Takeaways from the Swift End to <i>Waymo v. Uber</i>

Milligan said that in regard to high-level employees, the lesson for employers is simple: “You have to read them the riot act as far as not bringing over any of their former employer's data.” Milligan said that goes double for high-level engineers, who tend to have an “ownership psyche” and may regard know-how that they carry in their brains as fair game, even when it's likely to be trade secret-worthy.

“Typically that know-how belongs to the former employer rightly or wrongly. That's where you have to be even more careful — particularly where there are strong personalities and strong emotions involved,” Milligan said.

Digital Fingerprints Are Everywhere

The digital age has made it easier than ever for an employee to walk out the door with massive amounts of data, as former Google engineer Anthony Levandowski is alleged to have done with the company files related to driver-less car technology. Even though Levandowski stayed mum, asserting his Fifth Amendment right not to incriminate himself in the case, the digital breadcrumbs left in his hardware allowed Waymo's lawyers at Quinn Emanuel Urquhart & Sullivan to lay out a compelling case.

“Everything has a digital footprint,” said Santa Monica-based employment lawyer Daniel Handman of Hirschfeld Kraemer. “[Technology companies] know when their things have been taken, accessed, stolen better than anyone else.”

Jason Geller, a management-side employment lawyer at Fisher & Phillips in San Francisco, said that even with the modern ways of tracking company data, it's important for companies to take stock of exiting employees through thorough interviews. He said it's also a good practice to get written representations from departing employees that they aren't taking any company data or trade secrets with them.

What Becomes of Anthony Levandowski?

We'll have to wait and see.

His lawyers at Ramsey & Ehrlich didn't respond to an email seeking comment.

But since Alsup referred the case to the U.S. Attorney's Office last year, Levandowski has lost his job and, according to testimony from his Otto co-founder at trial, the driver-less car company he left behind at Uber has missed out on all kinds of milestone-based payouts.

The U.S. Attorney's Office acknowledged that its criminal investigation was ongoing earlier this year in a letter to Alsup. Just if and when federal prosecutors might move to press charges against Levandowski is unclear.

Since Waymo v. Uber didn't make it to the jury, no trier of fact has determined that the trade secrets Levandowski is alleged to have taken were actually protectable. But Seyfarth's Milligan points out prosecutors did get the benefit of seeing the evidence that came in at the civil trial and will be able to rely on the assessments of some of the experts for both sides in the case before they take action.

***** Ross Todd is bureau chief of The Recorder, a San Francisco-based ALM sibling of The Intellectual Property Strategist.