Waymo LLC v. Uber Technologies, Inc. et al

Filing 2493

ORDER ON #1612 DAUBERT MOTION RE JIM TIMMINS AND #2194 MOTION IN LIMINE RE DUE DILIGENCE by Judge Alsup. (whalc2S, COURT STAFF) (Filed on 1/18/2018)

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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.
ORDER ON DAUBERT
MOTION RE JIM TIMMINS
AND MOTION IN LIMINE RE
DUE DILIGENCE

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

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Defendants.
/

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No. C 17-00939 WHA

After two continuances of the trial date and in advance of the third final pretrial

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conference in this action for trade secret misappropriation, this order DENIES defendants’

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Daubert motion to exclude plaintiff’s corporate transactions expert and also DENIES plaintiff’s

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motion in limine to exclude evidence of a third-party due diligence investigation and report.

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1.

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Defendants Uber Technologies, Inc., and Ottomotto LLC (collectively, “Uber”) move to

UBER’S DAUBERT MOTION RE JIM TIMMINS.

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exclude plaintiff Waymo LLC’s corporate transactions expert Jim Timmins from opining that

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Anthony Levandowski controls and indirectly owns Tyto through a trust, on the basis that

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Timmins is not an attorney with experience in the law of trusts (Dkt. No. 1612). Timmins is the

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managing director of a business valuation and financial advisory firm and has worked for over

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35 years in investment banking, venture capital investing, and valuation services. He has

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specialized experience in corporate transactions and is “familiar with documents for corporate,

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pass-through, and trust entities and transactions involving them” (see Dkt. No. 1774-11 ¶¶

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1–13). His opinion is essentially a succinct summary of the paper trail between Levandowski

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and Tyto and will assist the jury in understanding this complicated issue. He will therefore be

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permitted to explain this issue from a corporate perspective, without prejudice to targeted

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objections at trial if he veers off into improper legal opinions beyond the scope of his expertise.

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Furthermore, on direct examination, Waymo is ORDERED to have Timmins come to grips with

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Uber’s accusations that his opinion is simply incorrect and contradicts the actual documentary

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evidence (see Dkt. No. 1887-4 at 1–4). Except as stated herein, Uber’s motion is DENIED.

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2.

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Waymo moves to preclude Uber from introducing evidence or arguing that Uber relied

WAYMO’S MIL NO. 18 RE DUE DILIGENCE.

on the Stroz Friedberg due diligence investigation and report to prevent trade secret

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For the Northern District of California

United States District Court

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misappropriation (Dkt. No. 2194). First, Waymo contends Uber has no evidence of such

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reliance because it asserted privilege over communications concerning the due diligence

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investigation and report. In its response, however, Uber clearly identifies non-privileged

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evidence — including the due diligence report itself — that could potentially support either

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side’s narrative (see Dkt. No. 2245 at 2–4). Second, Waymo contends that, in light of its

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assertions of privilege, Uber is precluded from relying on an advice-of-counsel defense, but

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Uber expressly disclaims reliance on any such defense in its response (see id. at 4–5). Waymo

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remains free to raise targeted sword-and-shield objections at trial if Uber attempts to selectively

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use privileged evidence in its defense. The sweeping preclusion sought by Waymo’s motion,

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however, is unwarranted. The due diligence investigation and report are crucial evidence at the

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heart of this case. Both sides will be able to make their arguments to the jury based on that

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evidence. Waymo’s motion is therefore DENIED.

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IT IS SO ORDERED.

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Dated: January 18, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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