Why Gizmodo Is Fighting To Keep The Courtroom Open During The Waymo-Uber Trial

Since Waymo sued Uber in February, alleging a massive theft of trade secrets related to its self-driving car technology, Gizmodo and our sister site Jalopnik have aggressively covered the case. Waymo's claims are damning -- the Google-incubated company says one of its leading engineers downloaded tens of thousands of confidential documents before quitting his job and then used those documents to develop autonomous vehicle systems at Uber.

Photo: AP

Waymo has fought assiduously for months to make sure its allegations against Uber remain in the public eye. Citing an arbitration clause in Waymo's contract with its former employee, Anthony Levandowski, the engineer at the center of the case, Uber tried to force this case into the shadows. Uber pressed for private arbitration all the way up to U.S. Court of Appeals for the Federal Circuit, which refused Uber's request.

The courts and Waymo's attorneys have agreed that this litigation belongs in public, not in a secretive arbitration. Waymo stands to benefit significantly from the public interest in this case -- even if by some miracle Waymo manages to lose this suit, every new revelation about Levandowski's behaviour is a ding to the reputation of one of Waymo's major competitors in the feverish race to bring autonomous vehicles to the market. Uber might not end up paying the $US1.86 ($2) billion in damages that Waymo is seeking, but its self-driving efforts will navigate under a cloud of suspicion.

That's why it's so shocking that Waymo is now asking U.S. District Court Judge William Alsup to seal the courtroom for significant portions of the trial, locking out the public and the press. Waymo's sudden pivot is a hypocritical disavowal of its previous arguments for transparency. We oppose it, and since Judge Alsup has invited media outlets to respond to Waymo's proposal, we're making our opposition known.

Today, Gizmodo Media Group filed a brief along with the New York Times, Wall Street Journal, Vox, BuzzFeed, Hearst, the Associated Press, Bloomberg, and other media outlets, asking Judge Alsup to keep the courtroom open to the press and the public. "There is no compelling reason for the free press to be shut out of this trial, and the court should not carve out one simply because America's largest tech companies favour secrecy over transparency," a BuzzFeed spokesperson said.

We believe this trial is highly newsworthy. If you buy into the Silicon Valley hype, we'll all be riding around in self-driving cars in a few years. Waymo and Uber expect the outcome of this case to determine which company will grow their nascent flock of robot cars into a multibillion dollar industry that revolutionizes transportation. Our reporters -- and you -- have a right to attend this trial. We're represented by Ballard Spahr, who are arguing that we have a First Amendment right to courtroom access and any closure should be narrowly tailored.

When asked to comment on our brief, a Waymo spokesperson provided the following statement: "Waymo welcomes a public trial and we will work with all parties to minimise closed courtroom time. We have asked to close the courtroom in only a limited set of circumstances to protect Waymo's trade secrets and confidential business information, as well as current and former employees' private employment information."

Waymo wants to kick us out during four types of testimony, according to its proposed order:

(1) Waymo's technical trade secrets and the specifics of how Uber uses them (only to the extent that the evidence/argument of use would reveal the trade secrets themselves);

(2) the terms of Google M&A deals that are unrelated to this case and Waymo's collaboration with Lyft;

(3) Waymo's non-public financial information, projections, and business plans; and

(4) confidential information of Waymo's employees and former employees.

Waymo contends that the 9th Circuit and the Supreme Court recognise that public access to the court can be limited to preserve trade secrets and that there is no constitutional right of public access in civil trials. Of course, we're arguing the opposite -- that a First Amendment right of access extends to civil trials as well as criminal.

Waymo says it has an obligation to make sure its trade secrets stay secret. Here's the way Waymo attorney Charles Verhoeven explains it: "These trade secrets and their secrecy are at the heart of the case. Requiring the parties to discuss the details of those trade secrets in open court would destroy the secrecy of Waymo's trade secrets, undermining their very status as trade secrets."

In other words, if Waymo screws up and lets its trade secrets become public, Waymo can't claim other autonomous vehicle companies are ripping them off anymore.

But here's the thing -- Waymo already made this exact mistake. In April, Waymo filed a redacted transcript of its deposition with Levandowski but forgot to redact the attached appendix, which allowed this reporter and others to discover details about six of Waymo's trade secrets.

Three of these are on Waymo's list of the nine secrets it plans to bring to trial. We already know quite a bit about what those secrets are. Anyone who looked at the public docket before Waymo realised its error and yanked the document knows what they are, too. These secrets aren't exactly "secret" anymore, and the court shouldn't be asked to pretend that they are.

To close the court, it's not enough for Waymo to wave the talisman of "trade secrets." Waymo needs to show that its claimed trade secrets qualify as such, and that it needs to disclose all of that information to the jury.

We're not sure yet which of Waymo's claimed secrets are actually trade secrets. That's what this trial is supposed to find out! Uber has argued that some of the design details Waymo claims are proprietary secrets are actually just standard features in the lidar systems autonomous vehicles use to navigate. (One of Google's employees questioned the value of the information Levandowski allegedly downloaded earlier in the investigation, although it's possible he's since revised his opinion.) If Uber's theory is borne out during trial, there's no reason to keep secret a detail that could be found in an engineering textbook. Waymo's claims are explosive -- and if it turns out that Waymo over-claimed on its secrets, the public ought to know that Waymo misled them.

Waymo has other options to protect its trade secrets, aside from closing the court. It could, for instance, display secrets on screens visible only to the jury or refer to them only by number, as Waymo is already in the habit of doing. As our attorneys have noted in our filing, other high-profile tech trials like Apple v. Samsung have dragged on for years without ever closing a courtroom. If Judge Alsup does close the court at any point, we're asking for redacted transcripts of what we miss to be promptly released.

In addition to its alleged trade secrets, Waymo also wants to withhold details about a laundry list of business deals from public scrutiny. Waymo has inked a deal with Lyft and negotiated for a partnership with Ford, releasing few details about either agreement. Waymo wants us outside the courtroom when these deals are discussed, as well as Google's negotiations with DeepMind, Waze, SCHAFT, Redwood Robotics, Apportable, JustSpotted, and Path.

Levandowski used a convoluted chain of shell companies and trusts to manage his autonomous truck startup, Otto. He established this method of obscuring his ownership in startups long before he left Google -- while still employed by Google, he launched the lidar company Tyto, eventually merging it into Otto before selling it off to Uber. Uber, in turn, relied on a series of shell companies to manage its acquisition of Otto's intellectual property. We know all of this because Waymo has ensured that Levandowski's and Uber's business dealings become part of the public record. It's only fair that Waymo's mergers and acquisitions face the light of day, too.

Finally, Waymo wants to keep secret information about the bonuses it awarded to Levandowski and other employees. Like Waymo's trade secrets themselves, some of this information has already been made public during the build-up to trial. For instance, we know that Levandowski collected a stunning $US120 ($153) million in bonuses from Waymo before he abruptly left the company. Waymo's bonuses were so generous that two staffers told Bloomberg the payments amounted to "fuck you money" and made employees so financially comfortable that they were more receptive to job offers from other companies.

But it's not just the bonus payments that Waymo wants to keep secret. The company also wants to hide the names of other employees it investigated in order to protect morale. We don't believe the court has an obligation to keep Waymo's employees happy -- and some of those who were subject to investigation by their employer might want to know they have been scrutinised.

Waymo understandably wants to keep its interactions with other businesses and its own employees private. But we don't believe that those desires outweigh our First Amendment interest. As Judge Alsup has told Waymo before, "The public's right to know what goes on in the federal courts is more important than the newspapers beating up on you in the press."

Waymo has claimed that it will provide Judge Alsup with "a specific and narrowly tailored list of evidence that should not be heard in open court" and promised that it "does not intend to cast a wide net." But Waymo's preliminary list of material that should be kept hidden from the public is too broad.

Our insistence on courtroom access isn't just because we're nosy (although we are!). We have a right to be there, and we hope we'll be able to keep you informed as the trial progresses.

Media Coalition's Motion to Intervene by Gawker.com on Scribd

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