Tough, tech-savvy Alsup is overseeing Waymo-Uber trade secret case

1 February 2018 10:36am
Gavel on US Flag

30 January 2018. By Amy Miller and Mike Swift.

Fast-changing, complex technology doesn’t intimidate the 72-year-old federal judge presiding over the upcoming trade secret trial between Waymo and Uber Technologies, a high-stakes case that could upend the balance of power in the nascent self-driving car industry.

US District Judge William Alsup in San Francisco, California, has been infatuated with technology ever since he was a boy in Jackson, Mississippi. He turned on a friend’s Zenith Transoceanic shortwave radio, extended its eight-foot antenna, and was transported to a bigger world, listening for the first time to Radio Free Europe and Radio Moscow.

“This just thrilled us,” Alsup said. “The idea we’d ever go to Europe or South America was beyond our comprehension. We were just two little barefoot kids in Mississippi.”

Six decades later, Alsup’s thirst to master new technologies hasn’t ebbed. He writes software programs as a hobby, and spends his down-time practicing the art of light and lenses as a photographer.

That hunger to learn has served Alsup well in the courtroom, where he’s overseen some of the highest-profile litigation between Silicon Valley’s toughest competitors, including the $9 billion fight between Google and Oracle over the copyright to the Android operating system. He has become an influential voice on technology law, in arguably the most important court for tech law in the United States.

More recently, Alsup attracted national attention when he defied President Donald Trump and issued a national injunction restoring, at least temporarily, barriers to the deportation of nearly 700,000 undocumented immigrants in who came to the US as young children.

Alsup has another skill that could be just as important in Waymo v. Uber. He knows how to keep experienced, well-paid legal teams in check. In a highly complex case like Waymo v. Uber, Alsup’s ability to prevent lawyers from confusing jurors with a blizzard of highly technical testimony could prove just as critical as his technical expertise.

Alsup has a reputation for being tough on lawyers he suspects of bad behavior, a reputation he’s lived up to repeatedly as litigators for Waymo and Uber have stood before his bench time and time again, arguing over the production of thousands of documents. Alsup said he’ll always push back when he sees big law firms with virtually limitless legal resources try to manipulate the court system and its limited resources, and he knows all the lawyers’ tricks.

“I did it for 25 years,” he said of lawyering, repeating the statement for emphasis. “I have to cut them some slack,” he said, because they’re advocating for their clients. “But there is a line. When they go over that line with a dirty trick, I am going to call them on it.”

A sweeping view

Alsup’s view of San Francisco from his spacious 19th-floor chambers is sweeping. He’s placed a photo of Abraham Lincoln next to a window that looks out over the gilded dome of City Hall. Another photo of Lincoln looks sternly down from the wall above his desk. An easel in the center of the room covered with brightly colored diagrams of electronic devices illustrates on paper the judge’s technical thinking.

Alsup points out a photo of the small, white wooden house where he grew up in Jackson, which he recently reprinted himself on thick, cream-colored paper.

The walls and bookshelves are decorated with photos and watercolors of the Sierra Nevada mountains, a frequent source of inspiration for Alsup. He spoke to MLex from a comfortable brown leather chair wearing a pair of well-worn hiking boots, an iPhone to his right and an iPad to this left.

Alsup has become so enamored with the history of the mountains, he helped lead the fight to preserve Bodie, an intact ghost town in the Sierra Nevada mountains near Mono Lake, now a California State Historic Park. He also published a book in 2005 about a wealthy San Francisco attorney, Peter Starr, who set off to hike the rugged region alone in July 1933 and disappeared, titled “Missing in the Minarets.”

“It’s still available on Amazon,” Alsup says proudly.

And he’s honed another hobby in the Sierra Nevada that requires technical expertise, photography. His black-and-white portraits of the mountains now hang in federal courthouses in the Bay Area, all donated at the request of fellow US District Judge Charles Breyer, Alsup is quick to add. “My only requirements were that the photos have good frames and good light.”

'Must love dogs'

Alsup is, by nearly all accounts, a demanding personality, as a recent ad for a law clerk for his “civil/IP desk” will attest. “Judge Alsup is a ‘morning person’ and so must be his law clerks,” the ad reads. Alsup frequently begins his days hours before dawn and often schedules hearings at 8 a.m. During trials, lawyers appear in court by 7:30 a.m., sometimes earlier. At least once a week, he walks up the 19 floors to his chambers.

Don’t expect much time off, the ad warns. “Applicants should know that due to the large caseload, the hours will be long with little or no vacation time. The reward will be invaluable experience, considerable responsibility and memories on a wide range of fascinating courtroom scenes.”

Also, Alsup’s clerks “must love dogs.” Alsup often comes to work with his Jack Russell Terrier, Jack, who eagerly demonstrated his talent for obtaining belly rubs from obliging law clerks on a recent visit.

But Alsup is as demanding of himself as he is of clerks and others, lawyers and fellow judges say. Alsup is assigned as many cases as other federal judges in the Northern District of California, but observers say his docket moves faster because he’s so good at managing complex litigation. He also isn’t afraid to experiment in court and try new approaches, whether it’s appointing a damages expert in a complex copyright case or ordering “shootout-style” hearings to quickly narrow the number of claims in unwieldy patent cases.

He’s “inspirational,” said Paul Grewal, a former US magistrate judge in San Jose, California, who’s now a deputy general counsel at Facebook. “He just has a work ethic that is second to none.”

“You get this feeling that you are always trying to catch up to him,” Grewal added. “That might be part of what people outside the courthouse might not appreciate about him: There is nobody that Judge Alsup is harder on than on himself.”

Often, Alsup knows more about the technology in a case than the lawyers, observers say. He even became a minor celebrity in tech circles after telling lawyers that he had learned to write in Java during the first trial between Oracle and Google over whether Google violated Oracle’s intellectual property rights by copying elements of Java into its Android operating system.

In Waymo v. Uber, Alsup received a tutorial on the LiDAR technology at issue in the case, and he also asked both sides to suggest a book. But, he said, remember that he already knows something about photography: “Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused on a screen behind the lens, and the use of a lens to project as well as to focus.”

'My God, this is great'

Alsup had enrolled at Mississippi State University in 1963 planning to become a civil engineer, like his father, a quiet man “who would say about 10 words a day,” Alsup said. But the Civil Rights Movement changed his plans.

Until he went to high school, Alsup said, his views about race and segregation were like most whites in Mississippi. When his “fiercely independent” older sister, Willanna, argued with his father, insisting that she be allowed to have African-American friends, “this was all just going over my head,” said Alsup, who was 12 at the time. “There was a journey over the next few years for me,” he said.

As the Civil Rights Movement gained steam, he fell in with a group of friends who were open to the idea that things “weren’t right” in Mississippi, he said. His parents may not have been political radicals for their time and place, but they had taught their children fairness, Alsup said.

By his senior year of high school, he was writing letters to the editor of the Clarion-Ledger in Jackson advocating for equal voting rights for blacks — a highly controversial, if not dangerous, stance to take in early 1960s Mississippi. One night, the 17-year-old and two friends sneaked out at night and painted over a John Birch Society billboard on the edge of town that read “Impeach Earl Warren,” the Chief Justice of the US Supreme Court who wrote the Brown v. Board of Education decision ending legal school segregation.

“Every time someone opened the door at the high school, I thought someone was coming to get me,” Alsup said. But no one ever did.

While at Mississippi State, he and a group of students threatened to sue the university if the school’s president refused to allow the head of the Mississippi NAACP to speak to students. The school backed down. And Aaron Henry became the first black person to speak publicly at the university, before a crowd of about 750 people, Alsup recalled. “I thought: ‘My God, this is great,’” Alsup said. “We didn’t even have to go to court. We just had to send a letter.”

Despite those successes, Alsup said he shouldn’t be considered part of the Civil Rights Movement, the way marchers and protesters were. “I was not out there putting my life on the line,” he said.

But he did decide he wanted to become a lawyer. He got into Harvard Law School, and went on to clerk for Supreme Court Justice William O. Douglas.

Alsup went back to Mississippi for six months to do civil rights work, but he “went broke,” he said. So he and his wife, Suzan, who will soon celebrate their 50th wedding anniversary, moved to San Francisco in 1973. He was a litigator at Morrison Foerster and spent a few years at the US Department of Justice, until he was appointed to the bench in 1999 by President Bill Clinton.

Down-home tough guy

From the bench, his tie predictably askew, Alsup combines his Southern twang, savvy litigation history and technical knowledge to project a kind of folksy, obstreperous tough guy. Nothing seems to rankle the judge faster than a sense that the lawyers in front of him are trying to put something over on him.

Basic fairness is still engrained in Alsup’s DNA. He’s mastered all the lawyers’ tricks, he said, and he frequently telegraphs the message that he's not going to tolerate any of them in his courtroom. Any lawyer — or member of the gallery — who might distract the jury with an outburst of coughing is familiar with the walk of shame to the front of Judge Alsup’s courtroom to receive a cough drop handed down from the bench.

Alsup said the cough-drop rule comes from his frustrations as a trial attorney, during the nearly 20 complex civil cases he took to trial. “Invariably, when I had them on the ropes, the other lawyer would start hacking and coughing, and the judge never did anything about it,” he said. Not in Alsup’s courtroom.

In Waymo v. Uber case, Alsup has been particularly hard on Uber’s lawyers, even accusing them of being “liars” and improperly withholding evidence. He’s delayed the trial twice due to evidence issues.

When Uber deputy general counsel Angela Padilla testified that she had never disclosed to Uber’s lawyers a letter from federal prosecutors that outlined a concerted effort by Uber to steal competitors’ trade secrets, Alsup erupted in court that the decision was “inexplicable,” adding that “it looks like you covered this up.”

At a hearing last year in which former Uber engineer Anthony Levandowski was accused of hiding facts in the case by downloading proprietary files from Waymo, before wiping his computer, Alsup warned Uber that he'd "never seen a record this strong in 42 years. So you're up against it."

Alsup said in court that he hoped an appeals court would see the "obfuscation this poor judge has been subjected to."

"You are hiding from me what the real facts are, and you want me in the dark," he told Uber’s lawyers. "You're asking me to rule on something that is amorphous and in the dark. Waymo's got a right to find out if this is true or not."

Alsup has no plans to retire. Asked if he plans to remain a judge, Alsup shot a look directly at the questioner and snapped back: “Yes. Why not? I love this job.”