Pando

“Why are we trying to hide this?”: Finally, Uber gets its big, ugly, un-hackable day in court

By Sarah Lacy , written on May 3, 2017

From The Legal Affairs Desk

Yesterday, I attended Michele Dauber’s Stanford Law Center conference on how to protect Title IX in a President Trump world.

The conference itself was controversial well before attendees gathered. Just the poster generated a dispute.

Dauber-- who is leading the effort to recall Judge Aaron Persky and has spent her career fighting against domestic violence and campus sexual assault-- got all sorts of grassroots activists, lawyers, policy makers, and professors and administrators together to come up with solutions for ending rape culture on campuses.

Apparently, when Dauber invites you to an event, you can’t just come in late and sit on your phone in the back. She puts you to work. She divided attendees up into groups and tasked us with specific parts of the problem we needed to solve. I was on the group around media and messaging, appropriately.

As we gathered back at the end of the event, and I listened to all the different proposed solutions, a lot of them revolved around law and order. How to link up campuses with local police for better cooperation, a repository of legal briefs and cases that people can use and reuse, different ideas strategies for how to sue, the differing roles of civil courts versus criminal courts.

The problem with sexual abuse on campuses is known. And many colleges are simply not addressing it. Parents, somehow, aren’t concerned that at schools like Stanford some 40% of undergrads are the victims of serious sexual misconduct, even though you’d think twice about sending your kid to a school where nearly half of the kids were likely to get shot or mugged.

So frustrated professionals like Dauber who have devoted their career to this issue are increasingly leaning on the courts and when the courts don’t deliver justice-- as they didn’t in the Brock Turner case or the Abhishek Gattani case-- they tirelessly work to get better judges.

Remember that time Time Magazine made “You” the person of the year because of the rise of the user generated content revolution? If I were in charge of 2017’s “person of the year” I’d pick the judicial branch of the US government.

When I was learning about the three branches of government in school, the judicial branch always kinda seemed like the lame, uninteresting one. Nothing so glitzy as the President. Even the Senate has that cool Noah’s Ark like thing with two senators from every state, hashing out bills Parliamentary style. The President and Congress can take action, I thought. The courts just had to sit around, judges not retiring and getting older and older, waiting on someone to sue so that they could weigh in on a law.

Not so in 2017. Suddenly it’s the judicial branch that is doing all the heavy lifting in democracy. It’s the judicial branch that has repeatedly been the only check on Donald Trump’s power. The judicial branch is where the fight to make college campuses safer is centering. And in the tech world, the judicial branch may be the place where Uber finally gets the comeuppance that its investors, board or disaffected customers who can’t be bothered to download Lyft won’t deliver.

Today, Judge William Alsup is hearing Waymo’s argument for an injunction to stop Uber’s development of it’s self driving car technology-- yunno, the upcoming tech battle that the highest valued private company in Silicon Valley history has said is “existential.”

You can follow the moment by moment via reporters on Twitter. (The New York Times’ Mike Isaac has a good feed.) As expected, Waymo is alleging that Otto was a smokescreen and that Anthony Levandowski was working as an agent of Uber when he allegedly stole Waymo’s technology.

So far Judge Alsup has not been taking Uber’s shit. In arguing the documents should be public and not redacted he said, “Why are we trying to hide this?” And that is not the first time the judge has smacked Uber down. Last month, he rejected Levandowski’s request to plead the Fifth in order to keep details out of the trial.

As a reminder, this is the judge who presided over the Oracle v. Google case, and learned Java in order to better understand the underlying facts. This is a tech-savvy judge who isn’t fucking around.

This isn’t the first time the judicial branch has delivered blows to Uber. It was a judge who proved that Uber’s threats of nasty oppo research against critics like me and Susan Fowler wasn’t just crazy accusations or a drunk executive spouting off at a dinner table. Uber did those things to a plaintiff and plaintiff’s attorney and lied about it when asked. A judge ordered encryption keys to get to the bottom of it, calling the practice “possibly criminal.” 

And it isn’t the first time the judicial branch may have a serious impact on Valley culture. We reported extensively on the “Techtopus” wage collusion suit where some of the most admired companies in Silicon Valley engaged in a cruel scheme to cheat its employees out of millions of dollars of free market wages, pilfering talent from startups instead of poaching from one another. And these brilliant masters of the universe were so assured of their untouchable status, they detailed it all in emails.

After Mark Ames wrote on Pando about those tentacles reaching into wage collusion against animation workers, a case was brought and those workers got a settlement of $100 million. We’re used to seeing our reporting have impact, but rarely an impact as conclusive as what courts can hand down.

And of course, there is the lasting impact of the Ellen Pao gender discrimination trial. While Pao didn’t win, it’s changed the conversation around gender in Silicon Valley, because the wonky details of how one of the most powerful venture capital firms operates was dragged out through the witness box. Thousands of women in the Valley watched as Pao and others described a climate of slights and micro indignities that was all too familiar. That trial helped to make that kind of bias recognized and talked about in the Valley.

The Microsoft Antitrust trial was the soap opera of Silicon Valley decades earlier, utterly changing the way everyday Americans thought about Microsoft and Bill Gates, until his publicity rebirth as one of the world’s top philanthropists.

There’s a reason this kind of thing is typically settled, no matter the cost. The damage can be conclusive, lasting, and unpredictable.

And so, now, it’s Uber’s turn. It is incredibly rare to see a huge tech incumbent sue a disruptive rival. How rare? Bloomberg detailed how Google’s engineers are frequently told during orientation that the company “will never sue a former employee for patent infringement.” Of course we’ve never quite seen a company like Uber that continually gives people so many reasons to sue it.

Just as with the Ellen Pao trial, Dan Raile will be in the courtroom everyday following the twists and turns of the case. He’ll write about it on Pando, and we may also send special updates to subscribers only via email. (So if you have enjoyed us being right on Uber for the last five years, it might be worth the $10 to become a Pando subscriber this month.)

Uber’s founders hacked the whole venture capital oversight thing by retaining control of its board. It hacked the whole SEC/stock market oversight thing by raising such jaw-dropping amounts of private money that it hasn’t had to go public. When it comes to government, it has outspent a lot of rivals on lobbyists, hired heavily from the government, including former CIA head Robert Gates.

So far, the only oversight Uber hasn’t found a way to “hack” is the courts. There’s no throwing money at the problem. And if you lie-- as they tried to when asked about engaging in oppo research-- the judge can order your emails decrypted and catch you.

That’s why this case will be so important to watch. It’s not only the scandal of all of Uber’s many scandals that could prove a fatal blow to the company, it’s a lesson for the bro-economy writ large: The courts aren’t buying your shit the way users, VCs, and lawmakers have.