Why Uber threw top engineer Levandowski under self-driving bus
The judge told us to tell you to cough up or ship out
Analysis The lead Uber engineer at the heart of self-driving tech theft accusations made by Waymo against Uber has been told by his bosses to start talking or pick up his pink slips.
Earlier this week, the ride-hailing app maker sent Anthony Levandowski a letter [PDF] that told him to hand over any and all copies of the alleged stolen documents from competitor Waymo, demanded that he stop work on the self-driving technology in which he specializes, and, critically, waive his constitutional protections.
"We understand that this letter requires you to turn over information wherever located, including but not limited to, your personal devices, and to waive any Fifth Amendment protection you may have," part of the letter reads.
It also tells Levandowski – who until recently was head of its self-driving division – to have his lawyers hand over any and all relevant information while noting that "may invade your attorney-client privilege."
We know of the letter because Levandowski pinned it as an exhibit to a filing [PDF] in the ongoing case of Waymo vs Uber complaining that his constitutional rights are being undermined by the state.
Uber argues that it has little choice but to make the various demands due to the firm wording of a partial injunction made against it last week by Judge William Alsup.
In that order, Alsup specifically referenced the Fifth Amendment defense that Levandowski has used repeatedly and told Uber in no uncertain terms that it did not extend to Uber.
Uber itself says in its letter to Levandowski: "While we have respected your personal liberties, it is our view that the Court’s Order requires us to make these demands of you. Footnote 9 of the Order specifically states that 'in complying with this order, Uber has no excuse under the Fifth Amendment to pull any punches as to Levandowski.' Thus, we must demand that you set these privileges aside and confirm that you will promptly comply with the Court’s Order."
So, um, no
Despite the California district court explicitly ordering Uber to put the screws on Levandowski to provide information, the San Francisco software developer would have had the option of questioning the judge's reasoning and decision. It chose not to and decided instead to throw its former top engineer under his own self-driving bus.
It is not hard to see why: the judge had already made it plain that he considers it proven that Levandowski stole 14,000 documents from his previous employer Waymo and took them with him to Uber.
Despite significant evidence pointing to the fact that Uber actively colluded with Levandowski and may even have gone to the trouble of setting up and then buying his company as a way of providing legal cover, the judge went to some lengths to note that although Levandowski may have stolen the docs, that did not mean Uber knew he was in possession of them, or that they were effectively paying for them.
At the same time, however, Judge Alsup also referred Uber to the US attorney to consider possible criminal charges.
As such, Uber has a stark decision to make: stand by Levandowski and risk being found guilty of stealing trade secrets and possibly other criminal charges, or cut him off and argue that it had no idea what he had been up to. Unsurprisingly, it has chosen the latter course.
Why not quit? Quite a few reasons
As for Levandowski, why doesn't he just quit rather than try to stay with a company that wants him out? Especially when you consider that he is not actually named in the legal case.
Well that's hard to know for certain but it's a pretty safe bet that he feels gluing himself to Uber is his best option right now. As part of the deal made to buy his fledgling company Otto for $680m, Levandowski also received an extraordinary five million shares in Uber, currently worth $250m.
We don't know what conditions are built around that share agreement but it is common practice that employees are only allowed to vest their shares over a specified period of time. In other words, Levandowski could have 250 million reasons to stay with Uber right now.
It is also possible – even probable – that Uber would pick up the legal costs of defending Levandowski if and when it comes to that. So long as he remains an employee.
And so he is stuck between a rock and a hard place: with Waymo and the US legal system on one side and Uber on the other, all trying to force him to reveal what he knows. If he confirms what they all suspect: that he stole documents from his former employer with the full intention of effectively selling them to its biggest competitor for a vast sum of money, then he is in serious trouble and facing a jail term.
Of the many questions going around Levandowski's head right now one will almost certainly be: if I do go to jail, how do I make sure I have a lot of money when I come out?
It is going to be a complex and constantly shifting situation as the case progresses. But right now, Levandowski's lawyers are pleading two things:
(a) permit him to intervene to protect his constitutional rights and attorney-client privilege, and (b) modify the [Order] to make clear that the Court is not ordering Uber to terminate Mr. Levandowski or otherwise take adverse employment action to coerce him to waive his Fifth Amendment rights and attorney-client privileges.
Their legal argument is that the court's order is unconstitutional since it requires Levandowski to "choose between his Fifth Amendment and attorney-client privileges and his employment".
We'll have to see what Judge Alsup makes of that. But let's be honest, it doesn't look good for Mr Levandowski. ®