SAN FRANCISCO—During the opening 15 minutes of a third day of hearings in Waymo v. Uber, US District Judge William Alsup blasted a Waymo lawyer for Waymo’s attempt to shield its former employees against Uber’s upcoming line of questioning.

The two companies are entangled not only in court via this high-stakes trade secrets lawsuit, but as several former Waymo employees now work at Uber, the startup now wants to depose some of its own employees to better understand how ephemeral messaging—apps such as Wickr or Telegram—was used during their tenure at Waymo. (Waymo is the self-driving car division at Alphabet, Google’s parent company, and Waymo was formerly part of Google.)

Last week, Judge Alsup raised concerns about Uber’s alleged use of ephemeral messaging as a way to avoid civil or criminal litigation as has been claimed by one of its former employees. Uber has now scheduled more depositions prior to a December 22 deadline as the case rapidly moves ahead toward a February 2018 trial.

During the Monday hearing, Uber attorney Arturo González said he wants to ask its current employees who previously worked at Waymo if there was "any written or unwritten policy at Google on the use of ephemeral messaging at work."

Waymo lawyer David Perlson explained that the company had "concerns about them going into Google policies, fishing for information that might involve attorney-client communications or things like that."

"We did say they could ask 'did you use ephemeral communications,' but we’re going to be providing the policies and what is in there," he said.

Judge Alsup wasn’t having it.

"This is a direct order and the public ought to be aware," he said. "I can’t stand it when Waymo or the other side wants it both ways. You have the court’s permission to ask not only the practice, but the policies about ephemeral communications when they were at Waymo and preserve those records where they obstructed your inquiry because they may be shown to the jury."

A few moments later, Judge Alsup was unequivocal, addressing Perlson. "You’re trying to blame them for ephemeral and they get to show it if you do it just as badly as you do it," he said.

González added that there was another set of questions that he wanted to ask. "Do you know of anybody else at Waymo or Google? Were you ever instructed to use it or not to use it?"

"You can ask that," Judge Alsup said.

Waymo v. Uber began back in February, when Waymo sued Uber and accused one of its own former employees, Anthony Levandowski, of stealing 14,000 files shortly before he left Waymo and went on to found a company that was quickly acquired by Uber. Levandowski, who refused to comply with his employer's demands during the course of this case, has since been fired. Uber has denied that it benefited in any way from Levandowski's actions.

The case will almost certainly have a huge impact on the future of autonomous vehicles and which companies will dominate the field. If the case makes it to trial and Uber is found liable, it could owe billions in damages.

Last week, the lawsuit was thrown into chaos as federal prosecutors suddenly—and highly unusually—sent a still-sealed November 22 letter to the judge about their investigation. Judge Alsup had previously referred possible criminal behavior by Uber to be examined by prosecutors. No criminal charges have been publicly filed.

However, in the wake of the federal investigation stemming in part from a newly revealed May 2017 demand letter sent on behalf of an ex-Uber employee, the judge has delayed the start of the trial to early February 2018.

Fair and square

The remainder of the hour-long hearing focused on whether numerous materials—particularly the May 2017 legal demand letter by the former Uber employee, Richard Jacobs—should have been produced earlier as part of the civil discovery process.

At one point, González pointed out to the judge that he had never heard the name "Richard Jacobs" until November 22, the day that Judge Alsup received a letter from federal prosecutors in San Francisco.

Uber’s outside counsel reiterated that both sides agreed to what search terms would be used across their various systems and that they followed it to a T.

At one point, Charles Verhoeven, Waymo’s lead attorney, stepped up to remind the court that the case, at its core, is about "misappropriation of trade secrets."

"This [Jacobs] letter accuses Uber of misappropriating Waymo’s trade secrets," he said. "The notion that somebody couldn’t figure out that this was relevant… is ludicrous."

Judge Alsup then instructed the special master in the case, John Cooper, to look into what documents should or should not have been produced and whether his instructions were followed. (After court adjourned, Judge Alsup issued a formal order related to this issue.) A special master is an outside non-party to the case who serves effectively as a judge's assistant and helps resolve intermediary issues. The judge quickly listed a number of other items that should be reviewed.

"I am going to consider those all together because it’s part of the common story, and the question that I am trying to figure out is: how much of that story should be told to the jury?" he said.

Alsup explained how he could imagine a situation during the upcoming trial where González would tell jurors that Uber turned over terabytes of data from its server, everything that it was supposed to.

"It’s a very good answer to come back and say: ‘Well they had an ephemeral communication system, a shadow system, a clandestine system where they destroyed everything after six minutes or six days,’" he said.

The veteran jurist explained to both sides that this case has been one of the most vexing he has ever had to adjudicate.

"Let’s take a different case where both sides were playing fair and square, then you get to decide the case solely on the merits," he said.

Then, he said, looking forward to how he would issue jury instructions, it still wasn’t clear what standard Waymo should have to prove. Does it need to prove that Uber merely had Waymo data that it wasn’t supposed to have, or must it to go further, and prove "unjust enrichment"?

"This case involves more than just Lev downloading 14,000 files," Judge Alsup said, addressing both the opposing sides and also the reporters and members of the public in attendance.

"Waymo has been given permission of use of trade secrets through any other means, including engineers that have come over who happen to remember the trade secret at Waymo and applies it in his or her work at Uber. So we have more ‘innocent’ avenues of the way in which trade secrets might have come into Uber’s workplace."

The final pretrial conference has been scheduled for January 30, 2018, with the trial set to begin Monday, February 5, 2018.

This story was updated at 2:16pm ET.