Uber’s Anthony Levandowski Invokes Fifth Amendment Rights in Waymo Suit

https://www.nytimes.com/2017/03/30/technology/uber-waymo-levandowski.html?_r=0

by dshore • 9 years ago

374 169 9 years ago

nytimes.com

ganfortran• 9 years ago

What does this imply?

drwl• 9 years ago

He invoked the fifth amendment

tyingq4• 9 years ago

Which is interesting because you don't invoke the fifth in a civil case unless "the answer might tend to subject to criminal responsibility him who gives it"

Doesn't imply guilt, but it shows that Uber recognizes the alleged conduct could be criminal versus just a tort.

badnew• 9 years ago

I don't think exercising your rights should imply anything

wavefunction• 9 years ago

That asks the rest of us to abandon inference, which I'm not inclined towards.

DannyBee8• 9 years ago

It does in the civil context, but not in the criminal context, which seems precisely right.

In the criminal context, the government is trying to punish you with jail. Actual deprivation of liberty. In such cases, we require they make be able to make their case without you saying you did it.

In the civil context, you can avoid saying you did it if it would cause you to possibly be convicted of a crime, but unlike the above, there is no possibility of deprivation of liberty. As such, if you do try to avoid saying you did it, people are allowed to use it to make their case that you did it.

ams6110• 9 years ago

Practically, it implies that he doesn't want to talk about something that is incriminating to himself.

Legally it doesn't imply anything. Innocent unless proven guilty.

SomeStupidPoint• 9 years ago

I believe that's only true in criminal matters against you, not if you're called as a witness as part of a civil suit.

DannyBee8• 9 years ago

"Legally it doesn't imply anything. Innocent unless proven guilty. " This is wrong in the civil context.

dehugger• 9 years ago

My impression of invoking the fifth amendment has always been "If I say something I might go to jail, so I'm going to exercise my right to say nothing."

Personally, I view it as more or less an admission of guilt, but I'm sure there are a host of legal reasons to do this (besides actually being guilty) that I am unaware of.

akerl_2• 9 years ago

That's an unfortunate but accurate description of the average person's understanding of the 5th amendment. The reality is more complex: it's pretty easy for any statement, even one which is 100% accurate and made from a position of actual innocence, to contribute to a guilty verdict.

An interesting video on the topic: https://www.youtube.com/watch?v=i8z7NC5sgik

ryanSrich• 9 years ago

Certain truthful arguments just naturally come off as lies. I could see invoking the 5th when you feel like you'll be misinterpreted no matter what.

cle• 9 years ago

You'd also invoke the fifth if your testimony could appear to be self-incriminating.

The legal system is still run by humans, the normal (very large) margin of error exists.

aanm1988• 9 years ago

Say you get asked about your wherabouts, but you were cheating on your spouse at the time. Admitting that in court is a big problem for you, but doesn't really show you are guilty of anything but being a shitty husband/wife.

Wouldn't that be a reasonable time to do this?

benchaney• 9 years ago

This is of course, complete nonsense. There are a huge number of reasons that an factually accurate statement made by a factually innocent person could harm their case.

MegaButts• 9 years ago

It's funny. I regularly watch crime documentaries and am a big supporter of my rights (I am a US citizen) and detest that people are assumed to be guilty and that is largely how our legal system works. I like to believe I am decent at filtering out useful knowledge from the media.

But my first thought when I saw this headline was "oh fuck - that's bad"

Emotions are so good at getting in the way of critical thinking. And nowadays I think most people admit that they read headlines first, then comments, and then maybe (but probably not) the story. I wonder how horribly skewed my worldview is because of how I digest information.

jackmodern• 9 years ago

You're completely wrong, lawyers and interrogators will twist your words against you to make themselves more successful regardless of guilt. The YouTube video posted above is a good example of the how, but there are many more beyond that.

sokoloff2• 9 years ago

That he has a Constitutionally provided right that he is choosing to exercise. It is improper to draw any firm conclusion beyond that, IMO.

SilasX• 9 years ago

Legal vs rational evidence. To borrow the excellent exchange from A Man for All Seasons:

More: If, therefore, you wish to construe what my silence betokened, you must construe that I consented, not that I denied.

Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?

More: The world must construe according to its wits; this court must construe according to the law.

https://en.wikiquote.org/wiki/A_Man_for_All_Seasons_(1966_fi...

IgorPartola• 9 years ago

I am not a lawyer, but basically it means he is innocent until proven otherwise and he has the right to not testify in a way that might incriminate himself and he is exercising it.

There is the sort of popular view that if you do this, it must mean you are guilty and by testifying you would actually be proven so. The problem with that is that you might actually be innocent but not be able to give evidence in a way that does not make you look guilty.

Any lawyers here willing to elaborate on how to better view this from a social point of view?

valkea• 9 years ago

Not a lawyer. Levandowski is trying to avoid turning over (some) documents in the discovery process of the civil lawsuit Waymo is filing against Uber. They are doing this by claiming it could incriminate him and open him up to the possibility of criminal charges.

Will this actually work? Maybe. The fifth amendment is more complex than it might at first seem. One thing that's for sure is that if he is found to be withholding any documents that are relevant to the civil suit, but couldn't realistically incriminate him, this could backfire spectacularly. Hence the statement from his lawyers:

One of Mr. Levandowski’s lawyers said the Uber executive’s position on invoking the Fifth Amendment may change as they examine the case.

lern_too_spel3• 9 years ago

Saying anything here can only hurt him, regardless of whether he is innocent. Waymo's lawyers can use his evasion against Uber in the ongoing civil cases, but the government can't use it against him if the government later decides to bring a criminal suit. He's basically throwing Uber under the self-driving bus to save his own skin.

tgjsrkghruksd9• 9 years ago

It's not a question of innocent or guilt. You're talking criminal terminology. In the case at bar it's a question of liable or not. If you're sued for a bazillion dollars and you didn't do anything wrong, then saying something that would help your case could save you a bazillion dollars.

On the other hand, if you did do everything you are accused of, then you're probably right, it can only hurt you.

titanomachy2• 9 years ago

This is one of the few posts that actually answers the question.

Invoking the fifth makes it more likely that he (and Uber) will lose the present civil case, which would be very bad for Uber and pretty bad for him. But it could protect him from future criminal prosecution. So I guess he thinks it's pretty likely that he would be found guilty.

tgjsrkghruksd9• 9 years ago

A lot of people here with their TV law degrees are giving you gibberish answers that pleading the 5th doesn't imply anything. They are wrong.

The fifth amendment is only available to avoid testimony that could potentially implicate oneself in a crime. Proper exercise of 5th amendment rights cannot be used against a person in a criminal prosecution.

This isn't a criminal case (yet). It's a very high-stakes civil case. Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. In other words, it makes you look very bad, and the finder of fact is free to assume the worst.

Not applicable here yet, but in rare cases prosecutors will also get around the 5th is by offering immunity, in which case you may be ordered to testify, and your testimony cannot then be used as evidence against you in a criminal trial; refusal to testify under immunity can result in punishment for civil or criminal contempt. You cannot invoke the 5th to protect yourself from civil liability, or to avoid implicating another person in a crime.

There's all sorts of things that "pleading the fifth" doesn't protect you from. For instance, public employees are often required by law to cooperate with all public investigations, including criminal investigations. Pleading the fifth as a public employee in an public investigation can result in mandatory termination, even if there is no evidence of wrongdoing.

DannyBee8• 9 years ago

". Pleading the fifth may result in an adverse inference jury instruction, or an adverse inference determination by a judge in a nonjury trial. "

Yes, but they lose nothing as a strategy by having him do it unless the inference the judge threatens is so negative, and then, as they said, "his view on whether to claim the fifth may change as the case progresses".

....

Now, certainly, most companies are ethical enough not to try such a strategy, but ...

tajen• 9 years ago

How does this event of pleading the fifth compare with Bill Gates' interrogation under the monopoly investigation in 1998? I've heard Gates' insistent way of misunderstanding every single question was something that would piss of judges rather than hide your defense (so much that the judge published a best of during the trial): Do pleading the fifth and playing dumb both harm your defense in the same way?

hluska• 9 years ago

Your answer would be much stronger if you dropped your tone by a magnitude and edited out the insults. Your first paragraph is particularly difficult to read.

doubleshadow• 9 years ago

In the transcript of a private hearing before Judge William Alsup in United States District Court in San Francisco, Mr. Levandowski’s lawyers said he was invoking his Fifth Amendment right to avoid incrimination in turning over documents relevant to the case. Uber’s lawyers said they have made clear to Mr. Levandowski that he needs to release any documents relevant to the case as part of discovery.

Does Levandowski also have his own lawyers? Says here that his lawyers said he was invoking his 5th amendment, while Uber lawyers said he needs to turn over all documents

MichaelGG• 9 years ago

A guy with a high net worth, that may have taken secrets from Google then sold them to Uber? It'd be very surprising if he didn't have his own legal team.

One would imagine part of Uber's tactic would have been to make sure that they got representations on paper that everything was safe, that no secrets were being passed. If I was buying contraband, I'd want to make sure the invoices I officially paid for looked legit...

M_Grey• 9 years ago

Of course every action you take to hide your tracks potentially leaves detectable tracks of their own. At some point you trade the ability to claim a lack of premeditation if you've clearly and extensively premeditated.

Lazare2• 9 years ago

Does Levandowski also have his own lawyers?

He damn well should. It's ALWAYS important to keep in mind that your employer's lawyers work for the company, not you, and will be angling for the outcome which is best for the company, not you.

jedmeyers2• 9 years ago

By the way Judge William Alsup is the one who presided over Oracle v. Google and knows how to code.

ksherlock• 9 years ago

That's an understatement. Haskell is his middle name.

bradleyjg3• 9 years ago

Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case, in a civil case a negative inference can be drawn.

http://www.litigationandtrial.com/2013/04/articles/attorney/...

joshuahaglund• 9 years ago

seems that depends on the state https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

tyingq4• 9 years ago

Jurisdiction appears to be Federal for this case.

bradleyjg3• 9 years ago

According to that link federal courts defer to state law rules on the issue for causes of action that sound in state law but not for those that are grounded in federal law. Google's complaint (https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k...) has two CA claims and four federal ones. The main trade secret claims are one of each.

Again, according to that link, if evidence is relevant to both federal and state claims, the federal rule controls. So in this case I expect the federal negative inference rule to prevail.

protomyth3• 9 years ago

That being said, if your lawyer says invoke your 5th then you do it or be prepared to hire a different lawyer. Your innocence is not a factor.

[edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually]

pmh• 9 years ago

[edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually]

I didn't see anything in the article suggesting that, just that Uber's lawyers said they wanted him to release the information

[edited for accuracy given child comment, thanks late2part]

BearGoesChirp• 9 years ago

Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case

This feels about as productive as telling someone to not think of an elephant. Regardless of what the jury has been told, they will still see a refusal to answer a question, and they will take that into account. The only way this would be possible if the jury never heard the question nor the invocation of the fifth.

bradleyjg3• 9 years ago

The only way this would be possible if the jury never heard the question nor the invocation of the fifth.

That's almost always what happens. The big exception is if the defendant opts for a bench trial.

minimaxir2• 9 years ago

One of the authors of this piece posted an amusing court transcript on Twitter: https://twitter.com/mikeisaac/status/847568150916878336

jacquesm3• 9 years ago

Nothing like having a really good lawyer. /s

ladybro2• 9 years ago

Mike's twitter feed is literally the best I've come across on the platform. A delightful combination of tech news, snark, and existential angst.

joshdickson• 9 years ago

I don't know if I'd go that far.

icpmacdo• 9 years ago

I am very tired of snark being a virtue of tech journalists although I somewhat agree and think Mike is worth following

minimaxir2• 9 years ago

"i have received more new twitter followers from a happenstance endorsement from 'ladybro' on hacker news than any other moment ever"

https://twitter.com/mikeisaac/status/847681320310329347

bdrool• 9 years ago

Oh my god:

Lawyer: <complains about proceedings appearing in the news>

Judge: "Okay. The public will read what you just said."

srtjstjsj2• 9 years ago

Reading that transcript, I'm surprised a judge that obviously biased and unprofessional would get through the case and not be overturned on appeal.

inlined2• 9 years ago

Since I'm not a lawyer, does anyone have any reference to the 5th amendment ever being (successfully) used to avoid discovery? I thought that only applied to testimony.

tgjsrkghruksd9• 9 years ago

It's often argued that disclosure of the knowledge of the existence and location of the subject of a discovery demand is itself testimonial. Sometimes, a court will partly agree and require accommodations to discovery, such as production through the deponent's attorney and precluding any disclosure of where the item or information came from.

Perhaps a more likely outcome is sanctions, such as an adverse inference, costs, or even a directed verdict.

dzhiurgis• 9 years ago

While I do respect the right to protect your IP, Uber is 10 times smaller company than Google. The lawsuit is about technology that can potentially save thousands of lives and probably will be made open source in few years anyway.

jedmeyers2• 9 years ago

The fact that you can steal the technology without any consequences will drastically slow down the development of such technology, since noone would be willing to invest a lot of money into something that can be easily stolen. And will potentially cost more lives in the long term.

WillyOnWheels2• 9 years ago

And will potentially cost more lives in the long term.

The now unemployable portion of society involved in transportation that will be replaced by self driving robots are going to potentially cost more lives in the long term.

tehlike• 9 years ago

well - the other side of the coin, uber uses this to dominate and monopolize the market, with an unfair advantage it got over other players.

apsec1122• 9 years ago

For reference, here's a handy flowchart on Fifth Amendment law by lawyer Nathan Burney: http://lawcomic.net/guide/?p=2897

elastic_church2• 9 years ago

so long... thats not handy at all, on the go at least

but I wish that lawyers could produce these flow charts when they say "it depends"

Dru89• 9 years ago

Sorry, is it not handy because it's inaccurate? Or simply because it's so lengthy?

srtjstjsj2• 9 years ago

That's the gag (as you can see in the punchline at the bottom): the specifics of the law is absurd and deeply hostile to the intent of the Constitution.

ckirksey• 9 years ago

Nice! That was super helpful. I wish the author would put arrows on his flow chart though. Clearly not an engineer :)

hyperbovine• 9 years ago

Proceeding from the bottom up makes for interesting reading.

efuquen• 9 years ago

It's crazy how the section about dealing with the police is nearly double the size of the rest of the chart.

jakebasile• 9 years ago

This comic/guide is wonderful. I particularly like the summary on trials by jury[1]. It's not great, but it's much better than the other legal systems we've had.

edit: I also like this sequence explaining why thoughts are not crimes. [2]

[1] http://lawcomic.net/guide/?p=337

[2] http://lawcomic.net/guide/?p=380

sleepychu• 9 years ago

[1] links to the last page, you want: http://lawcomic.net/guide/?p=299

JumpCrisscross• 9 years ago

How are Levandowski or Uber invoking the Fifth Amendment, then? Levandowski is not being asked by the government since this is a civl suit (unless the court counts as the government, per the flowchart?). And Uber is a corporation.

bb611• 9 years ago

He's said he won't provide documents for the trial, at which point Google's lawyers would ask for a judge's order compelling him to do so. His lawyer says he won't provide them in that case either. They skipped the step of waiting for the actual order.

PhantomGremlin2• 9 years ago

Nobody yet has mentioned the big picture. To me the big queston is: How the fuck do Levandowski and Kalanick still have jobs at Uber?

If I were on the Uber Board of Directors, I would be pushing for armed security to escort those two clowns out the door. Immediately. As in today. And I'd give them a cardboard box with all their personal shit in it for them to carry out with them.

At what point in time does a company Director become complicit in theft of IP? What did the Uber board know, and when did they know it?

I predict that, any day now, there will be mass scurrying of rats abandoning a sinking ship.

All IMO of course. As they say on the TV show Cops (more or less): all suspects are innocent until proven guilty in a court of law.

apsec1122• 9 years ago

I think Kalanick has a majority of Uber's voting shares, so neither the board nor anyone else can force him to leave. Likewise, if Kalanick wants Levandowski to stay, he stays.

PhantomGremlin2• 9 years ago

I don't think that works if there is truly criminal culpability here. If you're on the Board of Directors you can fire the clown or you can let him vote you off the board. You don't get to say: I can't do anything because he's the majority shareholder.

titanomachy2• 9 years ago

Uber's position is that Google's claims are baseless and Levandowski did not use stolen IP to build his autonomous vehicle. Firing him would would severely undermine those claims.

And yeah, it seems like that's probably not true, but it's the position they've decided to take. We don't know for sure that it's just Kalanick pushing that story; the board could be complicit.

tgjsrkghruksd9• 9 years ago

I'd probably have security go through their "personal shit" especially any storage media too, given the background.

tannhauser23• 9 years ago

Because if you fire them they will turn against you. They are your employees, and their wrongdoong will be attributed to you. They might very well agree to testify against you, civilly or criminally, in exchange for the suit being dropped. But if you keep them on the payroll (and often pay their lawyers) you can create a common front and limit their ability to 'go rogue' and harm you.

The reckoning can come after the suit's settled.

DannyBee8• 9 years ago

"Nobody yet has mentioned the big picture. To me the big queston is: How the fuck do Levandowski and Kalanick still have jobs at Uber? "

It would damage their claim that nothing bad happened. You also assume this isn't a deliberate strategy on the part of the lawyers:

See if they can avoid discovery by having him claim the fifth, while not firing him/etc for doing it.

You can hold the fact that someone claimed the fifth against them in a civil lawsuit. Uber could just be betting that the consequences of this strategy are better than the documents that would get released.

eddieplan9• 9 years ago

You need to read up on Levandowski a little bit. To quote a Bloomberg article:

“Whatever Google may say about him stealing lidar trade secrets, he was the lidar team at Google,” says someone who worked at the company’s driverless car program. “This is like the Swiss patent office suing Einstein for inventing the theory of relativity while he worked there.”
Google’s self-driving car project began the following year with ... hardware supplied by Anthony’s Robots. Like 510 Systems, Anthony’s Robots was operated as an independent company. The arrangement—whereby Levandowski was at once a founding member of the Google self-driving car team and a vendor who was also selling technology to other companies—was well-known to Google executives, though it was never publicly disclosed. “Anthony is a rogue force of nature,” says a former Google self-driving car executive. “Each phase of his Google career he had a separate company doing exactly the same work.” According to two former Google employees, founders Page and Sergey Brin tolerated Levandowski’s freelancing because they saw it as the fastest way to make progress. Google’s car team embraced Levandowski’s nature, too. The attitude, says a former colleague, was “he’s an asshole, but he’s our asshole.”

https://www.bloomberg.com/news/features/2017-03-16/fury-road...

objclxt• 9 years ago

“This is like the Swiss patent office suing Einstein for inventing the theory of relativity while he worked there.” says someone who worked at the company’s driverless car program

Well, the Swiss patent office wasn't paying Einstein to come up with the theory of relativity, whereas I'm pretty sure Google were paying for LIDAR innovations. I hope that anonymous source's code has fewer leaps of logic than that analogy...

notatoad• 9 years ago

Per that article, Google bought both 510 Systems and Anthony's Robots. So regardless of if he invented the IP in question during his work for google or for his own companies, it's owned by Google. Whatever sketchy subcontractor arragement was in place all seems to be moot.

michaelt• 9 years ago

  “Anthony is a rogue force of nature,” says a former
  Google self-driving car executive. “Each phase of his
  Google career he had a separate company doing exactly
  the same work.”

Shit like this is why so many companies insist on blanket IP assignment clauses in developers' contracts.

ge96• 9 years ago

Plead the fifth cause you can't plead the first!

- RATM

I have no idea what's happening. I support autonomous vehicles and not having to walk 6 miles home after work if there was greater public transportation that operated at night.

Steeeve• 9 years ago

Anthony Levandowski isn't just a schlub caught up in a big lawsuit. He's the guy who's self-funded startup got bought for $680M. He's facing a lawsuit from Google.

Did anyone have any sort of impression that he was going to cooperate out of the gate? There's a better chance that he drops his pants and asks for a spanking.

Yes, the 5th Ammendment can be used as negative inference in a civil suit. Whatever. This isn't testimony. This is discovery. It's years before this gets in front of a jury and it won't matter one iota when all is said and done.

This is a marathon of a fight. Levandowski just signaled that he's not an idiot.

puranjay• 9 years ago

The 'Google employee' headlines gave a lot of people the wrong impression - that he was just some random Googler caught up in a big mess between two tech behemoths.

beedogs• 9 years ago

This is the end for Uber. And it couldn't happen to a more deserving company.

Animats2• 9 years ago

This is going to get complicated, and probably nasty. The interests of Uber and Levandowski no longer align. That's not unusual, although it usually comes up more in criminal cases.

Amusingly, Google's employment contract, which specifies binding arbitration for employee-employer disputes, may have backfired on Google. Google did take Levandowski to arbitration. But Google can't bind Uber via their employee arbitration contract. So now Google is suing Uber, and Uber and Levandowski are arguing that Google can't sue because it insisted on arbitration in the employment contract.

zeven7• 9 years ago

Google did take Levandowski to arbitration.

What happened in arbitration?

Animats2• 9 years ago

Apparently nobody is saying. Arbitration is confidential.

scott_karana• 9 years ago

Amusingly, Google's employment contract, which specifies binding arbitration for employee-employer disputes

Sorry, does this also apply to ex-employees? Or did they go to arbitration _before_ he quit, implying that they had an inkling of the theft even then?...

fforflo2• 9 years ago

A few days ago there was an article posted on HN (I think it was from Medium ) that provided a really long and detailed timeline of the events. How and when Kalanick and Levandowski met, when was the acquisition confirmed and so on. Anyone has it please?

obmelvin2• 9 years ago

I believe this was it - https://danielcompton.net/2017/03/14/uber-bombshell

fforflo2• 9 years ago

Yes. Thanks a lot.

DannyBee8• 9 years ago

The number of armchair lawyers here who believe that they understand the fifth amendment is impressive.

You can hold the fifth amendment against people in civil trials in federal court. See, e.g., 425 US 308, 318 "Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: "

There is a well-established test for when negative inferences may be drawn.

Note also that federal courts can force the witness to take the stand and invoke the privilege in front of a civil jury.

Even further, federal courts may allow an adverse inference against a company from an employee’s or former employee’s invocation of the Fifth Amendment.

Most courts follow LiButti v. United States on this matter.

Uber’s Anthony Levandowski Invokes Fifth Amendment Rights in Waymo Suit

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