“Frankly, it’s appalling to me that someone could be using a network like Wickr for the express purpose of evading their potential obligations in litigation,” says John Marsh, a lawyer with the firm Bailey Cavalieri who specializes in trade secrets litigation. (In a 2016 case in Colorado, a judge held a company responsible for failing to hand over text messages during discovery, even though a low-level employee accidentally deleted those messages.) Thanks to federal court decisions dating back to the early 2000s, companies under threat of suit must save even electronic documents, and turn them over in discovery, if asked. And if you have an inkling that you could be sued, you're supposed to keep hold of your documents, instead of routinely destroying them. There are a few federal, state, and local regulations that require specific sorts of companies to keep specific documentation, like tax records, on hand. The company hasn't yet publicly produced decisive evidence that Uber used Waymo intellectual property to advance its self-driving efforts. This “may explain why the 14,000 files stolen from Waymo by Anthony Levandowski have not yet been discovered on the Uber infrastructure,” Waymo’s legal team wrote in a brief filed this week. Waymo’s theory is that Levandowski, Ron, and other Uber employees used Wickr and other "ephemeral" messaging apps, which delete conversations, to discuss the trade secrets they had stolen from Waymo. Levandowski and Lior Ron, another former Google self-driving engineer who ended up at Uber, also used it to communicate, according to testimony from Uber employees. According to pre-trial testimony, intelligence gathering teams at Uber used Wickr and another app called Telegram to discuss sensitive information. It's [like Slack, but for the Impossible Missions Force. Anybody can download Wickr to send encrypted messages that destroy themselves, but its professional, workplace product takes the extra step of giving the employers the power to determine how long the messages stick around before it deletes them. It wasn't a security analyst, like Ric Jacobs, a former Uber employee whose allegations of malfeasance within the company delayed the Uber-Waymo trial by two months as the judge reopened the document discovery process. It wasn't an engineer, like Anthony Levadowski, the former Google engineer who allegedly brought reams of Waymo trade secrets to his next big gig as head of autonomous driving at Uber. During a pair of explosive pre-trial hearings last week, the lawsuit between self-driving Alphabet spinoff Waymo and Uber over trade secrets got an unlikely, new star player.
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