CASE NO. 17-CV-0220-LHK

JOINT RESPONSE TO COURT ORDER 

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Counsel Listed on Signature Page 

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 

JOINT RESPONSE TO COURT 

ORDER PROPOSING SEALING 

PROCEDURES FOR TRIAL 

CTRM: Courtroom 8 

JUDGE: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1067 Filed 01/02/19 Page 1 of 5
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Defendant Qualcomm Incorporated (“Qualcomm”) and Plaintiff Federal Trade 

Commission (“FTC”) hereby jointly respond to this Court’s Order Proposing Sealing Procedures 

for Trial, ECF No. 1012 (“Order”). 

In its Order, the Court requested the parties’ feedback on its suggestion that sensitive 

third party information might be managed at trial, at least in part, through a glossary of code 

names for the third parties, such as “Firm A” and “Firm B.” 

The parties have met and conferred with one another and with a number of third parties. 

The parties do not have any objection to referring to third parties by their actual company names 

or by code names. While the parties recognize that the Court’s suggested approach would work 

well in some actions, third parties have commented that they do not believe this approach would 

be feasible in this action for the following reasons. 

First, third parties observed that the circumstances of particular third parties are such that 

it would be readily apparent which company was at issue even if a code name were used. For 

example, when a witness testifies, it is well known in the industry who the individual works or 

worked for, and referring to his or her employer by a code thus would not mask the company 

name. The parties do not currently expect that third party information introduced at trial could 

be sufficiently generalized that the use of code names would enable the parties and the Court 

efficiently to publicly discuss otherwise sealable third party information (if any). Second, much 

of the trial testimony will come in through video deposition testimony, and the actual company 

names were used, with no feasible technical ability to change the names to assigned codes. 

The FTC has proposed that documents older than 36 months would presumptively not be 

sealed, with certain exceptions such as the specific terms of license agreements, and the 

presumption would be rebuttable where a party or third party can demonstrate the need to 

maintain the confidentiality of the particular information at issue. Qualcomm is willing to agree 

to the FTC’s proposal on the condition that the same proposal apply to third party information. 

If this proposal is not generally applied to all information in this case, Qualcomm would be put 

in the position of revealing its confidential business information to its competitors or potential 

licensing counter-parties while similar third party information is afforded disproportionate 

Case 5:17-cv-00220-LHK Document 1067 Filed 01/02/19 Page 2 of 5
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JOINT RESPONSE TO COURT ORDER 

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protection. Besides being unfair, it would also disadvantage Qualcomm vis-à-vis those 

competitors or licensing counter-parties. There is no reason to apply different standards based 

solely on the source of the information; the underlying rationale is the same. The FTC does not 

object to the same presumption applying to third party information, but has not had an 

opportunity to meaningfully confer with third parties regarding Qualcomm’s proposal and thus 

the FTC is not in a position to speak for those parties. 

The parties believe that other procedures put in place by the Court, including notifying 

third parties in advance of exhibits and evidence that have been designated as Protected Material 

under the Protective Order to give them the opportunity to determine if any information should 

be sealed, and turning off the public monitors when sealable information is displayed, will help 

to keep the need to seal the courtroom to a minimum. The parties are also open to further 

discussions of procedural options for limiting the need to seal the courtroom or specific evidence 

as the trial is underway should unforeseen issues arise. 

Dated: January 2, 2019 

FEDERAL TRADE COMMISSION 

/s/ Jennifer Milici 

Jennifer Milici 

Wesley G. Carson 

J. Alexander Ansaldo 

Joseph R. Baker 

Elizabeth A. Gillen 

Daniel Matheson 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Federal Trade Commission

Case 5:17-cv-00220-LHK Document 1067 Filed 01/02/19 Page 3 of 5
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By: 

KEKER, VAN NEST & PETERS LLP 

/s/ Robert A. Van Nest

Robert A. Van Nest 

Eugene M. Paige 

Justina Sessions 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

rvannest@keker.com 

epaige@keker.com 

jsessions@keker.com

Gary A. Bornstein 

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Richard S. Taffet 

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178-0060 

Tel: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

Willard K. Tom 

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Ave. NW 

Washington, DC 20004-2541 

Tel: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

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 

geoffrey.holtz@morganlewis.com 

 ATTORNEYS FOR DEFENDANT 

QUALCOMM INCORPORATED

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FILER’S ATTESTATION 

I, Geoffrey T. Holtz, am the ECF user whose identification and password are being used 

to make this filing. In compliance with Civil Local Rule 5-1(i)(3), I hereby attest that the 

signatories of these documents have concurred in this filing. 

/s/ Geoffrey T. Holtz 

 Geoffrey T. Holtz 

Case 5:17-cv-00220-LHK Document 1067 Filed 01/02/19 Page 5 of 5