Once again, it's really weird to settle in the middle of a trial. Before the revelation that Waymo had proffered that earlier $500 million settlement, I thought it was possible that it was Waymo's plan all along to put Travis Kalanick on the stand, question him for two days about his terrible text messages, play the Michael Douglas "Greed is Good" speech in open court for the jury, and then blow this popsicle stand before a jury verdict could come in. Another possibility was that as the week progressed, Waymo realized its case was too weak to go to the jury.
And well, both possibilities only made sense if Waymo's lawsuit — despite all of the hilariously suspicious circumstances around the alleged document theft — was actually a nothing burger all along.
After the report of Waymo's settlement offer earlier this week, I think this all points to Waymo knowing it had a dud on its hands. Once Uber, for whatever reason, decided to capitulate to non-use terms, the settlement was in.
Look, it's not that Waymo had no case. In trial, Uber did not try to dispute that Anthony Levandowski downloaded 14,000 documents onto his work laptop, moved them onto his personal laptop, and then moved them onto other disks. Uber also did not try to dispute that Levandowski was getting cozy with Travis Kalanick before he left Google and that the two of them were unbearable bros who sent each other the most idiotic text messages you could possibly imagine.
But Uber fought back hard on the idea that Kalanick and Levandowski formed some kind of conspiracy in December 2015 where Levandowski would take 14,000 documents and bring them over to Uber. And even the most damning of documents — the Stroz Friedberg due diligence report, which records second- and third-hand information about a suspicious meeting at Uber — suggests that Travis Kalanick didn't know about the documents until late in the game, that he never saw them, and that he told Levandowski to get rid of them as soon as he found out that they existed.
Of course, there's plenty of stuff that Waymo was never able to get its hands on, simply because it was destroyed. Kalanick had 30-day auto-delete set on iMessage. His texts were still forensically recovered, but he also used Telegram and if he sent any ephemeral messages through that, Waymo never got ahold of them. Then there's the missing "NEWCO" hard drive that was connected to Levandowski's laptop back in January — NEWCO was Uber's code name for the startup that would become Ottomotto. And of course, Levandowski was expected to invoke the Fifth Amendment on the stand, which, you know, makes you kind of think something's up!
But just because things smell bad doesn't mean that Waymo was going to win their case. It was Waymo's case to prove, and they had over a year to comb through a mountain of phones, laptops, and servers. They tore Uber apart looking for the smoking gun and came up so short on evidence of a conspiracy that one of the exhibits they showed in court was a picture of a whiteboard at Uber where Levandowski had written "1) Pittsburgh -- I know some shit." (Further down this truly genius list, he had also written, "3) West coast rap (Tupac).")
Based on testimony, it does sound like something was weird about the circuit boards at Uber, but Anthony Levandowski's general experience with LIDAR doesn't count as a trade secret that Google gets to keep forever. Of course, if the circuit board infringed something Google had patented, they could sue Uber, even if Uber had come up with the idea independently and even if Levandowski was listed as an inventor on the patent.
The original lawsuit asserted patent claims as well as trade secrets. Eventually the lawsuit narrowed all the way down to eight specific trade secrets. A lot of this case has been under seal and the public hasn't gotten a real look at the technology involved — because trade secrets lose their legal protection the moment they're no longer secrets.
Yesterday I noted that I found it suspicious that Waymo had spent so little time under seal in the courtroom. Here's the other thing: if the circuit boards were so similar, why did the patent claims drop out of this case? Isn't that…. Weird?
So it's starting to look like the better question is, "Why didn't Waymo settle sooner?" There's a bunch of possible answers to that. For one thing, with a nothing burger case, maybe a non-use clause in a settlement agreement was the best they could hope for. And you can't discount the possibility that it was mostly a grudge match between bros all along. Larry Page is reportedly extremely, extremely angry — or, in Kalanick's words, very "unpumped." Sometimes lawsuits aren't driven by rational actors, they're driven by people who are very mad at each other.
But the most important part is that even if Waymo wasn't going to win the lawsuit, they've won a different war.