APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BOIES SCHILLER FLEXNER LLP

William A. Isaacson (Pro Hac Vice App. to be 

filed) 

DC Bar No. 414788, wisaacson@bsfllp.com

Karen L. Dunn (Pro Hac Vice App. to be 

filed) 

DC Bar No. 1002520, kdunn@bsfllp.com

Amy J. Mauser (Pro Hac Vice App. to be 

filed)

DC Bar No. 424065, amauser@bsfllp.com

1401 New York Avenue, N.W.

Washington, DC 20005

Telephone: (202) 237-2727

Facsimile: (202) 237-6131

BOIES SCHILLER FLEXNER LLP

Edward H. Takashima, SBN 270945

etakashima@bsfllp.com 

401 Wilshire Blvd, Suite 850 

Santa Monica, CA 90401

Telephone: (310) 752-2400

Facsimile: (310) 752-2490

Attorneys for Non-Party APPLE INC.

CRAVATH, SWAINE & MOORE LLP

Gary A. Bornstein (pro hac vice)

gbornstein@cravath.com

Yonatan Even (pro hac vice)

yeven@cravath.com

825 Eighth Avenue

New York, NY 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest, SBN 84065

rvannest@keker.com

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 676-2289

Facsimile: (415) 397-7188

MORGAN, LEWIS & BOCKIUS LLP

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com

101 Park Avenue

New York, NY 10178-0060

Telephone: (212) 309-6000

Facsimile: (212) 309-6001

Attorneys for Defendant 

QUALCOMM INCORPORATED

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

NON-PARTY APPLE INC. AND 

DEFENDANT QUALCOMM 

INCORPORATED’S JOINT STATUS 

REPORT

Courtroom: 7, 4th Floor

Judge: Hon. Nathanael M. Cousins 

IN RE QUALCOMM ANTITRUST 

LITIGATION

Case No. 5:17-md-02773-LHK-NMC

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 1 of 9
1

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Pursuant to the Court’s May 24, 2018 Order (ECF 755) Non-Party Apple Inc. (“Apple”) 

and Defendant Qualcomm Incorporated (“Qualcomm”) submit this Joint Status Report.

I. Apple’s Non-Responsive Log

A. Qualcomm’s Position

Out of the more than 188,000 entries on Apple’s log of documents that had originally 

been withheld as privileged but then recoded as not responsive, Qualcomm sent to Apple on 

April 15, 2018 a list of 20,720 entries that appeared, based on their subject lines, so likely to be 

responsive as to warrant re-review. After much back and forth, and based on the results of partial 

re-reviews (which showed that over 80% of Apple’s non-responsive calls selected by Qualcomm 

and over 30% selected by Apple were erroneous), Apple finally agreed on May 18 to re-review 

all of those entries. 

It is now June. Apple’s re-review continues, even though Apple was supposed to 

conclude its production in December, fact discovery concluded in March, and expert discovery is 

underway. Apple now proposes that it should take over a month to re-review these documents, 

such that it will complete the re-review by June 19, 2018, and that this significant delay does not 

prejudice Qualcomm. But Qualcomm has been prejudiced, and continues to be prejudiced, by 

Apple’s delay; under Apple’s schedule, Apple would not produce the responsive documents until 

10 days before Qualcomm’s expert reports are due. Further time would pass until Apple 

produces privilege logs and Qualcomm is able to assess, and potentially challenge, Apple’s 

decision to continue to withhold some of the now-deemed-responsive documents (Apple 

continues to withhold as privileged 195 out of the 555 documents it found to be responsive as a 

result of its prior responsiveness re-review of 1,000 documents). In addition, once the re-review 

of these 20,720 entries is complete, the results may warrant further re-reviews, making it all the 

more important for this current round to be delayed no further. Qualcomm respectfully requests 

the Court order this re-review to be completed by June 11, 2018.

B. Apple’s Position

Apple is re-reviewing the 20,720 remaining entries Qualcomm identified from Apple’s 

Non-Responsive Log. Apple anticipates that its review should be complete on Tuesday, June 

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 2 of 9
2

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19—just over one week after the deadline proposed by Qualcomm. After that review, Apple will 

meet and confer with Qualcomm to discuss whether further re-review is necessary. As to 

Qualcomm’s prejudice point, it has identified none requiring an artificial shortening of the review 

process. Apple produced downgraded items from the first 1,000 of the 20,720 entries on May 11. 

This included the five hundred entries chosen by Qualcomm from the 20,720—presumably 

because they were the highest-priority items. Of the 500 high-priority document families 

identified by Qualcomm, Apple produced around 70. It is unclear how, if at all, anything in that 

production materially added to what Qualcomm had already received from Apple (approximately

4.1 million documents in this case).

1

II. Apple’s Re-Review of 1,000 Privilege Log Entries

On April 24, Apple served a revised privilege log pursuant to the Court’s March 30 Order. 

(ECF 664.) On April 26 and April 30, Apple produced all or portions of around 274 document 

families that it had de-designated (in whole or in part) as a result of its re-review. On May 18, 

Qualcomm identified 36 document families that remained on the log that it indicated it may wish 

to submit for in camera review and requested to meet and confer. Apple de-designated six of the 

identified documents and produced them on May 31 (as well as certain other attachments to 

documents Qualcomm identified). Apple also produced other documents in redacted form and 

provided a revised log correlating these productions to the contested log entries. Qualcomm is 

reviewing the documents Apple produced on May 31. Once the parties conclude meeting and 

conferring about these document families, Qualcomm will advise the Court if there are any 

families for which it requests an in camera review. 

III. Qualcomm’s Request for Apple to Re-Review Approximately 3,800 Log Entries 

Withheld on Common Interest Grounds

A. Qualcomm’s Position

Qualcomm contests Apple’s assertion of a common interest to withhold at least 3,921 

documents exchanged between Apple and third parties. To test Apple’s common interest claim in 

 

1 Qualcomm states above that Apple chose 500 entries for the review. The selections were 

random selections.

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 3 of 9
3

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

a targeted way, Qualcomm identified 44 of those 3,921 documents for re-review. As Qualcomm 

stated in the May 18 Status Report, Qualcomm selected those documents not as a compromise 

intended to waive its challenge of Apple’s assertion with respect to the other 3,877 documents 

Apple is withholding, but rather as a workable approach taken “with the expectation that Apple 

would apply the Court’s guidance on the issues relevant to these documents to reassess the 

remaining claims” of common interest. (May 18 Status Report at 2.) On the day the status report 

was filed, Apple withdrew its assertion of common interest over 37 of the 44 documents 

Qualcomm had identified. Thus, in the May 18 Status Report, given Apple’s sudden major 

revision to its application of the common interest doctrine, Qualcomm requested that Apple 

“apply these principles to its remaining claims of common interest, relating to other documents 

that were not among the 44 that Qualcomm targeted.” (May 18 Status Report at 1-2.) Qualcomm 

repeated this request at the May 24, 2018 hearing (5/24 Hrg. Tr. 67:21-68:5), and again in writing 

on May 27 and May 29, 2018 (Apple did not respond to this correspondence).

Despite its reversal rate of over 85%, Apple now continues to resist any further re-review 

of the documents it has withheld pursuant to a claim of common interest. To the extent Apple is 

waiting to begin its re-review until after the Court rules on the seven documents that are the 

subject of the June 1, 2018 joint discovery statement, that delay is unwarranted; Apple could 

easily withdraw its common interest assertion over all documents that are similar to the 37 

documents on which it reversed its position on May 18 without the need for further guidance 

from the Court. 

More important, to the extent Apple intends to oppose a complete re-review of the 

remaining common interest documents, that refusal is unjustified. Contrary to Apple’s assertion 

below that all remaining documents are “less important” than the seven documents briefed on 

June 1, the remaining documents include over 600 documents that appear to relate to Qualcomm 

and over 50 more documents that appear to have been withheld based on the purported common 

interest agreements with Intel and Samsung about which the Court has already expressed 

skepticism. (5/24/2018 Hrg. Tr. 73:19-23.) As the Court noted, the 44 documents Qualcomm 

selected “may be the tip of the iceberg”. (Id. at 73:24-74:3.) No matter how the Court resolves 

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 4 of 9
4

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the outstanding dispute over the seven documents at issue, Apple should still re-review all of the 

remaining common interest documents—many of which are similar to those on which it has 

already reversed its calls. 

B. Apple’s Position

At the May 24 status conference Apple suggested that Qualcomm’s request is 

unreasonable at this time, and that as a first step to resolving this dispute there should be fuller 

briefing on the issue of the privileged status of the seven specific privileged documents discussed 

in Apple and Qualcomm’s last Joint Status Report. (5/24/18 Tr. at 71:23-72:11.) The Court then 

permitted the parties to submit further briefing last Friday, which they did. (Id. at 74:4-7.) 

Nothing has changed since that hearing.

2

Apple continues to maintain that the parties should await the Court’s privilege rulings in 

order to ascertain any issues that need to be addressed with these other 3,800 documents 

referenced by Qualcomm—and also in order to prevent potential multiple re-reviews of the same 

documents. After the Court rules on the pending dispute, the parties can meet and confer to 

discuss the proportionality and reasonableness of Qualcomm’s request in light of the Court’s 

decision.3

As a background, the privilege dispute briefed last Friday involves seven of the 

documents that, according to Qualcomm, it selected (among other documents) “in an effort to be 

targeted,” (id. at 72:18-24)—an effort that Apple believes the Court rightly assumed was done to 

“prioritize[] the things which are most important to [Qualcomm].” (Id. at 75:7-8.) Those 

apparently-prioritized documents consist of: (1) communications about potential internal rules 

and articles of association for “Friends of FRAND” (a potential non-profit association); (2) WGA 

 

2

Three days later—on the Sunday after the hearing—Qualcomm sent a letter repeating the 

request it made in Court, to which Apple had already responded. Qualcomm’s proposed 

“compromise” in the letter was simply that Apple “begin its re-review immediately” in order to 

supposedly “narrow” any disputes. This is, of course, no compromise at all—it is the same 

demand Apple responded to at the hearing. 

3 Qualcomm does not dispute that if Apple reviews the documents now, Qualcomm will seek 

another re-review based upon any ruling by the Court in its favor on the common interest 

question.

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 5 of 9
5

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

communications about a potential letter to Qualcomm responding to Qualcomm’s request for a 

mediation with the WGA; and (3) a discussion among counsel about the selection of an expert for 

a response in the KFTC’s investigation of Qualcomm. It is difficult to see how any of these 

documents are particularly relevant to the claims or defenses in this case. And more importantly, 

it is difficult to imagine the less-important entries that Qualcomm passed over when selecting 

these documents being relevant. That said, Apple is willing to meet and confer on this issue after 

the Court’s ruling on the seven disputed documents. 

IV. Qualcomm’s Complaint about Alleged Discrepancies Between Apple’s December 

2017 Privilege Log and Subsequent Logs and Productions

A. Qualcomm’s Position

In comparing the entries from Apple’s original privilege log against Apple’s subsequent 

Amended Privilege Log, Cross-Reference Log and Non-Responsive Log, Qualcomm discovered 

that there are roughly 6,000 entries that are not accounted for in these subsequent logs. 

Qualcomm raised the issue in the May 18 Joint Status Report. On June 2, 2018, Apple’s counsel 

advised that technical difficulties prevented Apple from comparing the entries across its various 

logs and requested a list of the unaccounted for documents. Qualcomm will send such a list, and 

the parties will continue to meet and confer as required. 

B. Apple’s Position

In the May 18 Joint Status Report, Qualcomm raised for the first time a “concern[] that 

there are discrepancies based on the information Apple has provided thus far” in its logs. (ECF 

745-4 at 16.) On May 23, the parties scheduled a meet and confer to discuss another issue. At 

the end of the call, Qualcomm counsel suggested that when they compared Apple’s December 

2017 privilege log to the subsequent privilege logs, non-responsiveness logs, and cross-reference 

logs (cross-referencing productions of de-designated documents to the December log), there 

appeared to be 2,000 or so that are unaccounted for. Apple attempted to look into the issue, but 

encountered technical difficulties attempting to run Excel functions comparing the hundreds of 

thousands of entries in the logs. Apple has asked Qualcomm to provide it with the list of the log 

entries it has referenced so that it can follow up on this issue. 

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 6 of 9
6

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dated: June 4, 2018 Respectfully submitted,

By: /s/ Edward H. Takashima

William A. Isaacson 

wisaacson@bsfllp.com

Karen L. Dunn 

kdunn@bsfllp.com

Amy J. Mauser

amauser@bsfllp.com

BOIES SCHILLER FLEXNER LLP

1401 New York Avenue, N.W.

Washington, DC 20005

Telephone: (202) 237-2727

Facsimile: (202) 237-6131

Edward H. Takashima 

etakashima@bsfllp.com 

BOIES SCHILLER FLEXNER LLP

401 Wilshire Blvd, Suite 850 

Santa Monica, CA 90401

Telephone: (310) 752-2400

Facsimile: (310) 752-2490

Attorneys for Non-Party APPLE INC.

By: /s/ Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza 

825 Eighth Avenue

New York, NY 10019-7475

Tel: (212) 474-1000

Fax: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

Robert A. Van Nest 

Eugene M. Paige 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Tel: (415) 676-2289 

Fax: (415) 397-7188 

rvannest@keker.com 

abhansali@keker.com 

epaige@keker.com 

Richard S. Taffet

Willard K. Tom

Donn P. Pickett 

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 7 of 9
7

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Geoffrey T. Holtz 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1126 

Tel: (415) 442-1000 

Fax: (415) 442-1001 

richard.taffet@morganlewis.com

willard.tom@morganlewis.com 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 8 of 9
8

APPLE AND QUALCOMM’S JOINT STATUS REPORT

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILER’S ATTESTATION

I, Edward H. Takashima, am the ECF user whose identification and password are being 

used to file this Joint Status Report. In compliance with Civil Local Rule 5-1(i)(3), I hereby attest 

that the signatories on this document have concurred in this filing.

/s/ Edward H. Takashima

Edward H. Takashima

Case 5:17-cv-00220-LHK Document 760 Filed 06/04/18 Page 9 of 9