(Bloomberg) -- A judge said he's inclined to slap an order on Uber Technologies Inc. that may impede its self-driving car program after being told its director won't testify because he faces possible criminal action for allegedly stealing Alphabet Inc.'s trade secrets.
A lawyer for Anthony Levandowski, who left Alphabet's Waymo unit last year and is now head of Uber's driverless car project, told a San Francisco federal judge Wednesday the engineer would be asserting his rights under the Constitution's Fifth Amendment, protecting a person from incriminating himself, according to a transcript of the closed-door court hearing.
If Levandowski doesn't help defend the ride-hailing company against a lawsuit filed by Waymo, Uber could be at a disadvantage in a case that may decide who controls key technology in the race to market autonomous vehicles. It's a business that both companies believe will be worth hundreds of billions or even trillions of dollars a year.
Levandowski's lawyer told the judge that the engineer can't be forced to disclose the files Waymo claims he stole before he resigned. In response, U.S. District Judge William Alsup warned the attorney that unless Levandowski is willing to deny wrongdoing, there's a โgood chanceโ Waymo's request for a court order blocking Uber's use of its proprietary information will be granted. Waymo has demonstrated a โrecord" of theft, Alsup said.
โFifth Amendment'
"If you think for a moment that I'm going to stay my hand, because your guy is taking the Fifth Amendment, and not issue a preliminary injunction to shut down what happened here, you're wrong," Alsup said.
The judge later backed off his threat when an Uber lawyer said the company can prove, without Levandowski's help, that it didn't use any information taken from Waymo. A hearing on the injunction request is set for May 3.
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Levandowski's attorney, Miles Ehrlich, told Alsup there'sย โpotential for criminal actionโ against his client, but no pending subpoena. That's ordinarily an early step in a criminal investigation.
Uber and its robocar unit, Otto, have denied the claims in Waymo's February lawsuit that they took proprietary information.
โWe look forward to our first public response laying out our case on Friday, April 7,โ Angela Padilla, Uber's associate general counsel, said in a statement. โWe are very confident that Waymo's claims against Uber are baseless and that Anthony Levandowski has not used any files from Google in his work with Otto or Uber."
Waymo declined to comment on the transcript.
In Wednesday's hearing, Arturo Gonzalez, a lawyer for Uber, told Alsup that he โwould love" to put Levandowski on the witness stand โbecause he has a good story to tell,โ but acknowledged that he can't force the engineer to testify.
As an alternative, Gonzalez said, Uber is going to show the court that the company isn't using the trade secrets Waymo says Levandowski stole.
โWe're going to demonstrate to you that we are not using any of these things that they say he may have taken," Gonzalez told Alsup.
โLegitimate Point'
โThat would be a legitimate point," Alsup said. โMaybe you can convince me of that."ย
The judge previously said in open court he's taking the allegations against Uber seriously.
โYou don't get many cases where there is pretty direct proof that somebody downloaded 14,000 documents, and then left the next day,โ Alsup said at a March 16 hearing.
Uber is attempting to move the case to private arbitration, which would remove it from public view. On Wednesday, Uber said Waymo initiated arbitration against Levandowski in October -- four months before Waymo filed its lawsuit.
The case is Waymo LLC v. Uber Technologies Inc., 17-00939, U.S. District Court, Northern District of California (San Francisco).
To contact the reporters on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net, Mark Bergen in San Francisco at mbergen10@bloomberg.net, Eric Newcomer in San Francisco at enewcomer@bloomberg.net.
To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net, Mark Milian at mmilian@bloomberg.net, Jillian Ward at jward56@bloomberg.net, Peter Blumberg, Joe Schneider
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