NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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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. 

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.’S 

RESPONSE TO QUALCOMM’S 

SUBMISSION REGARDING APPLE’S 

COMPLIANCE WITH PRODUCTION 

DEADLINES 

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 508 Filed 01/19/18 Page 1 of 7
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NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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Pursuant to the Court’s January 5, 2018 Order (ECF 450), Non-Party Apple Inc. 

(“Apple”) hereby submits this response to Qualcomm Incorporated’s (“Qualcomm”) January 12, 

2018 submission (ECF 483) concerning the calculation of the sanction imposed by the Court on 

December 21, 2017 (ECF 421). 

Apple completed its production of responsive non-privileged documents from the 1.3 

million documents that were in Apple’s quality control process as of December 15, 2017 on 

December 27, 2017. As a result, the monetary sanctions set by the Court should terminate as of 

December 27, 2017. 

Qualcomm tellingly has not offered any factual basis for a later termination date. Instead, 

it “questions” whether Apple’s production of documents “constitutes full compliance with the 

letter and spirit of the December 21 Order.” (ECF 483 at 1.) Those “questions,” in turn, are based 

on nothing more than suspicion; Qualcomm’s misunderstandings about Apple’s quality control 

process; unfounded conjecture concerning the number of responsive, non-privileged documents 

Qualcomm thinks Apple should have; and privilege log issues that are already being addressed or 

are the subject of meet and confers—and that in any case the Court instructed were not to be the 

subject of these submissions. (ECF 467 at 12:19-12:23 (“I’m not looking to, for example, to 

bring in the privilege log disputes into this sanctions issue because I want you to confer with each 

other before we have any discussion about sanctions.”)). Those are inadequate grounds to justify 

the fishing Qualcomm desires, in its attempt to burden Apple further, rather than proceeding with 

substantive fact discovery. 

Qualcomm’s demand for a declaration should be denied, and the Court should conclude 

that December 27, 2017 is the appropriate end date for its monetary sanction. 

I. Background 

At the December 20, 2017 discovery hearing, Apple identified three principal groups of 

documents that had not yet been produced: (1) approximately 1.3 million documents that had 

gone through initial manual review, and were in the quality control process; (2) approximately 

215,000 documents that had not yet been reviewed; and (3) approximately 1 million documents 

that had been identified as privileged or highly likely to be privileged. (ECF 424 at 21:25-23:5; 

Case 5:17-cv-00220-LHK Document 508 Filed 01/19/18 Page 2 of 7
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NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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see ECF 403 at 1.) The Court concluded that Apple had not substantially completed its document 

production as of December 15, 2017, and sua sponte imposed a monetary sanction of $25,000 per 

day, running from December 15 through the production of responsive, non-privileged documents 

from the population of 1.3 million documents in quality control. (ECF 421 at 2-3; ECF 424 at 

57:16-61:22.) 

With respect only to the 1.3 million documents in the quality control process, the Court 

ordered a new production deadline of December 29, 2017 (ECF 424 at 61:5-62:15) and stated: “I 

want you to complete your review by the 29th and produce the stuff that’s responsive. But if you 

can’t get it done by the 29th, then my order is, yes, you should produce whatever you’ve got 

subject to clawback.”1 (Id. at 62:12-62:15.) 

In its December 29, 2017 joint submission with Qualcomm, Apple confirmed that it had 

completed its production of responsive non-privileged documents from the 1.3 million documents 

in quality control. (ECF 431 at 1.) Qualcomm confirmed it received that production on 

December 27, 2017. (Id.) Accordingly, Apple submits that the Court’s monetary sanction should 

end on December 27, 2017. (Id.) 

II. Apple’s Document Production 

Qualcomm first “questions” whether Apple has complied with the Court’s December 21 

Order because it believes it should have received more documents than it has from Apple. 

Qualcomm’s concerns on this point are entirely unfounded. 

A. Total Volume of Documents from the 1.3 Million in Quality Control 

Apple has produced approximately 280,000 responsive, non-privileged documents from 

the population of 1.3 million documents in quality control as of December 15, 2017. Qualcomm 

does not dispute that, but believes that the “discrepancy” between the number of documents 

produced and the larger population of documents in quality control is “surprisingly large.” (ECF 

483 at 1.) This argument is without merit. 

 

1

 Qualcomm erroneously characterizes this as an instruction from the Court that Apple was to “err 

on the side of over-producing.” (ECF 483 at 1.) 

Case 5:17-cv-00220-LHK Document 508 Filed 01/19/18 Page 3 of 7
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NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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First, there is no “discrepancy.” As Apple explained to Qualcomm during the meet and 

confer process, Apple’s practice is to put virtually all documents that have gone through an initial 

review through a quality control process, including non-responsive and privileged documents. In 

this case, a substantial number of documents in quality control were non-responsive and/or 

privileged. That is hardly surprising given that the search terms set for Apple were broad, 

fourteen of Apple’s forty-five custodians are attorneys, and documents concerning several of the 

topics covered by Qualcomm’s subpoenas, such as patent licensing and FRAND analyses, are 

often subject to the attorney-client privilege or work product protection. 

Second, Qualcomm alleges fault with the fact that Apple included non-responsive 

documents in “the 1.3 million figure disclosed to the Court.” (Id. at 2.) This perfectly illustrates 

Qualcomm’s dealings with Apple in discovery. The documents in quality control included some 

documents that had been coded as non-responsive on initial review but could be re-coded as 

responsive during the quality control process. If Apple had not accounted for those documents in 

its submissions to the Court, Qualcomm surely would have accused Apple of misconduct. 

Instead, somehow, Apple’s transparency is grounds for suspicion in Qualcomm’s eyes. 

Third, Qualcomm notes that in Apple’s November 17, 2017 status report, Apple indicated 

that it was “in the process of producing approximately 1.1 million documents” but that Apple 

subsequently produced “only” approximately 689,000 documents. (Id.) Qualcomm also notes 

that as of November 17, approximately 695,000 documents were in quality control, and claims it 

only received approximately 103,000 documents from that population. (Id. at 3.) These are nonissues. As Apple has previously explained, after the Court’s November 15, 2017 ruling regarding 

Apple’s proposed use of CAL, Apple identified approximately 1.1 million potential documents 

for immediate production, but subsequently determined that only a subset of those documents 

could be produced without manual review. (ECF 327 at 1.) Here, on the other hand, Apple 

produced responsive non-privileged documents after manual review. And, for the reasons 

discussed above, there is nothing surprising or unusual about the fact that many of the documents 

in quality control as of November 17 were non-responsive or privileged. 

Case 5:17-cv-00220-LHK Document 508 Filed 01/19/18 Page 4 of 7
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NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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B. Srouji and Watrous Documents 

Qualcomm also believes—based on nothing more than speculation and suspicion—that it 

should have received more documents for two custodians, BJ Watrous and Johny Srouji. The 

numbers Qualcomm identifies, however, are not a cause for concern. 

Apple has produced or logged as privileged approximately 19,300 documents from the 

custodial files of BJ Watrous, Apple’s Vice President and Chief IP Counsel.2 That represents an 

average of 10.6 unique responsive documents each workday over the course of the seven years 

covered by Mr. Watrous’s employment at Apple and Qualcomm’s subpoenas. Although Mr. 

Watrous is involved in issues that pertain to this lawsuit, his employment is hardly limited to 

issues that relate to this case and fall within Qualcomm’s subpoenas. Far from suggesting any 

kind of problem, Apple’s identification of a substantial volume of documents for Mr. Watrous 

demonstrates that Apple’s search for and identification of documents was thorough. 

Similarly, Apple produced or logged approximately 9,300 documents from the custodial 

files of Johny Srouji, Apple’s Senior Vice President of Hardware Technologies. That figure 

corresponds to an average of 4.0 unique responsive documents each workday over the course of 

over nine years. The baseband chipsets at issue in this case are not the only hardware technology 

that goes into Apple products and Mr. Srouji’s work extends far beyond the issues relevant to this 

lawsuit. 

Apple is of course willing to meet and confer with Qualcomm to the extent Qualcomm 

believes that there may be gaps or errors in Apple’s document production and can identify a basis 

for those beliefs. See Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015) (“If 

respondent believes that the ultimate discovery response is incomplete and can support that belief, 

he can file [a] motion to compel at that time.”). Such discussions are commonplace in cases 

involving massive document reviews and productions. The fact that Qualcomm did not seek to 

 

2

 Qualcomm’s figures for Mr. Watrous’s files do not appear to account for email attachments on 

Apple’s privilege logs, or Apple’s supplemental privilege logs. Qualcomm and Apple also have 

slightly different counts for produced documents, as noted in the parties’ January 12, 2018 joint 

status report. (ECF 482 at 2-3.) There are similar issues for Qualcomm’s figures concerning Mr. 

Srouji’s files. 

Case 5:17-cv-00220-LHK Document 508 Filed 01/19/18 Page 5 of 7
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NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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meet and confer regarding these issues highlights the fact that Qualcomm has no basis, and is 

more interested in harassing Apple than actually conducting discovery. 

III. Apple’s Privilege Log 

Qualcomm’s second basis for “questioning” Apple’s satisfaction of the Court’s December 

21 Order focuses on concerns Qualcomm has regarding Apple’s privilege log. 

The Court specifically instructed Qualcomm not to bring disputes concerning the privilege 

log into the current dispute regarding sanctions: 

THE COURT: I’ll say this: If there’s some new category, I’m not 

looking to, for example, to bring in the privilege log disputes into 

this sanctions issue because I want you to confer with each other 

before we have any discussion about sanctions. So this is really 

backward looking towards the productions that were due initially on 

December 15th and the sanction I ordered of $25,000 a day for its 

noncompletion. 

(ECF 467 at 12:19-25 (emphasis added).) Moreover, as noted in the parties’ January 12, 2018 

status report, Apple is in the midst of a proactive effort to identify documents on its privilege log 

that are non-responsive, non-privileged, or should be produced in redacted form, as well as to 

provide more detailed privilege descriptions where appropriate. (ECF 482 at 8-10.) The parties 

are also meeting and conferring over privilege log issues. Yet, Qualcomm is attempting to 

manufacture a dispute where none currently exist, by bringing privilege log issues into this 

briefing. 

 Apple has already addressed Qualcomm’s privilege log issues in the parties’ joint status 

report. (Id.) However, one additional issue bears discussion here. Qualcomm quotes the 

December 20, 2017 hearing out of context to suggest that the Court’s statement that Apple was to 

“produce whatever you’ve got subject to clawback” applied even to documents Apple had 

identified as privileged or highly likely to be privileged. (ECF 483 at 5.) That is not accurate. 

The Court’s statement applied only to Apple’s review of the 1.3 million documents in quality 

control. (ECF 424 at 62:5-15.) 

IV. Conclusion 

Apple satisfied the Court’s December 20, 2017 order on December 27, 2017, when 

Qualcomm received Apple’s last production of responsive non-privileged documents from the 

Case 5:17-cv-00220-LHK Document 508 Filed 01/19/18 Page 6 of 7
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NON-PARTY APPLE INC.’S RESPONSE TO QUALCOMM’S SUBMISSION RE: APPLE’S 

COMPLIANCE WITH PRODUCTION DEADLINES 

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

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population of 1.3 million documents in quality control as of December 15, 2017. Qualcomm has 

offered nothing but suspicion to dispute that, and does not even take the position that there should 

be a later termination date for the sanctions imposed by the Court. Rather, Qualcomm wants to 

conduct an unwarranted fishing expedition into the details of Apple’s document review and 

production process, much of which is attorney client privileged and attorney work product. The 

Court should not entertain that effort. 

 Apple respectfully submits that the termination date for sanctions should be December 27, 

2017, and that Qualcomm’s request for what is essentially supplemental discovery should be 

denied. 

 

Dated: January 19, 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.

Case 5:17-cv-00220-LHK Document 508 Filed 01/19/18 Page 7 of 7