Uber threatens to fire Levandowski if he doesn’t comply with court order

Can Uber engineer be forced to choose between the Fifth Amendment and his job?

Joe Mullin

Uber has threatened to fire its top self-driving car engineer if he doesn't comply with a court order and hand over documents in the Waymo v. Uber trade secrets lawsuit.
The lawsuit, filed by Google self-driving car spinoff Waymo in February, claims that Uber engineer Anthony Levandowski illegally downloaded more than 14,000 files when he was working on self-driving cars at Google. Levandowski quit Google without notice in January, then founded a self-driving car startup called Otto, which was sold to Uber within a few months for $680 million. Levandowski, who is not a defendant in the case, pled the Fifth Amendment and answered almost no questions when he was deposed.

Last week, US District Judge William Alsup issued an order barring Levandowski from any work on lidar, the key technology behind self-driving cars. The order also calls on Uber to do a thorough investigation, listing every person "who has seen or heard any part of the downloaded materials;" interview everyone who has communicated with Levandowski about lidar; and submit a log of "all oral and written communications" in which Levandowski mentions lidar. In the order, Alsup points out that in his view, Uber could also "threaten Levandowski with termination for noncompliance," without violating Levandowski's Fifth Amendment privilege.
Levandowski's lawyers are still fighting against that, and they asked the judge to reconsider parts of that order in a motion filed yesterday. In those papers, Levandowski reveals that Uber has, indeed, threatened him with termination, and his team includes the letter his employer sent him.

Pride and privilege

"Uber has now executed on the court's order," Levandowski's attorneys write. On May 16, Uber sent Levandowski a letter demanding that he provide any relevant information, even if it's located on personal devices. Levandowski must waive any Fifth Amendment protection, and his lawyers must cooperate as well regardless of attorney-client privilege. Uber's letter to Levandowski, reproduced in part in yesterday's motion, reads as follows:

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. Also, the requirement that your lawyers cooperate with us and turn over information that may be in their possession may invade your attorney-client privilege. 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.” (Order at 23, no. 9.) Thus, we must demand that you set these privileges aside and confirm that you will promptly comply with the Court’s Order.
Finally, as you know, your employment at Uber is on an at-will basis. See A. Levandowski Employment Agreement, Aug. 17, 2016 ¶ 5(a) (“August 17, 2016 Employment Agreement”). As a condition of your employment at Uber, you must comply with all of the requirements set forth in this letter. If you do not agree to comply with all of the requirements set forth herein, or if you fail to comply in a material manner, then Uber will take adverse employment action against you, which may include termination of your employment and such termination would be for Cause.

Levandowski's lawyers have asked to intervene in the case to protect his Fifth Amendment and attorney-client privilege "and prevent the Court from unconstitutionally forcing him to choose between his privileges and continued employment."
Attorneys for Levandowski argue that Supreme Court precedent prevents him being forced to make a choice between staying employed and giving self-incriminating testimony. They cite Garrity v. New Jersey, a 1967 case in which the high court found that a group of police officers were improperly compelled to testify by being threatened with removal from their jobs.
The argument is unlikely to change Judge Alsup's mind on the issue. Uber has already tried this tack, citing a 9th Circuit case to argue that "individuals cannot be forced to waive their Fifth Amendment rights against self-incrimination by threats that their employment will be terminated." Alsup called that suggestion "baseless." Uber is a private employer that is being compelled "to do whatever it can to ensure that its employees return 14,000-plus pilfered files to their rightful owner." If Uber threatened to terminate Levandowski, the engineer would "remain free to forfeit his private employment to present his Fifth Amendment privilege," Alsup wrote.