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Judge won't back down on demands in Uber-Waymo trade secrets case

Just before he left Waymo, Google's self-driving car unit, a star engineer downloaded around 14,000 files from the company. He then started a self-driving truck company, which was then bought by Uber. Uber also hired the engineer, which is how trade secrets from Waymo apparently "seeped into" Uber's competing program. Waymo sued for trade secret and other intellectual property violations, unfair competition and other claims.

In early May, a federal judge determined that Uber knew or should have known the engineer had possession of all those Waymo files. He ordered the engineer to be kept away from the disputed intellectual property and ordered Uber to perform an internal investigation and report back immediately. 

Uber has claimed that virtually all of the materials the judge wanted in that report were subject to attorney-client privilege. In late May, a federal magistrate ruled that any files that provide evidence of an ongoing fraud or other crime cannot be privileged, and ordered Uber to turn them over.

Moreover, the engineer refused to turn over any files himself, claiming his Fifth Amendment right against self-incrimination. The federal judge denied the engineer's Fifth Amendment claim.

Can a judge force someone to choose between the Fifth Amendment and his job?

Next, Uber fired the star engineer. He reiterated his Fifth Amendment privilege, this time claiming that he had been forced to choose between his constitutional rights and keeping his job. He went on to say that the federal judge's order had essentially forced Uber to fire him. If so, he asserted, the order was a coercive action by the government and thus unconstitutional.

Uber claims it fired him because he refused to cooperate with the internal investigation the judge had ordered. However, even if Uber had felt compelled by the order to fire the man, the judge said, this would not constitute a government action.

Although a government employer wouldn't be allowed to coerce an employee into waiving his Fifth Amendment privilege, the judge ruled, a private company like Uber can. A federal district court has the authority to order a private company to do something it has the authority to do. Therefore, the coercion claim fails.

Now that Uber has fired the engineer, however, it may have lost what access and leverage it had to the engineer, which could make it much harder to learn the truth.

The judge also dismissed Waymo's unfair competition claim as preempted by the California Uniform Trade Secrets Act, and denied Uber's motion to force arbitration.

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