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The judge in the Alphabet/Uber lawsuit rejects a Fifth Amendment claim to keep key details private

This is a complicated case.

Anthony Levandowski, Otto co-founder and VP of engineering at Uber, speaks at the launch of the pilot model of the Uber self-driving car at the Uber Advanced Technologies Center on Sept. 13, 2016, in Pittsburgh, Pa.
Angelo Merendino / AFP / Getty Images

The presiding judge in Alphabet’s lawsuit against Uber for allegedly stealing autonomous-car trade secrets has said that Uber must disclose certain basic details of a due diligence report conducted as part of Uber’s August 2016 acquisition of self-driving tech startup Otto.

The report could play an important role in Alphabet’s allegations that the ride-hail company is using Alphabet’s proprietary self-driving technology.

The Google parent company claims that Uber’s self-driving head, Anthony Levandowski, stole 14,000 files from Alphabet that included designs for its lidar — Light Detection and Ranging — technology. Lidar is key to most self-driving systems.

Uber counters that its technology is unique and distinct from that used in Alphabet’s self-driving efforts, which exist under the umbrella of an Alphabet subsidiary, Waymo.

A due diligence report is conducted by a third party as part of an acquisition. It looks at finances, legal issues and other details of a company that is being acquired.

Alphabet has claimed that the due diligence report will prove that Levandowski — who worked on self-driving technology for Alphabet before leaving and co-founding self-driving trucking company Otto — stole the files. There’s a question of whether the report included a review of any of the allegedly stolen documents. And if Alphabet knew who compiled the report, the company could subpoena them.

Last week, Levandowski filed a motion requesting that details of the due diligence report — including the identity of the party that conducted the report — not be disclosed in Alphabet’s suit.

Levandowski is not named as a party in the lawsuit, and is retaining his own attorneys, who filed the motion on his behalf. Uber did not sign on to the motion.

Judge William Alsup ordered that the report be included in the “privilege log” — a list of documents that a party in a lawsuit argues should not be opened up to the court because they contain privileged information — that Uber must compile. The judge is not at this time requiring that the report be opened up to the court, but is ordering it to be included in that list without basic details redacted.

“There will be time enough to argue soon over whether the due diligence report itself must be produced,” Alsup’s order said. “But for now that report must be put on a privilege log in the conventional way — without any of the redactions requested by counsel for Levandowski.”

Levandowski’s attorneys argued that revealing details of the report would violate his Fifth Amendment right against self-incrimination because the document details “might furnish a link in a chain of possible incrimination.”

“At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege,” Alsup’s order said. “That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed.”

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