The former Uber board member was called as a witness in the trial for Alphabet’s trade secret complaint against Uber.
Benchmark partner Bill Gurley’s time on the stand was short. The former Uber board member was called as a witness on the fourth day of trial for Alphabet’s lawsuit against Uber.
But in that brief time on the stand, Gurley — who presiding Judge William Alsup said could take the cake for the tallest witness in his court room — managed to contradict a small part of former Uber CEO Travis Kalanick’s testimony.
Gurley was called upon as sort of a pseudo representative of Uber’s board at the time the company acquired self-driving trucking startup Otto. The startup figures at the center of Alphabet’s lawsuit against Uber, which alleges Otto co-founder Anthony Levandowski stole files to bring to Uber when he left Alphabet to found the startup.
According to his testimony, Gurley was one of the more involved board members at the time of the acquisition.
As Alphabet would later claim, Kalanick and Uber conspired with Levandowski to bring files from Alphabet to Uber.
Before the acquisition, Uber hired a cybersecurity firm Stroz Friedberg to do due diligence on Otto employees. Specifically, they were looking through the personal devices of five of the top executives — including Levandowski — to see if there was any intellectual property or trade secrets.
As part of this process, Levandowski revealed to Stroz Friedberg and Kalanick as well as other Uber staffers that he had in his possession five discs of Alphabet information. Levandowski claims to have destroyed those discs.
But according to Gurley’s testimony, he was given the impression that the due diligence investigation came up empty.
This, as it turns out, is not true, and is one reason Benchmark filed a now-dismissed lawsuit alleging Kalanick committed fraud.
But here’s where the contradiction comes in. Gurley testified that it was Kalanick, not another Uber executive — Cameron Poetzscher — who gave most of that presentation to the board. Poetzscher simply chimed in here and there, he said.
Kalanick, however, testified that all he did was give a “preamble” to the presentation.
Q: And you and Mr. Cameron — excuse me, Mr. Poetzscher — presented this slide deck to the board as part of the presentation to the board in connection with approving the transaction. Correct?
TK: So I did a preamble to this presentation and then Cameron presented the presentation itself.
Q: Are you saying you weren’t involved in this presentation,
TK: I said that I did the preamble to the presentation. I did not present the slides.
Q: You didn’t say anything at this meeting except a preamble?
TK: I may have said something during the meeting. I just didn’t present the slides.
It’s a small fact that could be brushed off as a build-up to the actual questions Waymo attorneys wanted to ask Kalanick.
But this is potentially important, since Uber has been trying to ensure Kalanick is not portrayed as the person who told the board that the due diligence report found no files on the personal devices of Levandowski and the Otto team. In fact, Kalanick has testified that he never read the due diligence report, nor did he read the acquisition or indemnity agreements associated with it.
Gurley said he could not remember who exactly said that there were no issues with the due diligence report but that he came away from that meeting with the impression that there were no red flags.
Gurley said he distinctly remembered engaging in discussion about things like the due diligence report at the meeting because he felt the indemnity agreement Uber promised Levandowski and Otto was “atypical.” That agreement essentially ensured that Uber would protect Otto and Levandowski from any litigation that came out of “pre-signing bad acts.”
Moreover, Gurley’s testimony further emphasized the broken relationship he has with Kalanick. The crack first formed when, along with other major shareholders, Gurley forced Kalanick to step down; Gurley subsequently resigned from his position on Uber’s board himself.
When Uber attorney Karen Dunn began cross-examining him, it was clear, unlike many witnesses currently or previously associated with Uber, Uber’s legal team was not aligned with Gurley.
In fact, Judge Alsup allowed Dunn to ask “leading questions,” wherein an attorney prompts the witness with the desired answer. It’s a small nuance, but when you are questioning a witness who is aligned with your side you are not typically allowed to ask leading questions. But because he’s no longer a board member, Alsup allowed it.