Uber office. Photo credit: Linda Parton/Shutterstock.com

Lawyers for Uber Technologies Inc. and Google's automated car subsidiary, Waymo, were back in court Monday to discuss whether the ride-sharing company concealed evidence by failing to initially turn over an inflammatory letter from a former employee.

The letter from a lawyer for ex-Uber security analyst Richard Jacobs has been center stage in the dispute since an initial evidentiary hearing last Tuesday. The 37-page document remains under seal but portions read in court indicate that it alleges Uber knowingly stole trade secrets from competitor Waymo and used ephemeral messaging to delete evidence. The letter was sent to the company's deputy general counsel, Angela Padilla, in May 2017.

If it's decided that Uber's team did conceal evidence by failing to turn over the letter months ago, it could impact the way jurors eventually view the case. U.S. District Judge William Alsup of the Northern District of California is still considering how much Waymo will be allowed to focus on how Uber has handled evidence at trial.

At a hearing Monday before Alsup, Uber's lawyer, Arturo González of Morrison & Foerster, argued that Padilla wasn't one of the custodians whose emails Uber and Waymo agreed to search for documents related to the case, which is why it didn't surface until recently. He also stated that the letter fell out of the date parameters set in the parties' agreed upon search requirements.

Waymo lawyer Charles Verhoeven, a partner at Quinn Emanuel Urquhart & Sullivan, argued that regardless of the search requirements, Uber's team should have produced the document. He said that the letter and Jacobs' resignation email were both sent before the search requirements were decided upon in July, and that before that agreement both parties' shared whatever documents they believed were relevant to the case.

“I believe attorneys have a duty if they have incriminating evidence not to hide it,” Verhoeven said. “Here this isn't even a close call.”

Because the agreement only applied to online, paperless documents, Waymo also argued that if Jacobs' letter had been printed out as a hard copy, the mismatched time frame and search terms were an irrelevant excuse. Uber's team was expected to turn over any physical, noncomputerized evidence related to the case. And Padilla testified last week that she “handed” Jacobs' letter off to Uber's compliance team, wording that both Alsup and Waymo said implied she'd printed it out.

Padilla said one reason she didn't personally submit Jacobs' letter to lawyers involved in the Waymo case was because she believed the search terms would pick the document up on Uber's server.

“But if it only was on the server and never reduced to hard copy then it seems that [Uber's] arguments may have had some weight,” Alsup said. The judge also said he'd need to see how Waymo and Uber exchanged documents before the official search terms were agreed upon.

That's a task he's set for the case's special master, John Cooper, who will meet with both sides and write a report by 12 p.m. Dec. 15 on how documents were initially exchanged and whether Uber's lawyers should have produced Jacobs' letter.

Based on Cooper's report, Alsup will determine what to disclose to the jury about Uber's use of ephemeral communication systems, non-attributable devices and its potential obstruction of evidence.

“If both sides were playing fair and square and there's none of these issues then you get to decide purely on the merits — did they [Uber] steal trade secrets?” Alsup said. “But this is not the usual case. There's been a lot of destruction of evidence. It's been a lot, in my experience, so I'm carefully working my way through every one of these problems to see how much the jury should be told.”

MoFo's González also disclosed to Alsup that he'd Jacobs' resignation letter, which holds allegations similar to the letter to Padilla, forwarded to him via email by colleague Charles Duross in April. Duross, who heads Morrison & Foerster's global anti-corruption practice in D.C., was contacted by Uber after Jacobs' resignation to investigate his allegations alongside Wilmer Cutler Pickering Hale and Dorr. Uber later decided just to use Wilmer, but Duross was privy to initial information.

González said he doesn't remember receiving the email, didn't open it and never discussed its contents with Duross.

“I didn't know anything about it,” he said. “No one on my team did, but I wanted you to know that these emails are in our system.”

The special master was set to meet with both sides Monday afternoon. Alsup gave Waymo until Jan. 12 to file new evidence and to explain how it's related to Uber's alleged spoliation and concealments. Uber has until Jan. 19 to respond.

In the meantime, Uber's team will be able to get answers around Google's usage of ephemeral messaging from former Waymo employees now at Uber in an attempt to show that disappearing messaging is standard practice in tech. González said employees had refused to answer his team's questions for fear of legal action from Google or Waymo.

“I can't stand it when Waymo or the other side wants it both ways,” Alsup said. So if Waymo extensively used disappearing messages, the judge said, the jury may hear about that, too.