We’re lucky in the Bay Area to have a series of high-profile, high-stakes, high-tech cases coursing through our courts: Apple v. Samsung, Oracle v. Google, and now, Waymo v. Uber. When we’re not working with one of the trial teams on these cases, we enjoy observing as much as we can to understand more about judges’ jury selection procedures, the jury pool, and case presentation strategies. Waymo v. Uber settled but not before jury selection and four days of evidence.
This case in particular fascinated us because it involves the allegation of stealing trade secrets related to an emerging “Autonomous Vehicle Technology” that has not yet made it to the market. The technology has the potential to save the lives of millions of people, change the lives of billions, and may be valued in trillions of dollars.
The parties’ notoriety also added to the intrigue. Waymo’s parent company, Alphabet/Google, not long ago a start-up company, morphed into a near monopoly with almost 90% of the search engine market within the blink of an eye. Though it is well known for its “don’t be evil” principle, Google was a party in the no-poaching antitrust action in Silicon Valley and is frequently questioned about its data-privacy policies. Uber revolutionized the gig economy, and its charming yet controversial former CEO, Travis Kalanick, makes Uber a polarizing global presence. In the midst of this #MeToo moment, both Google and Uber have been widely criticized for their workplace cultures and lack of diversity.
Given the pretrial publicity and the notoriety of the parties, there’s a higher risk that jurors might hold biases against either side or be aware of evidence that was reported in the media but deemed inadmissible in court. With the concerns about bias against the parties in mind, we wondered how Judge Alsup’s jury selection process would ferret out biased jurors.
Judge Alsup received national media attention for forbidding counsel in the 2016 Oracle v. Google trial from conducting social media searches on prospective jurors. Judge Alsup issued an order requesting that counsel in this case agree to those same terms, and both sides acquiesced. Both sides requested, and received, one hour for questioning potential jurors.
Jury Selection Procedures
At about 8 a.m. on February 5, 2018, the jurors were called into the courtroom. All 65 of them received a tag with their random number on it while attorneys received a list of the jurors’ names in alphabetical order. Judge Alsup gave a short introduction, which included references as a “high profile” case with “extremely talented attorneys.”
Jurors were then asked to complete a questionnaire that was on the front and back of one page, and the proceedings paused while the jurors completed it. The questionnaire was the same one that Judge Alsup allowed in the second Oracle v. Google case in 2016, except the questions pertaining to the parties and witnesses were changed to include the parties and witnesses in this case.
Prior to trial, Judge Alsup and counsel decided on criteria for stipulating to jurors based solely on their responses to the questionnaire. The criteria likely related to whether jurors had:
- Heard of and formed opinions about the case;
- Favorable or unfavorable views about the parties;
- Problems with Uber’s or Google’s products; or
- Direct stock ownership in any of the companies involved in the lawsuit.
After all of the jurors completed the questionnaire, Judge Alsup called them, one at a time, before the bench. He reviewed the questionnaires until 16 were stricken for cause based on their questionnaire responses. Of the 49 who remained, a jury of 10 would be seated after both sides got three opportunities to exercise a peremptory challenge. In a practice that we’ve only seen in federal court, passes counted as an exercise of a peremptory challenge.
If a juror’s answers suggested that they were unfit for the case based on the criteria that parties had agreed to, they were excused immediately by Judge Alsup. Counsel was not given the opportunity to argue whether the answers suggested bias, nor were they given the opportunity to question jurors about their biases. Of the 20 potential jurors who were initially called before the court, only four were excused based on their responses to questions on the questionnaire.
Pining to Serve
Judge Alsup stated repeatedly that the jurors were lucky to be summoned for this trial because of the quality of the attorneys and the fact that the case was a high-profile one that had been in the news. Judge Alsup’s statements may have increased jurors’ willingness to serve on the trial, while also decreasing the likelihood that jurors would admit to biases that could disqualify them from serving. In fact, Judge Alsup and the attorneys noted that one of the final seated jurors had crossed out a statement he had written on his questionnaire after hearing the judge question other jurors.
One juror learned that she was being called to court for the Waymo v. Uber case because of online sleuthing she conducted prior to court. She knew she was being called into Judge Alsup’s courtroom, so she looked at his calendar and saw the jury selection for Waymo v. Uber. She started to look for additional information about the case before realizing that might not be allowed. (Waymo eventually exercised a peremptory challenge against that juror.)
A jury of four women and six men were seated in the case. Bay Area jury panels are known for being technologically sophisticated, and sometimes their knowledge pertains directly to the issues raised in the case. Of the 16 potential jurors who seated before peremptory challenges were exercised, three jurors expressed some experiences with radar technologies. Two were eventually seated as jurors.
Waymo exercised its peremptory challenges against the one juror who was familiar with the LiDAR technology that was at issue in the case, a juror who had familiarity with patents as a result of her work with medically related lasers, and a young long-haired software engineer who worked with a financial services company attempting to develop an online SaaS product.
Uber’s excercised the first of its three peremptory challenges on a female church-goer who worked as a writing coach. She mentioned that other members of her writing group made money by working for Uber. The second peremptory challenge targeted a male Marine Corp veteran who worked for a company that provides supply chain services for OEMs. Uber used its final peremptory challenge on a woman who was a manager in the healthcare industry. She was the only African American juror questioned in jury selection.
In October of 2017, months before jury selection, Judge Alsup told the press to pay attention to which side exercises peremptory challenges on jurors with training in technology. Now that jury selection has concluded, it appears that Waymo was more concerned about jurors who were technology savvy. It’s not surprising that the plaintiff in a trade secret case would be more concerned about jurors who may have knowledge about the field because the knowledge that the potential juror possesses may overlap with what the plaintiff is claiming as a trade secret. Additionally, there is a category of juror who may know about patents, but not know about trade secrets. These jurors are particularly dangerous for plaintiffs in trade secret cases because those jurors may conclude, “If the information was so valuable, why not patent it and protect yourself?” There was one juror who expressed familiarity with patents, but not with trade secrets, and that juror was excused by Waymo. Given that the case settled during trial, it’s impossible to know what the jury’s verdict would have been.