Waymo LLC v. Uber Technologies, Inc. et al

Filing 2006

ORDER DENYING WAYMO'S MOTION FOR UBER'S CURRENT SOURCE CODE. #1977 . Signed by Judge Jacqueline Scott Corley on October 16, 2017. (jsclc2, COURT STAFF) (Filed on 10/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WAYMO LLC,
Plaintiff,

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v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.

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United States District Court
Northern District of California

Case No.17-cv-00939-WHA (JSC)
ORDER DENYING WAYMO'S
MOTION FOR UBER'S CURRENT
SOURCE CODE
Re: Dkt. No. 1977

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Discovery closed on August 24, 2017. Any new discovery sought by Waymo must be

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approved by this Court, unless stipulated to by the parties. (Dkt. No. 1954.) Waymo seeks

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production of Uber’s current source code, without limitation. (Dkt. No. 1977.) The Court denies

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the request.

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First, the request is profoundly overbroad. Waymo’s showing focuses on a need for

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Uber’s source code with respect to motion planning and lane change decisions. Even though

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Waymo had previously been given access to Ottomotto’s source code, Waymo contends that the

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source code for motion planning and lane change decisions was not included. Yet Waymo’s

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motion seeks all of Uber’s current source code without limitation. (Dkt. No. 1977 at 2 (“The

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Court should order Uber to immediately make available its current source code repository”), 4

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(“Waymo thus requests the current source code to compare Uber’s implementation to Waymo’s

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source code”), 8 (“the Court should order Uber to produce the current . . . version of its source

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code”). It is too late in the litigation for a party to make a broad, unsupported discovery request on

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the assumption that if its broad request is not granted the Court will narrow it to an appropriate

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scope. For this reason alone Waymo’s motion is denied.

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Second, even if the Court were to limit Waymo’s request to Uber’s current source code for

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motion planning and lane change decisions, Waymo has not shown sufficient cause for this new

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discovery. A week after Waymo received the Stroz Report, it argued to the district court that the

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material Anthony Levandowski downloaded included more than the LiDAR hardware on which

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Waymo’s trade secret case had focused and that the Stroz Report shows that Mr. Levandowski

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took hundreds of software files. (Dkt. No. 1723 at 77:7-13.) Waymo thus argued to the district

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court that if it could tie what software Mr. Levandowski took to what Defendants produced in this

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litigation “so that there’s absolutely no question that he took some software and copied it and put

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it in” Waymo might attempt to amend its trade secret list to include such a claim. (Id. at 77:14-

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18.)

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Waymo’s current request, however, is untethered to the “hundreds of software files” that

United States District Court
Northern District of California

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the Stroz Report supposedly showed Mr. Levandowski took. Instead, Waymo now contends that

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Ex. 37 to the Stroz Report identifies what Stroz referred to as a “snippet” of source code related to

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route planning and lane changing that was found on Mr. Levandowski’s laptop and cloud account.

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(Dkt. No. 1977 at 3, Ex. 1.) Waymo wants Uber’s current source code to compare it to this

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snippet and determine if this snippet made its way into Uber’s source code (actually Waymo wants

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all of Uber’s source code, but this snippet is its justification). But as Uber’s opposition highlights,

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this snippet is taken from a presentation that Waymo made to two different third parties. (Dkt.

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No. 1991-1, Exs. 1-3.) The evidence suggests the snippets were used to illustrate to these third-

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parties Google’s code revision process. (Id., Ex. 3.) In light of this evidence, and the lack of any

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evidence from Waymo as to the significance of these “snippets,” Waymo has not persuaded the

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Court that opening discovery into Uber’s current source code (and thus potentially into Waymo’s

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as well) is warranted at this late stage.

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Waymo’s reference to Otto Diligenced Employee Don Burnette does not tip the scale in

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favor of Waymo’s request. Waymo has not identified any Waymo source code that Mr. Burnette

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took from Waymo, other than a copy of his performance review in his gmail account that

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discussed his source code work. This evidence does not support opening up source code

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discovery, especially since Waymo again offers no persuasive evidence of its significance. It is

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thus unsurprising that Waymo’s reply focuses on different Burnette evidence. It argues that his
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continued deposition testimony and additional uncovered evidence supports Waymo’s belief that

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Uber—through Burnette—used Waymo’s source code to quickly develop its own motion planning

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and lane changing code, code that it lacked before its Ottomotto acquisition. However, there is no

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evidence that the files Waymo questioned Mr. Burnette about contain Waymo’s trade secrets. That

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Mr. Burnette testified that he did not know whether they were Waymo’s source code is not

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evidence that they are. Waymo would know that information, but Waymo does not offer any such

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evidence. Similarly, as to the notes Mr. Burnette made the day after his Waymo departure,

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Waymo has not shown that the notes contain Waymo’s trade secrets. There is thus no need to

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compare them with Uber’s current source code.
CONCLUSION

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United States District Court
Northern District of California

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Waymo seeks discovery related to an undefined source code trade secret that was not

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included on its original list of more than 120 trade secrets. (Dkt. No. 25-7.) Waymo’s evidence

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and argument do not persuade this Court that production of Uber’s current source code is

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warranted. Waymo’s motion is therefore DENIED. Any objections to this Order shall be filed

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with the district court on or before noon on Tuesday, October 17, 2017.

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This Order disposes of Docket No. 1977.

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IT IS SO ORDERED.

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Dated: October 16, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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