"The bite of the Court’s May 11, 2017 Preliminary Injunction Order, as it relates to nonparty Anthony Levandowski, can be summarized quite simply: 'Waive your Fifth Amendment rights... or I will have you fired. The choice is yours, Mr. Levandowski.' But, even when framed as a “choice,” this command runs counter to nearly a half century of United States Supreme Court precedent, beginning with Garrity v. State of New Jersey, 385 U.S. 493 (1967), in which the Court held that the Fifth Amendment forbids a government entity from threatening an individual with the choice “between self-incrimination and job forfeiture.” Id. at 497, 500. As the Supreme Court observed in Garrity, the “option to lose [one’s] means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” Id. at 497. As the Supreme Court made clear, whenever
a state actor imposes this choice between “the rock and the whirlpool,” it engages in unlawful constitutional compulsion, which, among other things, operates to immunize any resulting testimonial statements."
Isn't anyone else here bothered by the due process implications of Judge Alsup's demand to force Levandowski to give up a Constitutional right or be fired? I'm generally a fan of Alsup, but this sets terrible precedence.
The thing to note here, is that as far as Alsup is concerned, Levandowski isn't a party to the case. There's Uber and Waymo. Uber has been instructed to get information for Waymo as part of a civil proceeding in which Levandowski is not a party. To do anything less than their fullest to compel Levandowski to give that information to Waymo would make Uber liable.
Its worth remembering that, at this point, this is only a civil suit, so among other things, silence can actually be used against you (adverse interference).
That's completely reasonable when it is an employee that isn't in a position where there is the possibility of criminal charges, but when there is, it's important that we give full gravity to the position we are putting the employee in. The lawyers really put it well by describing it as being between “the rock and the whirlpool".
Personally, one of criteria I would use to determine whether or not to take the 5th would depend on the general position of the public towards me. If the public generally thinks I am guilty before I've testified and they are generally taking in evidence and arriving at the conclusion that I'm guilty without truly considering the existing evidence, it'd would be stupid for me to testify.
I don't think there is a soul here that hasn't at least once had experiences where every one of their actions were viewed as having malicious intent by the peanut gallery. Once you experience such injustices firsthand as the accused, you learn empathy for others in similar circumstances quite quickly.
legalese note: I think you mean "adverse inference", not "adverse interference". I only note this because "interference" is a word used in some legal jargon (e.g., "tortious interference"), so this typo could be confusing to others.
Seeing as how the expert testimony is far from being in the least bit conclusive but allegations were presented as such, it's not hard to see why it is best to say nothing. Every word you utter will be used against you in the least charitable way possible, especially when the court of public opinion already thinks you're guilty.
Can you show me where in the expert testimony this is? I haven't yet found this exact allegation myself. I've seen the media parrot this over and over again.
The expert testimony identified a specific model card reader attached to the computer a full three days later. It didn't say that a memory card was ever inserted into the card reader and mounted a logical volume. Nor did the expert testimony mention any files copied to an external drive. The have an expert testimony with specific details from logs about a card reader being inserted but no specific details about a storage device or files being copied? Does the lack of these details but specificity of other details not strike anyone else as odd?
The only copying of files that were specifically identified in the expert testimony was the copying of about a half dozen files to Google drive. That's it. I'm not saying that there isn't the possibility of wrongdoing, but the expert testimony certainly doesn't support the allegations enough to meet the criteria of "preponderance of evidence" for me at least. The testimony definitely doesn't meet the criteria of being a smoking gun, yet that is how it has been reported.
> Does the lack of these details but specificity of other details not strike anyone else as odd?
Not particularly. There's only so much they can log easily by tying into the system. Card reader insertions are easily tracked through OS level event logs in most operating systems, but generating a log entry for every file copy that happens is quite another level of granularity.
It's sort of like street level cameras. They may catch someone going into a a house or business, but unless you have prior knowledge that there is a camera inthe house or business that the state should have access to, omission of footage of what happened inside does not insinuate that something is being omitted on purpose.
> The only copying of files that were specifically identified in the expert testimony was the copying of about a half dozen files to Google drive.
Yep, and only one of them was by Levandowski. "Chauffer TL Weekly Updates - Q4 2015"
There's only so much that the expert testimony was able to establish. But what it did do was get the judge to authorize more discovery, so Google will apparently get a lot of data from Uber to search through to find their smoking gun, if it exists.
Yeah, I wouldn't expect logs for every file, but I would expect logs for the insertion of a card into the card reader and mounting a logical volume from that card. How big was the card/volume, if any? And if there even was one, was it even big enough to hold the entirety of that repo.
Also, while copying isn't auditable on windows, windows can audit object reads and writes. Were there any logs showing that the directory with the files were read while the card reader was inserted into the machine? It's off by default however. Does anyone know the default audit settings of a new google windows installation to know what folders it turns on logging for if any?
These are all issues and details I would expect to be mentioned in an expert's report if they weren't trying to be selective in the details they provided. Since this expert works for Google, omitting details in Google's favor wouldn't surprise me. I didn't see any statement in the expert's report where they had to make a statement under oath where they declare that they aren't omitting any other details that may be relevant to the court. Without such a declaration, it's possible to be truthful, but deceptive without perjuring yourself.
https://regmedia.co.uk/2017/05/19/levandowski-waymo-fifth.pd...
"The bite of the Court’s May 11, 2017 Preliminary Injunction Order, as it relates to nonparty Anthony Levandowski, can be summarized quite simply: 'Waive your Fifth Amendment rights... or I will have you fired. The choice is yours, Mr. Levandowski.' But, even when framed as a “choice,” this command runs counter to nearly a half century of United States Supreme Court precedent, beginning with Garrity v. State of New Jersey, 385 U.S. 493 (1967), in which the Court held that the Fifth Amendment forbids a government entity from threatening an individual with the choice “between self-incrimination and job forfeiture.” Id. at 497, 500. As the Supreme Court observed in Garrity, the “option to lose [one’s] means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” Id. at 497. As the Supreme Court made clear, whenever a state actor imposes this choice between “the rock and the whirlpool,” it engages in unlawful constitutional compulsion, which, among other things, operates to immunize any resulting testimonial statements."
Isn't anyone else here bothered by the due process implications of Judge Alsup's demand to force Levandowski to give up a Constitutional right or be fired? I'm generally a fan of Alsup, but this sets terrible precedence.