. NO. 1566).
Based on briefing and counsel’s argument during the final pretrial conference, the

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evidence at issue, even if believed, see United States v. Evans, 728 F.3d 953, 962–63 (9th Cir.

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2013), at best suggests Levandowski may have had some concerns about his bonus. Under FRE

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403, the probative value of this evidence — even if believed — as to the very different question

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of whether Levandowski undertook the actions at issue in this case as a result of those concerns

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is substantially outweighed by the danger it would create of confusing the issues, misleading the

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jury, or wasting time. This motion is GRANTED.

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*
The non-sequential numbering of these motions in limine results from previous submissions wherein
both sides proposed other motions in limine for early adjudication. The undersigned judge made tentative
rulings as to most of those proposed early motions in limine, some of which were renewed — with their original
numbering — in advance of the final pretrial conference.

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MIL NO. 13 RE DAVID DRUMMOND (DKT. NO. 1547).
Based on briefing and counsel’s argument during the final pretrial conference, the

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proposed evidence and argument about Drummond would be a waste of time and should be

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excluded under FRE 403. This motion is therefore GRANTED.

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MIL NO. 14 RE LEVANDOWSKI’S COOPERATION (DKT. NO. 1552).

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The Court DEFERS ruling on this motion pending the deposition of Attorney Angela

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Padilla next week. Both sides may submit supplemental briefs no more than FIVE PAGES in

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length regarding the significance, if any, of that deposition.

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For the Northern District of California

United States District Court

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MIL NO. 15 RE WAYMO’S MOTIVATIONS FOR THIS LAWSUIT (DKT. NO. 1543).
This motion is DENIED.

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MIL NO. 16 RE SEVAL OZ’S EARRINGS (DKT. NO. 1556).

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Based on briefing and counsel’s argument during the final pretrial conference, any delay

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between when Otto Trucking obtained the earrings and when it made them available to Waymo

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was de minimis. Moreover, Oz was Google’s own employee, and there is no indication that she

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was in any way unavailable to Waymo during this litigation. Finally, Waymo — for all its

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complaints — has not diligently pursued discovery concerning the earrings despite having had

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opportunities to do so. In short, any deficiency in Otto Trucking’s disclosures under Federal

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Rule of Civil Procedure 26 was harmless. This motion is DENIED.

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MIL NO. 17 RE UBER’S DESIGN-AROUNDS (DKT. NO. 1560).
This motion was withdrawn at the final pretrial conference (Dkt. No. 1863 at 151:3–7).

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DAUBERT MOTION RE JAMES MALACKOWSKI (DKT. NO. 1607).
This motion is related to and will be decided together with Otto Trucking’s pending

motion for summary judgment (Dkt. No. 1423) in a separate order.
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RULINGS ON DEFENDANTS’ MOTIONS IN LIMINE
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MIL NO. 2 RE OVERRULED CLAIMS OF PRIVILEGE (DKT. NO. 1546).
This motion is GRANTED without prejudice to either side seeking leave of the Court at

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trial to present specific evidence or argument regarding the other side’s overruled claims of

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attorney-client or work-product privilege.

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MIL NO. 22 RE BENCHMARK (DKT. NO. 1549).

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Bill Gurley may testify as to his own percipient knowledge regarding his tenure as a

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member of Uber’s board of directors (and possibly other facts) but may not speculate about

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matters outside of his percipient knowledge. No evidence or argument about Benchmark’s
lawsuit against Travis Kalanick will be permitted, except that defendants may use that lawsuit

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For the Northern District of California

United States District Court

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for impeachment purposes. To the extent stated herein, this motion is GRANTED.

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MIL NO. 23 RE COMMUNICATIONS LOG (DKT. NO. 1554).
This motion is DENIED.

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MIL NO. 24 RE FINANCIAL INFORMATION (DKT. NO. 1559).
This motion is related to and will be decided together with defendants’ motions to strike

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(Dkt. Nos. 797, 942) and Daubert motion against Waymo’s damages expert, Michael Wagner

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(Dkt. Nos. 1619, 1653), in a separate order.

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This motion is DENIED.
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MIL NO. 26 RE LEVANDOWSKI’S DOWNLOADING (DKT. NO. 1541).
This motion is DENIED.

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MIL NO. 25 RE LEVANDOWSKI’S DOWNLOADING (DKT. NO. 1564).

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DAUBERT MOTION RE LAMBERTUS HESSELINK (DKT. NO. 1610).
This motion is DENIED (1) on the condition that Waymo call Sasha Zbrozek as a

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foundational witness before calling Hesselink at trial, as discussed at the final pretrial

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conference, and (2) without prejudice to defendants renewing their objections to Hesselink’s

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proffered opinion after hearing Zbrozek’s foundational testimony at trial.

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DAUBERT MOTION RE JIM TIMMINS (DKT. NO. 1612).
The Court DEFERS ruling on this motion pending review of supplemental briefing from

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both sides.

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DAUBERT MOTION RE MICHAEL WAGNER (DKT. NO. 1619).

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This motion is related to and will be decided together with defendants’ motions to strike

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(Dkt. Nos. 797, 942) and motion in limine number 24 regarding financial information (Dkt. No.

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1559) in a separate order.

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DAUBERT MOTION RE GARY BROWN AND KRISTINN GUDJONSSON (DKT. NO. 1620).
This motion will be decided in a separate order.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 28, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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