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In a dramatic last-minute turn of events, Uber has been cited for withholding evidence in a lawsuit brought by competitor Alphabet.
Last week, the U.S. attorney of the Northern District of California notified the judge presiding over the case, Judge William Alsup, that there was some evidence that Uber hadn’t disclosed either to the court or to Alphabet’s self-driving arm, Waymo. Alsup referred the case to the U.S. attorney’s office in May 2017.
Alphabet is suing Uber for allegedly misappropriating self-driving trade secrets.
Due to the new revelations, Alphabet has been granted another delay in its trial against Uber. Just days before the companies are expected to begin the jury selection process, Alsup ordered that Alphabet be given more time to delve into new evidence that Uber provided last week.
In response to the new evidence, Alsup ordered Uber’s deputy general counsel Angela Padilla and Uber’s former global security officer Richard Jacobs to testify during a pre-trial hearing on Tuesday; that hearing is currently in session. Alsup has yet to set a new trial date.
According to new filings, Jacobs’s attorney wrote a letter to Padilla that Waymo argues should have been disclosed as part of the discovery process. Uber turned over a highly redacted version of that letter just before midnight on Nov. 24. Jury selection was set to begin on Dec. 4.
“Uber has so far not disputed that the Jacobs letter and documents and information regarding Uber’s conduct described therein was responsive to Waymo’s discovery requests or Court Orders,” the filing reads.
Alsup conducted an evidentiary hearing on the letter and called Jacobs to the stand. There is a possibility that the judge can decide not to proceed with the trial delay if enough information is revealed today.
This delay is just a small wrinkle in the ongoing legal saga between the companies. The larger issue for Uber is that this could give credence to Waymo’s argument that members of the jury be notified that Uber destroyed or did not disclose relevant evidence as the company was required to by the court.
There’s little public about Jacobs’s letter, since it’s under seal. But Waymo’s questioning reveals a bit more about what it may have entailed. Jacobs’s attorney sent a 37-page document to Padilla which Jacobs said he reviewed, according to the San Francisco Chronicle.
Waymo quotes Jacobs' atty letter: “Jacobs became aware that Uber thru Clark & Henley, had a sophisticated strategy to conceal, cover up or destroy docs w intent to impede govt investigations."
— Carolyn Said (@CSaid) November 28, 2017
In his testimony, Jacobs describes a unit called Marketplace Analytics within Uber that worked to obtain competitive intelligence while actively covering its tracks using ephemeral messaging technology. He further testified that while he was at Uber, some staffers from that department went to the company’s self-driving headquarters in Pittsburgh to educate the team on how to use these encrypted messaging services.
Jacobs said these systems were used within UBER to avoid leaving a paper trail that could come back to hurt the company in the event of a lawsuit.
This is just one in a series of looming questions about some of the practices of Uber’s security team. Last week, the company revealed that its former chief security officer Joe Sullivan and his team failed to disclose a 2016 hack that affected 57 million people. Instead, the company paid the hackers $100,000 to destroy the data. Sullivan and his deputy, Craig Clark, were fired.
In his testimony, Jacobs references Sullivan and Clark, as well as the company’s head of threat operations, Matt Henley, and a current employee named Ed Russo. Russo was also asked to appear in front of the judge on Tuesday. Jacobs said Sullivan and Clark advocated for the use of ephemeral technology.
However, it’s still unclear how much of this is true. In fact, in his testimony, Jacobs walked back some of what his attorney wrote in the letter. Judge Alsup has now ordered Uber to provide all documents related to ephemeral communication services — including Snapchat, Wickr and Telegram — dating back to December 2015.
Uber has yet to comment on Jacobs’s testimony. But Russo, who took the stand today, also denied much of Jacobs’s testimony and some of what the letter said.
That said, Jacobs has a muddled relationship with his former employer. After he was terminated, his attorney made allegations about Uber’s marketplace analytics team that ultimately ended with the company settling with Jacobs for $4.5 million, according to his testimony. Now, he says he is helping the ride-hail player with an internal investigation as a consultant.
The trial, originally set for the beginning of October, was pushed to Dec. 4 after Uber turned over a due diligence document it commissioned when acquiring self-driving trucking startup Otto.
“Given Uber’s consistent failures to meet its discovery obligations in this case, and apparent misrepresentations to this Court, Waymo has no choice but to seek a continuance of the trial date to enable Waymo to take additional discovery on this new information that is indisputably relevant to Waymo’s trade secret misappropriation claims,” the filing continues.
Padilla will testify in front of the judge tomorrow.
This article originally appeared on Recode.net.
