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NON-PARTY BROADCOM’S MOTION TO SEAL 5:17-CV-00220-LHK-NMC 

Amanda Tessar (admitted pro hac vice) 

ATessar@perkinscoie.com 

PERKINS COIE LLP 

1900 Sixteenth Street, Suite 1400 

Denver, CO 80202-5255 

Telephone: 303.291.2300 

Facsimile: 303.291.2400 

Sarah E. Stahnke, California Bar #264838 

SStahnke@perkinscoie.com 

PERKINS COIE LLP 

3150 Porter Drive 

Palo Alto, CA 94304-1212 

Telephone: 650.838.4489 

Facsimile: 650.838.4350 

ATTORNEYS FOR NON-PARTY

BROADCOM CORPORATION

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

Defendant. 

Case No. 5:17-cv-00220-LHK-NMC 

JURY TRIAL DEMANDED 

NON-PARTY BROADCOM’S 

ADMINISTRATIVE MOTION TO SEAL 

(A) LIMITED PORTIONS OF THE SCOTT 

MCGREGOR DEPOSITION TESTIMONY 

TO BE PLAYED AT TRIAL AND (B) 

TRIAL EXHIBIT JX0095 

Case 5:17-cv-00220-LHK Document 1120 Filed 01/04/19 Page 1 of 10
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NON-PARTY BROADCOM’S MOTION TO SEAL -1- 5:17-CV-00220-LHK-NMC 

 Pursuant to Civil Local Rule 7-11, Non-Party Broadcom Corporation (“Broadcom”) 

respectfully submits this Administrative Motion to Seal limited portions of Broadcom’s former 

CEO’s (Scott McGregor) deposition testimony and portions of a single exhibit, JX0095, that 

Plaintiff Federal Trade Commission (“FTC”) and/or Defendant Qualcomm Incorporated 

(“Qualcomm”) have indicated that they intend to introduce at trial. This motion is directed to 

only a small portion of the Broadcom material that the parties have indicated an intent to use at 

trial. 

 Broadcom is a non-party to this case, but in response to broad subpoenas from the FTC 

and Qualcomm, Broadcom produced hundreds of thousands of pages of documents in this 

matter. As explained below and in the attached declaration of Patrick Henderson, certain 

materials that the parties seek to use and introduce at trial contain competitively-sensitive 

business information. Broadcom risks harm to its business and customer relationships if this 

information were to be made public. Accordingly, Broadcom respectfully requests that the Court 

grant Broadcom’s motion to seal and order that the information in the chart below be sealed. 

 At the Court’s direction, on December 17, 2018, the FTC and Qualcomm provided 

Broadcom lengthy lists of Broadcom documents and a large volume of deposition testimony that 

they indicated they “may” introduce at trial. Despite requests from Broadcom, and despite the 

fact that the volume of information initially designated was so large that it was not reasonable to 

believe that it would all be used at trial, the parties would not initially narrow the list of 

information identified. Therefore, on December 27, 2018, Broadcom provided the FTC and 

Qualcomm with the list of the testimony and exhibits (created from the parties’ own lists of 

materials that they were indicating that they might use at trial) that Broadcom intended to seek to 

have sealed and requested that the FTC and Qualcomm provide their positions on whether they 

would oppose a motion to seal this material. On January 2, 2019, Broadcom conferred with the 

FTC and Qualcomm, but both stated that they were not prepared to provide a position. Later, the 

FTC and Qualcomm finally provided a narrowed list of the testimony they actually intend to play 

at trial (leaving Broadcom only one business day to get its declaration signed and this motion 

filed) and narrowed the exhibits on their original list to just one document. Broadcom again 

Case 5:17-cv-00220-LHK Document 1120 Filed 01/04/19 Page 2 of 10
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NON-PARTY BROADCOM’S MOTION TO SEAL -2- 5:17-CV-00220-LHK-NMC 

requested the parties’ position on this motion, since it was then able to correspondingly narrow 

the scope of this motion to seal. The FTC, for its part, stated that it opposes this motion. And 

Qualcomm seemingly did not even look at the materials subject to this motion such that it could 

take a comprehensible position, stating only that “We do not oppose sealing with respect to 

agreements or their terms. But with respect to business documents and communications, 

evidence older than 36 months should presumptively not be sealed” and beyond that “Qualcomm 

does not take any position.” Qualcomm would not, however, explain how this position related to 

the information Broadcom seeks to seal here. 

I. LEGAL STANDARD

 Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court 

documents for the protection of “a trade secret or other confidential research, development, or 

commercial information.” Fed. R. Civ. P. 26(c)(1)(G). In addition, the United States Supreme 

Court has acknowledged that sealing may be justified to prevent judicial documents from being 

used “as sources of business information that might harm a litigant’s competitive standing.” 

Nixon v. Warner Comm’n, Inc., 435 U.S. 589, 598 (1978); In re Elec. Arts, Inc., 298 Fed. 

Appx. 568, 569 (9th Cir. 2008) (unpublished) (quoting Nixon, 435 U.S. at 598). 

Civil Local Rule 79-5 provides that documents, or portions thereof, may be sealed if a 

party “establishes that the documents, or portions thereof, are privileged, protectable as a trade 

secret or otherwise entitled to protection under the law.” Civ. L.R. 79-5(b). A party seeking to 

seal a document must submit “narrowly tailor[ed]” requests and overcome the “strong 

presumption in favor of access” that applies to court documents other than those that are 

traditionally kept secret. Ctr. For Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th 

Cir. 2016). For filings that are “more than tangentially related to the underlying cause of action,” 

the declarations must set forth the “compelling reasons supported by specific factual findings” 

which “outweigh the general history of access and the public policies favoring disclosure,” 

Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006) (citation 

omitted). 

Counsel for the FTC has informed Broadcom that the Court has ordered that the 

Case 5:17-cv-00220-LHK Document 1120 Filed 01/04/19 Page 3 of 10
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NON-PARTY BROADCOM’S MOTION TO SEAL -3- 5:17-CV-00220-LHK-NMC 

“compelling reasons” standard applies to information sought to be sealed at trial. Further, counsel 

for the FTC also stated that, at a pretrial conference on December 13, 2018, “Judge Koh [] 

acknowledged that some portion of the pre-recorded deposition testimony to be played at trial may 

require closed sessions” and that the Court also “indicate[d] a willingness to have the parties shield 

from public view particularly sensitive commercial information meeting a ‘compelling reason’ 

sealing standard, by turning off public monitors and formulating examination questions so as to avoid 

public disclosure.” See Dckt. 1072 at 7, 10. 

II. FACTUAL BACKGROUND

 Non-party Broadcom Corporation is an American semiconductor company that makes 

products for the wireless and broadband communication industry. Henderson Decl., ¶4. 

Broadcom competes directly with Qualcomm in many fields. Id. As relevant to this case, 

Broadcom used to have a baseband processor business, but it exited that business in 2014. Id. 

Although Broadcom is no longer in the baseband processor business, Broadcom has relationships 

with many of its baseband processor customers for other product lines and continues to service 

them today in other technology fields. Id. Broadcom’s customer relationships and dealings with 

these customers are of the utmost importance to Broadcom. Id.

 In connection with this case, both the FTC and Qualcomm served subpoenas on 

Broadcom seeking a wide variety of information about Broadcom’s business in 2014, including 

but not limited to the baseband processor business. Broadcom cooperated with the subpoenas 

and ultimately produced hundreds of thousands of pages of documents to the FTC and 

Qualcomm. These documents, as discussed in greater detail below, included highly-sensitive 

materials, including Board of Directors minutes, Board of Directors presentations, financial 

information, and customers communications. Broadcom also made its former CEO, Scott 

McGregor, and its former Executive Vice President and General Manager, Robert Rango, 

available for depositions. In their depositions, Mr. McGregor and Mr. Rango discussed many of 

these highly-sensitive topics and materials. 

 Consistent with the mandate of the Court’s Pretrial Conference Order dated December 

13, 2018 (Dckt. 1003), the information that Broadcom seeks to seal is: 

Case 5:17-cv-00220-LHK Document 1120 Filed 01/04/19 Page 4 of 10
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NON-PARTY BROADCOM’S MOTION TO SEAL -4- 5:17-CV-00220-LHK-NMC 

Item Whose 

Confidential 

Information 

Where Information 

Appears 

Standard 

For Sealing 

Henderson 

Decl. 

Deposition 

Transcript of 

Scott 

McGregor

Broadcom 17:4-18; 19:3-7; 26:19-27-5; 

173:20-175:21; 184:9-24; 

237:18-239:25. 

Compelling 

reasons 

¶¶8-13 

JX0095 Broadcom BCRM000251-258, 

BCRM000260, 

BCRM000277-292, 

BCRM000297-307 

Compelling 

reasons 

¶¶6-7 

 For the Court’s convenience, the relevant deposition testimony is attached to Mr. 

Henderson’s declaration as Exhibit A, and JX0095 is attached to Mr. Henderson’s declaration as 

Exhibit B. 

III. ARGUMENT

 The FTC and Qualcomm have indicated they intend at trial on Monday, January 7th to 

present and introduce the videotaped testimony of many portions of the deposition transcript of 

Mr. McGregor (Broadcom’s former CEO), as well as an exhibit used at that deposition that is the 

Broadcom Board of Directors minutes for a special Board session. Accordingly, Broadcom 

respectfully moves the Court to keep sealed specific, limited portions of that deposition 

testimony of Mr. McGregor and trial exhibit JX0095 (which was deposition exhibit QX1002). 

With this motion, Broadcom provides a declaration from Patrick Henderson of Broadcom to 

support its request to seal these limited portions. 

 As discussed in detail below and in Mr. Henderson’s declaration, the testimony and 

portions of the Board exhibit that Broadcom seeks to seal contain Broadcom’s confidential and 

sensitive business strategy and analyses, including financial and customer information, which are 

not publicly known and are maintained in confidence by Broadcom. With respect to customer 

information particularly, it is important to bear in mind that the customers involved are some of 

Broadcom’s largest and most important customers, who Broadcom works with today for multiple 

product lines. If the sensitive information that is subject to this motion were released to the 

public, moreover, Broadcom’s competitors could gain insight into Broadcom’s internal business 

operations and strategy and it could hinder Broadcom’s ability to compete in the marketplace. 

Case 5:17-cv-00220-LHK Document 1120 Filed 01/04/19 Page 5 of 10
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NON-PARTY BROADCOM’S MOTION TO SEAL -5- 5:17-CV-00220-LHK-NMC 

Because the Declaration of Mr. Henderson discusses the specifics of the information sought to be 

sealed, Broadcom requests that his declaration be sealed as well. 

A. JX0095 

 Broadcom respectfully requests that the Court seal the indicated portions of JX0095 (i.e., 

deposition exhibit QX1002, see Table above for relevant portions) from public view at trial by

not displaying those portions on the public terminals in the courtroom and by not making any 

copy of those portions or allowing any copy of those portions to be made in any way available to 

the public. JX0095 is a copy of minutes from a Broadcom Board of Directors special meeting. 

It reveals Broadcom information that is regularly considered confidential by this Court, 

including: business strategy, customer design wins and customer-related strategy, strategic 

options for various parts of Broadcom’s business, financial information including forecasts, 

pricing, and revenue, potential M&A transactions, and discussion of strategic customer 

relationships and goals for those relationships.1

 This kind of information is kept confidential by 

Broadcom and not publicly disclosed. Henderson Decl. ¶¶6-7. Broadcom’s competitors and 

customers could use this information against Broadcom if it were publicly disclosed. For 

example, if customers became aware of Broadcom’s strategy related to M&A targets, it could 

attempt to interfere with those acquisitions. Id. Likewise, if Broadcom’s competitors know 

Broadcom’s confidential financial information about profit margins, it could use that information 

to its advantage to undercut Broadcom in meetings with Broadcom’s customers. Id. Similarly, if 

Broadcom’s competitors knew Broadcom’s view of its most strategic customer and plans for 

those relationships, it could interfere in Broadcom’s dealings with those customers and cause 

Broadcom competitive harm. Henderson Decl. Id. 

 This Court regularly seals this kind of competitive business decision-making information. 

See FTC v. DirecTV, Inc., 15-CV-01129-HSG, 2016 WL 7386133, at *1 (N.D. Cal. Dec. 21, 

2016) (granting motion to seal document with containing a “discussion of internal processes, 

 

1

 Broadcom redacted some portions of JX0095 before production due to privilege and 

relevance concerns. Many of the remaining portions are highly sensitive as well and should 

also be shielded from public eye. 

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NON-PARTY BROADCOM’S MOTION TO SEAL -6- 5:17-CV-00220-LHK-NMC 

data tracking tools, web analytics strategy, internal research strategy, and internal operations and 

business structure”); FTC v. DirecTV, Inc., 15-CV-01129-HSG, 2016 WL 5339797, at *2 (N.D. 

Cal. Sept. 23, 2016) (granting motion to seal documents that “contain sensitive business 

information regarding ... Defendant’s development strategy and operations”); Ehret v. Uber 

Techs., Inc., 14-CV-00113-EMC, 2015 WL 12977024, at *3 (N.D. Cal. Dec. 2, 2015) (granting 

motion to seal exhibits that “concern internal discussions about Uber’s proprietary business 

strategy, including pricing and marketing decisions”). Likewise, financial information of the 

type disclosed here is also regularly sealed. See Lawson v. Grubhub, Inc., 15-CV-05128-JSC, 

2017 WL 2951608, at *9 (N.D. Cal. July 10, 2017) (“pricing, profit, and customer usage 

information kept confidential by a company that could be used to the company’s competitive 

disadvantage” may present compelling reasons to seal) (citation omitted); Johnstech Int’l Corp. 

v. JF Microtechnology SDN BHD, 14-CV-02864-JD, 2016 WL 4091388, at *2 (N.D. Cal. Aug. 

2, 2016) (granting motion to file under seal “detailed sales information for customers that could 

be used to the company’s competitive disadvantage”). 

B. McGregor Testimony 

Broadcom also seeks to seal the following portions of the McGregor Testimony, 

discussed by page/line number below. Broadcom requests that these portions of the deposition 

testimony be presented in closed sessions of the Court not open to the public. These excerpts are 

only a fraction of what the FTC and Qualcomm intend to present in their entirety and are limited 

to those that would cause Broadcom competitive harm.2

17:4-18; 19:3-7; 26:19-27:5; and 237:18-239:25 

Broadcom seeks to seal 17:4-18, 19:3-7, 26:19-27:5, and 237:18-239:25 of the McGregor 

testimony. These portions of the deposition testimony discuss or, in most instances, directly 

quote from the Board minutes in JX0095. As discussed above and in Mr. Henderson’s 

declaration, the information in this exhibit, including the specific portions referenced during the 

 

2

 Even if the Court denies Broadcom’s motion to seal with respect to these portions of the 

deposition testimony, Broadcom asks that it maintain the portions of JX0095 that are subject 

to this motion under seal and not display them on the Court monitors. 

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NON-PARTY BROADCOM’S MOTION TO SEAL -7- 5:17-CV-00220-LHK-NMC 

deposition testimony (Broadcom’s internal analysis of reasons for exiting the baseband processor 

business), is highly confidential and could cause harm to Broadcom if publicly known. 

Henderson Decl. ¶¶8-10, 13. Such competitive business decision-making information should be 

sealed, as should the testimony relating to it. See FTC v. DirecTV, Inc., 2016 WL 7386133, at 

*1; FTC v. DirecTV, Inc., 2016 WL 5339797, at *2; Ehret, 2015 WL 12977024, at *3. 

173:20-175:21 

 Broadcom seeks to seal line 20 of page 173 to line 21 of page 175 of the McGregor 

testimony. In this testimony, Mr. McGregor discusses Broadcom’s relationship with two 

specific customers, both who remain Broadcom customers today. Henderson Decl. ¶11. The 

testimony describes Broadcom’s view of those customer relationships, their strategic value to 

Broadcom, and how Broadcom leverages its relationships with these customers to support its 

business. This information could be harmful to Broadcom if publicly disclosed. Id. 

 This Court regularly seals this kind of non-public customer information that could be 

used to the disclosing party’s competitive disadvantage. See H.Q. Milton, Inc. v. Webster, 17-

CV-06598-PJH, 2017 WL 5625929, at *1 n.1 (N.D. Cal. Nov. 22, 2017) (granting motion to seal 

“trade secret information, including customer names or pricing information”); Lawson, 2017 WL 

2951608, at *9 (“customer usage information kept confidential by a company that could be used 

to the company’s competitive disadvantage” may present compelling reasons to seal) (citing 

Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1226 (Fed. Cir. 2013)); FTC v. DirecTV, Inc., 

2016 WL 5339797, at *2 (granting motion to seal documents that “contain sensitive business 

information regarding customer feedback”); Johnstech Int’l Corp., 2016 WL 4091388, at *2 

(granting motion to seal “product-specific customer data,” information that “identifies customers 

targeted by [Plaintiff]”); Dynetix Design Sols. Inc. v. Synopsys Inc., C 11-CV-05973 PSG, 2013 

WL 1366046, at *1 (N.D. Cal. Apr. 3, 2013) (granting motion to seal “documents [that] contain 

customer information and are kept highly confidential”). 

184:9-24 

 Finally, Broadcom seeks to seal lines 9 through 24 of page 184 of the McGregor 

testimony. These lines discuss Broadcom’s costs in the baseband processor business, how it 

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NON-PARTY BROADCOM’S MOTION TO SEAL -8- 5:17-CV-00220-LHK-NMC 

went about developing chips for this business, and how Broadcom viewed a particular customer 

relationship. This information could be harmful to Broadcom if publicly disclosed. Henderson 

Decl. ¶12. 

IV. CONCLUSION

 For these reasons, Broadcom respectfully requests that the Court seal the information 

described in the chart above. 

Dated: January 4, 2019 

Respectfully submitted, 

 /s/ Amanda Tessar___________________ 

Amanda Tessar (admitted pro hac vice) 

ATessar@perkinscoie.com 

PERKINS COIE LLP 

1900 Sixteenth Street, Suite 1400 

Denver, CO 80202-5255 

Telephone: 303.291.2357 

Facsimile: 303.291.2457 

Sarah E. Stahnke, California Bar #264838 

SStahnke@perkinscoie.com 

PERKINS COIE LLP 

3150 Porter Drive 

Palo Alto, CA 94304-1212 

Telephone: 650.838.4489 

Facsimile: 650.838.4350 

ATTORNEYS FOR NON-PARTY

BROADCOM CORPORATION

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NON-PARTY BROADCOM’S MOTION TO SEAL -9- 5:17-CV-00220-LHK-NMC 

PROOF OF SERVICE 

I, Kate Smith, declare: 

I am a citizen of the United States and employed in Santa Clara County, California. I am 

over the age of eighteen years and not a party to the within-entitled action. My business address 

is 3150 Porter Drive, Palo Alto, California 94304-1212. 

On January 4, 2019, I served a true and correct unredacted copies of the Declaration of 

Patrick Henderson and Exhibits A and B to Non-Party Broadcom’s Motion to Seal by 

electronically mailing it to the following addresses: 

Kenneth Hugh Merber 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

202-326-3551 

Fax: 202-326-3496 

Counsel for Plaintiff 

Federal Trade Commission

kmerber@ftc.gov

Geoffrey Holtz 

Morgan Lewis & Brockius LLP 

101 Park Avenue 

New York, NY 10178-0061 

Counsel for Defendant 

Qualcomm Incorporated 

gholtz@morganlewis.com

I declare under penalty of perjury under the laws of the United States of America that the 

above is true and correct. 

Executed on January 4, 2019, at Palo Alto, California. 

/s/ Kate Smith 

Kate Smith 

Case 5:17-cv-00220-LHK Document 1120 Filed 01/04/19 Page 10 of 10