Exterro's E-Discovery Breakdown

The world of E-Discovery is constantly changing – let us break it down for you with a weekly dose of News, Resources, Case Law, and Humor, all written in a concise and easy to understand format.


Case Law Alert: With No Intent, No E-Discovery Sanctions for Uber

Created on December 7, 2018

Director of Marketing Programs at Exterro

While Waymo LLC v. Uber Techs, Inc. (N.D. Cal. Jan 29, 2018) drew lots of attention for its allegations of malfeasance, this case is a great example that even with evidence deleted after there was a duty to preserve, there's a very high threshold for proving that an offending party had the "intent to deprive." 


In this misappropriated trade secrets case involving self-driving car technology, the plaintiff, Waymo, alleged that the defendant, Uber, spoliated a variety of different data types that included “hundreds of text messages,” Slack records, five CDs and a couple of personal laptops.

Throughout discovery, the plaintiff accused the defendant of consistently engaging in discovery misconduct. The plaintiff requested an adverse jury instruction. Even though the defendant conceded that this data was deleted, they countered by arguing that they didn’t have a duty to preserve, because they didn’t reasonably foresee litigation and that the spoliated evidence was irrelevant.


  • Judgment withheld. The court could not rule on whether the adverse inference instruction was warranted because the court didn’t know if the defendant acted with the requisite intent to deprive. The court “reserves the possibility of an adverse inference instruction” until trial.
  • Too much time spent debating e-discovery. The judge felt that the case was becoming less about the merits and if misappropriation occurred and more about “whether or not Uber is an evil corporation.”
  • Case settles. Shortly after the court issued this opinion, the two parties came to a settlement of $245 million.

Expert Analysis from Nancy Patton, Esq., CEDS

Parties seeking adverse jury instruction related to spoliation of ESI must be prepared to prove intent to deprive. In the event this is not shown, the court may reserve ruling on such instruction until trial. Having more time to prove or refute the assertion should not be relied on, however, since “intent” is often subjective or simply hard to determine and will vary from judge to judge.

Case Law Tip

What does a defensible e-discovery process look like? Download this case law white paper, “What Does “Reasonable” Really Mean?”to find out.