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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION, 

PLAINTIFF,

VS.

QUALCOMM INCORPORATED, A 

DELAWARE CORPORATION,

DEFENDANT.

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C-17-00220 LHK

SAN JOSE, CALIFORNIA

OCTOBER 24, 2018 

PAGES 1-61 

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE LUCY H. KOH 

UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

FOR THE PLAINTIFF: FEDERAL TRADE COMMISSION 

BY: JENNIFER MILICI

 600 PENNSYLVANIA AVENUE, NW 

WASHINGTON, D.C. 20580

APPEARANCES CONTINUED ON NEXT PAGE

OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR

CERTIFICATE NUMBER 9595

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED WITH COMPUTER

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APPEARANCES (CONTINUED)

FOR THE DEFENDANT: KEKER, VAN NEST & PETERS 

BY: ROBERT A. VAN NEST

633 BATTERY STREET

SAN FRANCISCO, CALIFORNIA 94111 

CRAVATH, SWAINE & MOORE 

 BY: GARY A. BORNSTEIN

 MICHAEL BRENT BYARS

825 EIGHTH AVENUE 

 NEW YORK, NEW YORK 10019

ALSO PRESENT: KURT KJELLAND 

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SAN JOSE, CALIFORNIA OCTOBER 24, 2018 

P R O C E E D I N G S

(COURT CONVENED AT 3:32 P.M.)

THE COURT: GOOD AFTERNOON AND WELCOME. 

MR. VAN NEST: GOOD AFTERNOON, YOUR HONOR. 

THE CLERK: PLEASE BE SEATED. 

YOUR HONOR, CALLING CASE 17-CV-00220, FEDERAL TRADE 

COMMISSION VERSUS QUALCOMM, INCORPORATED. 

COUNSEL, PLEASE STATE YOUR APPEARANCES. 

MS. MILICI: JENNIFER MILICI FOR THE FEDERAL TRADE 

COMMISSION. 

MR. VAN NEST: GOOD AFTERNOON, YOUR HONOR. 

BOB VAN NEST OF KEKER, VAN NEST & PETERS FOR QUALCOMM. 

AND I'M HERE WITH GARY BORNSTEIN AND BRENT BYARS FROM THE 

CRAVATH FIRM IN NEW YORK, ALSO FOR QUALCOMM. 

AND OUR CLIENT, KURT KJELLAND IS HERE IN THE COURTROOM AS 

WELL. 

GOOD AFTERNOON. 

THE COURT: GOOD AFTERNOON, AND WELCOME TO EVERYONE. 

AND THANK YOU FOR YOUR PATIENCE WITH MY CHANGING THE TIME OF 

THE CMC. SO THANK YOU. 

SO LET'S GO THROUGH YOUR JOINT CASE MANAGEMENT STATEMENT. 

SO I GUESS WE'LL START WITH MOTIONS IN LIMINE. 

SO CURRENTLY WE HAVE QUALCOMM'S MOTION TO STRIKE FTC'S 

EXPERT -- IS IT AKL? HOW DO YOU PRONOUNCE THAT, A-K-L? 

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MS. MILICI: AKL. 

THE COURT: AKL, OKAY. 

AND THE DAUBERT AGAINST YOUR EXPERT, DONALDSON; AND THEN 

FTC'S DAUBERT AS TO SNYDER; AND IT'S CALLED A DAUBERT, BUT IT'S 

KIND OF A 403 MOTION AS TO FTC'S EXPERT NEVO. 

SO IN ADDITION TO THOSE THAT ARE FULLY BRIEFED, WHAT ABOUT 

TWO ADDITIONAL MOTIONS IN LIMINE PER SIDE? YOU SAID THREE OR 

FEWER. I'D LIKE TO GO FEWER. IS THAT ALL RIGHT? 

MR. VAN NEST: I THINK -- I THINK IF THE COURT COULD 

TOLERATE IT, SINCE THE BRIEFING IS SO SHORT ON THESE -- IT'S A 

COMPLICATED CASE GOING BACK A LONG TIME. THREE WOULD BE, I 

THINK, HARD FOR US TO FIT IN, BUT TWO WOULD BE REALLY, REALLY 

TOUGH. 

THE COURT: ALL RIGHT. THREE IS FINE. SO YOU'RE 

SAYING THREE IN ADDITION TO THE TWO YOU'VE ALREADY FILED? 

MR. VAN NEST: RIGHT. 

THE COURT: OKAY, THAT'S FINE. 

MR. VAN NEST: THANK YOU, YOUR HONOR. 

THE COURT: THAT'S FINE. 

NOW, DID I PREVIOUSLY SET PAGE LIMITS? I COULDN'T FIND IT 

IN ANY OF THE CASE MANAGEMENT ORDERS. 

MR. BORNSTEIN: YOUR HONOR, IT'S OUR UNDERSTANDING 

THAT IT'S A THREE PAGE LIMIT UNDER THE BENCH TRIAL GUIDELINES 

THAT IS YOUR HONOR'S STANDING ORDER. 

THE COURT: ALL RIGHT. THREE AND THREE AND NO REPLY; 

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CORRECT? 

MR. BORNSTEIN: THAT'S OUR UNDERSTANDING, YES. 

THE COURT: ALL RIGHT. LET'S KEEP THAT. THANK YOU. 

OKAY. SO THAT TAKES CARE OF MOTIONS IN LIMINE. 

ALL RIGHT. LET'S TALK ABOUT EXHIBITS. FIRST THE NUMBER, 

AND I DO -- I SAW THAT YOU HAD, I THINK, A FOOTNOTE ABOUT A 

JOINT EXHIBIT LIST. I WOULD REALLY ENCOURAGE YOU, IF YOU CAN, 

IF YOU BOTH THINK YOU'LL NEED TO USE SOMETHING, TO HAVE A JOINT 

ONE. 

SO I'M HOPING THAT WE WON'T HAVE SO MUCH PAPER WITH A LOT 

OF DUPLICATIVE EXHIBITS. 

MR. VAN NEST: WE'RE WORKING ON THAT, YOUR HONOR. 

THE COURT: GREAT. 

MR. VAN NEST: OBVIOUSLY WITH THIS MUCH TIME AND THIS 

MANY LICENSE AGREEMENTS -- 

THE COURT: UM-HUM. 

MR. VAN NEST: -- IT COULD BE VOLUMINOUS. SO WE'RE 

WORKING ON A JOINT EXHIBIT LIST, AND THERE MAY BE SOME AREAS 

WHERE WE COULD SUBMIT A SUMMARY, TOO, UNDER EVIDENCE CODE 1006, 

A SUMMARY OF VOLUMINOUS DOCUMENTS. 

BUT WE'RE WORKING ON BOTH OF THOSE, AND WE'RE HOPING TO 

HAVE AT LEAST SOME EXHIBITS SUBMITTED JOINTLY AND A JOINT LIST 

THAT ARE PRE-ADMITTED. 

THE COURT: ALL RIGHT. THANK YOU. THANK YOU. I 

MUCH APPRECIATE THAT. IT'LL MAKE THINGS SIMPLER TO NOT HAVE 

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DUPLICATIVE COPIES OF THE SAME DOCUMENTS. 

MR. VAN NEST: WE AGREE. 

THE COURT: LET'S TALK ABOUT THE NUMBER. I AM 

PLANNING TO LIMIT -- I HAVE TO SAY, 1,000 EXHIBITS IS REALLY 

SOUNDING JUST UNMANAGEABLE FOR MY CHAMBERS AND ME. SO I WAS 

HOPING TO REDUCE THOSE NUMBERS, AND WHAT I WAS THINKING IS 

SETTING A LIMIT ON YOUR PRELIMINARY DISCLOSURES ON 

NOVEMBER 8TH; THEN SETTING A LIMIT ON YOUR ADDITIONAL 

DISCLOSURES ON NOVEMBER 21; THEN ASKING YOU TO SORT OF NARROW 

IT DOWN BY THE TIME OF THE PRETRIAL CONFERENCE AND NARROW IT 

FURTHER AT TRIAL SO WE HAVE SORT OF A, A FILTER, BECAUSE AS WE 

GET CLOSER TO THE TRIAL DATE, YOU MAY HAVE, YOU KNOW, A MORE 

PRECISE VIEW OF EXACTLY WHAT YOU NEED THE CLOSER WE GET TO THE 

TRIAL DATE. 

MR. VAN NEST: THAT -- I THINK YOUR CONCLUSION IS 

ABSOLUTELY RIGHT, YOUR HONOR. 

THE COURT: UM-HUM. 

MR. VAN NEST: AND I WOULD ASK THAT THE COURT INDULGE 

US. YOU'VE GOT SOPHISTICATED COUNSEL ON BOTH SIDES. IT'S 

EARLY, I THINK, TO PREDICT NUMBERS FOR A COUPLE REASONS. 

ONE, GIVEN THE LONG SCOPE OF TIME INVOLVED, THERE ARE 

REALLY LITERALLY THOUSANDS OF LICENSE AGREEMENTS INVOLVED HERE. 

WE ARE EXCHANGING LISTS ON NOVEMBER THE 8TH, AND THAT'LL 

GIVE US BOTH A BETTER IDEA OF WHAT'S IN PLAY BOTH WITH 

WITNESSES AND EXHIBITS, AND THEN WE HAVE A SUPPLEMENTAL 

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EXCHANGE, I THINK YOU SAW OUR SCHEDULE, FOR THE 26TH. 

THE COURT: SURE. 

MR. VAN NEST: I'D ASK THE COURT TO LET US CONTINUE 

MEETING AND CONFERRING. A LOT DEPENDS ON HOW MANY EXHIBITS WE 

CAN GET ON A JOINT LIST, BECAUSE OBVIOUSLY IF WE HAVE SO MANY 

LICENSES AND WE CAN AGREE ON A NARROWED SET, WHICH I'M HOPEFUL 

WE CAN -- 

THE COURT: UM-HUM. 

MR. VAN NEST: -- AND WE PUT THOSE ON A JOINT LIST 

AND PRE-AGREE TO THOSE, IT MIGHT OBVIATE THE NEED FOR A LOT OF 

OTHERS. 

BUT GIVEN THE NUMBER OF LICENSE AGREEMENTS AND THE AMOUNT 

OF TIME HERE, I'M REALLY AT A LOSS TO GIVE YOUR HONOR A GOOD 

NUMBER THAT WON'T SCARE BOTH YOU AND ME. 

WE KNOW, IN A TEN DAY TRIAL, THERE'S A LIMITED NUMBER WE 

CAN ADMIT. THAT'S A -- THAT'S CLEAR. 

THE COURT: UM-HUM. 

MR. VAN NEST: BUT I'D ASK YOUR HONOR TO INDULGE US 

JUST A WHILE LONGER, LET US JOINTLY SUBMIT A PROPOSAL, AND 

TAKING THE GUIDANCE YOU JUST GAVE US, I THINK WE COULD MAKE A 

PROPOSAL ALONG THOSE LINES THAT WOULD WORK FOR US. AND WE'LL 

KNOW WHETHER WE CAN HAVE A JOINT LIST BY THEN AND HOW BIG IT IS 

AND WHAT'S LEFT NOT ON THE JOINT LIST. 

SO I'D ASK YOUR HONOR TO DEFER THE NUMBER GAME TODAY, BUT 

WE GET THE IDEA THAT IT'S GOT TO BE A FUNNEL TOWARDS THE 

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PRETRIAL. 

THE COURT: WELL, MY CONCERN IS THAT 500 IS JUST, PER 

SIDE -- 1,000 EXHIBITS FOR A TEN DAY TRIAL, THAT'S JUST -- 

THAT'S TOO MANY. SO IF YOU START MORE FOCUSSED, I'M MORE 

LIKELY TO END UP WHERE I'D LIKE TO BE, VERSUS STARTING WITH 

1,000. 

MR. VAN NEST: BUT I -- REMEMBER -- REMEMBER, WE'VE 

ALREADY AGREED THAT WE CAN DESIGNATE WHATEVER LISTS WE PROVIDE 

EACH OTHER. 

THE COURT: UM-HUM. 

MR. VAN NEST: OUR THOUGHT WAS LET'S NOT LIMIT THE 

LIST RIGHT OFF THE BAT, BUT LET'S TELL EACH OTHER, "HERE'S MY 

TOP 500. I NEED TO KNOW IF YOU OBJECT TO THESE. AND IF YOU 

DO, THEN, OKAY, THEN I'M ON NOTICE OF THAT." 

I'M CONFIDENT THE LIST WILL GET WINNOWED DOWN. BUT WE'RE 

IN A SITUATION, ON THE DEFENSE SIDE, WHERE WE'RE NOT SURE WHICH 

OF THE LICENSE AGREEMENTS ARE GOING TO BE ATTACKED OR FOCUSSED 

ON IN THE TRIAL. 

THE COURT: UM-HUM. 

MR. VAN NEST: WE'LL KNOW THAT BETTER ON 

NOVEMBER 8TH. 

AND I KNOW, FROM OUR PERSPECTIVE, WE'D BE IN A MUCH BETTER 

POSITION -- AND I HONESTLY THINK IT'S TRUE FOR MY COLLEAGUE, 

TOO -- 

THE COURT: YEAH. 

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MR. VAN NEST: -- WE'LL BOTH BE IN A BETTER POSITION 

TO GIVE YOU NUMBER ESTIMATES AFTER WE'VE AT LEAST EXCHANGED 

PRELIMINARY LISTS, SUBMIT SOME VERY BRIEF WRITTEN JOINT 

SUBMISSION TO YOUR HONOR WITH A PROPOSAL, AND THEN YOU CAN ACT 

ON IT HERE WITHOUT A HEARING AND GIVE US GUIDANCE FOR THE 

PRETRIAL. 

BUT I THINK IT'S -- I THINK IT'S GOING TO BE -- TO MAKE 

LIFE MORE DIFFICULT FOR US AND LESS PRACTICAL IF YOU SET A 

NUMBER TODAY. 

THE COURT: UM-HUM. 

MR. VAN NEST: AND I'D JUST ASK YOU TO WAIT A LITTLE 

WHILE LONGER UNTIL WE EXCHANGE THOSE INITIAL LISTS. 

AND I DON'T THINK WE'LL BE INCONVENIENCING YOUR HONOR 

BECAUSE, AGAIN, I'M COGNIZANT WHAT I CAN AND CAN'T DO IN A TEN 

DAY TRIAL JUST WITH TIME LIMITS, WHICH IS ULTIMATELY GOING TO 

NARROW THESE DOWN. 

AND I DON'T REALLY THINK YOUR HONOR NEEDS TO GO THROUGH 

THE EXERCISE OF DOING EXHIBIT OBJECTIONS AT THE PRETRIAL. WE 

OUGHT TO BE ABLE TO NARROW THE FOCUS OF WHAT WE HAVE TO DISCUSS 

AND GET THIS CLEARLY TEED UP SO YOU'RE RULING ONLY ON THE KEY 

DISPUTES ON EXHIBITS THAT WE'RE ACTUALLY GOING TO USE WITH LIVE 

WITNESSES. 

THE COURT: WELL, I AGREE WITH THAT LAST PART. I'M 

GOING TO SET UP A HIGH PRIORITY OBJECTION PROCESS. 

MR. VAN NEST: GREAT. 

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THE COURT: BUT THIS IS MY CONCERN: I'M GOING TO GET 

PRETRIAL STATEMENTS THAT ARE GOING TO BE -- YOU KNOW, YOUR 

JOINT CASE MANAGEMENT STATEMENT IS, WHAT, 20 PAGES LONG. AND 

SO I'M CONCERNED I'M GOING TO GET A JOINT PRETRIAL STATEMENT 

WITH, LIKE, TONS OF OBJECTIONS THAT THERE'S THIS ON YOUR LIST 

OF 500 AND THAT ON YOUR LIST OF 500 AND -- 

MR. VAN NEST: WHY DON'T YOU LIMIT THAT, THE HIGH 

PRIORITY LIST? IN OTHER WORDS, WHY DON'T YOU DECIDE HOW MANY 

HIGH PRIORITY OBJECTIONS YOU WANT TO ENTERTAIN, AND THEN, THEN 

THE LIST -- THE TOTAL SIZE OF THE LIST IS A LOT LESS RELEVANT 

FOR YOU. 

AND ONCE WE GET HIGH PRIORITY OBJECTIONS DEALT WITH, THEN 

WHAT I'M HOPEFUL OF IS THAT THE PARTIES CAN RESOLVE THE REST OF 

THEM, AND TO THE EXTENT WE HAVE FURTHER OBJECTIONS, TAKE THEM 

AS THE TRIAL GOES ALONG. IT'S A BENCH TRIAL, AFTER ALL, SO WE 

DON'T HAVE A JURY WE'RE USHERING IN AND OUT. 

THE COURT: WELL, I KNOW WHAT'S GOING TO HAPPEN WITH 

A BENCH TRIAL. YOU'LL BE PUTTING IN HUNDREDS AND HUNDREDS AND 

HUNDREDS OF OBJECTIONS, AND THEN ON APPEAL, YOU'LL SAW, 

"AH-HAH, BUT EXHIBIT 499 HAD THIS ON PARAGRAPH 6 OF PAGE 32 

WHICH X, Y, Z." 

YOU KNOW, I THINK IT SHOULD BE A MANAGEABLE NUMBER THAT WE 

CAN ACTUALLY DISCUSS AND REVIEW DURING TRIAL VERSUS JUST 

LOBBING IN HUNDREDS AND HUNDREDS OF PAGES THAT NO ONE IS GOING 

TO DISCUSS -- 

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MR. VAN NEST: I AGREE WITH THAT. 

THE COURT: -- AND THEN HAVE IT AS A BOMB ON APPEAL. 

THAT'S NOT FAIR TO ANYBODY. 

SO I THINK FOR YOUR PRELIMINARY, WHY DON'T WE LIMIT THAT, 

INSTEAD OF 500 A SIDE AND 1,000 EXHIBITS, WHICH JUST SOUNDS 

EXCESSIVE TO ME, WHY DON'T WE JUST LIMIT THAT TO -- I WAS GOING 

TO SAY 250, BUT IT SOUNDS LIKE THAT'S NOT GOING TO BE ENOUGH 

FOR YOU. 

OKAY. WHAT ABOUT 400. 

MR. VAN NEST: AGAIN -- 

THE COURT: SAVE US -- I THINK 400 IS REASONABLE. 

I'M ABOUT TO GIVE YOU THE TIME LIMITS. YOU'RE GOING TO HAVE 25 

HOURS PER SIDE, SO, I MEAN, IF YOU WANT TO DO 1,000 EXHIBITS, 

YOU'RE GOING TO DO A COUPLE MINUTES PER EXHIBIT. 

I MEAN, IT'S JUST NOT -- 

MR. VAN NEST: BUT, AGAIN, THESE AREN'T EXHIBITS THAT 

ARE ALL COMING IN, YOUR HONOR. THESE ARE EXHIBITS THAT WE'RE 

EXCHANGING THAT ARE POTENTIAL. 

THE COURT: YEAH. 

MR. VAN NEST: THAT'S WHY I'M ASKING YOUR HONOR TO 

HOLD OFF ON THIS. 

BUT WE'LL WORK WITH WHATEVER NUMBER YOU GIVE US. BUT I -- 

IF WE'RE GOING TO SET A NUMBER TODAY, I'D REALLY LIKE A NUMBER 

HIGHER THAN 400, BUT -- 

THE COURT: WELL, YOU SAID 500. YOU SAID 500 IN YOUR 

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DOCUMENT. 

MR. VAN NEST: NO. WE SAID THAT WE'VE AGREED WITH 

EACH OTHER TO TELL THE OTHER -- TO REQUIRE THE OTHER SIDE TO 

OBJECT, OR NOT, TO 500 OF THE EXHIBITS ON OUR LIST. 

WE DON'T HAVE A LIMIT NOW. THAT'S WHAT THE FOOTNOTE SAYS 

THERE. THAT'S ON -- 

THE COURT: OH, YOU'RE SAYING YOU CAN FILE 500 

OBJECTIONS? THAT'S EVEN WORSE THAN I THOUGHT. 

MR. VAN NEST: NOT WITH YOU, YOUR HONOR. 

THE COURT: THAT'S EVEN WORSE THAN I THOUGHT. 

MR. VAN NEST: NOT WITH YOU, YOUR HONOR. WITH EACH 

OTHER. THAT'S WITH EACH OTHER EARLY ON AND TRY TO RESOLVE 

THOSE. THAT'S WHAT THAT FOOTNOTE -- THAT'S FOOTNOTE 10. 

THE COURT: OH, I MISREAD IT. I'M SORRY. 

MS. MILICI: YOUR HONOR, THE CONCERN FROM THE FTC'S 

SIDE WAS THAT WE WERE CONCERNED ABOUT GETTING A VERY LONG LIST 

FROM QUALCOMM AND HAVING TO SPEND A LOT OF HOURS WRITING UP 

OBJECTIONS FOR DOCUMENTS THAT ARE NOT LIKELY TO BE USED AT 

TRIAL. 

SO WE ADDED THAT 500 LIMIT, THAT WE COULD EACH IDENTIFY 

500 DOCUMENTS THAT THE OTHER SIDE WOULD PROVIDE OBJECTIONS TO, 

NOT TO THE COURT, BUT FOR THE PURPOSE OF MEETING AND CONFERRING 

TO COME UP WITH A JOINT LIST AND TO NARROW OUR OBJECTIONS FOR 

THE COURT. 

THE COURT: SO IT'S EVEN WORSE THAN I THOUGHT. YOU 

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MIGHT HAVE 2,000 EXHIBITS, BUT YOU'RE SAYING YOU'RE GOING TO 

FIGHT ABOUT 500 WITH EACH OTHER? 

MR. VAN NEST: WITH EACH OTHER. 

THE COURT: PER SIDE. SO IT SOUNDS LIKE 1,000 

FIGHTS. THIS SOUNDS REALLY EXCESSIVE TO ME AND NOT MANAGEABLE. 

MR. VAN NEST: BUT YOU -- 

THE COURT: WHY CAN'T YOU -- 

MR. VAN NEST: CAN I MAKE A SUGGESTION? 

THE COURT: -- IN YOUR PRELIMINARY EXCHANGE ON 

NOVEMBER 8TH, EXCHANGE AND IDENTIFY 400 EXHIBITS? 

MR. VAN NEST: WHAT I'M SUGGESTING IS SOMETHING 

DIFFERENT. 

THE COURT: UM-HUM. 

MR. VAN NEST: WHY DON'T YOU DECIDE -- YOUR PRETRIAL 

ORDER DOESN'T ACTUALLY REQUIRE US TO SUBMIT OBJECTIONS, I DON'T 

BELIEVE. WHY DON'T YOU DECIDE HOW MANY HIGH PRIORITY 

OBJECTIONS YOU WANT TO HEAR AT THE PRETRIAL AND LET US WORRY 

ABOUT THE REST? 

THE COURT: OH, I DON'T WANT TO HEAR HIGH PRIORITY 

OBJECTIONS AT THE PRETRIAL. I'M HEARING THREE MOTIONS IN 

LIMINE AND TWO DAUBERT MOTIONS THAT YOU'VE ALREADY FILED. 

THAT'S ALL I'M HEARING AT THE PRETRIAL CONFERENCE. 

MR. VAN NEST: OKAY. SO --

THE COURT: I'M NOT -- YOU KNOW, I COMPLETELY AGREE 

WITH WHAT PLAINTIFF'S COUNSEL SAID. YOU MAY HAVE A MUCH 

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NARROWER SET OF EXHIBITS YOU ACTUALLY WANT TO USE AT TRIAL, SO 

I DON'T WANT TO SPEND A LOT OF TIME RULING ON OBJECTIONS ON 

DOCUMENTS YOU MAY NOT ULTIMATELY USE. 

MR. VAN NEST: I COMPLETELY AGREE. 

THE COURT: SO -- 

MR. VAN NEST: AND I ACTUALLY THINK THAT GIVING US 

THE FREEDOM WITH A LARGER LIST WILL ALLOW US TO GET MORE THINGS 

ON AN AGREED LIST, A JOINT LIST THAT ARE PRE-ADMITTED. MANY OF 

THESE THINGS ARE JUST LICENSE AGREEMENTS AND THE LIKE THAT 

OCCUR IN THE ORDINARY COURSE. I DON'T REALLY THINK THERE'S 

GOING TO BE A BIG DEBATE. 

SO I'D ASK, IF YOUR HONOR IS GOING TO SET A LIMIT, WE'VE 

AGREED TO EXCHANGE INFORMATION AS TO AT LEAST 500 EXHIBITS, AND 

I HAVE A HARD TIME SEEING HOW I CAN ANTICIPATE EXACTLY WHAT 

THEY'RE GOING TO DO THIS FAR AHEAD WHEN I HAVEN'T EVEN SEEN 

THEIR LIST. THAT'S MY PROBLEM. I DON'T KNOW WHAT'S GOING TO 

BE ON THE LIST OR WHAT THEY'LL FOCUS ON. 

THE COURT: OKAY. ALL RIGHT. THIS IS WHAT I'M GOING 

TO DO: YOU WILL EXCHANGE A PRELIMINARY LIST OF UP TO 500 

EXHIBITS ON NOVEMBER 8TH. I THINK THAT'S REASONABLE. THAT'S 

1,000 EXHIBITS. 

NOW, I GUESS YOU'LL WANT TO, YOU SAID BY NOVEMBER 21, 

SUPPLEMENT YOUR LIST WITH ADDITIONAL EXHIBITS IN LIGHT OF THE 

OTHER SIDE'S 500, OR THEIR PRELIMINARY IDENTIFICATION ON 

NOVEMBER 8TH. 

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MR. VAN NEST: THAT'S RIGHT. 

MS. MILICI: AND, YOUR HONOR -- 

MR. VAN NEST: AND SO -- EXCUSE ME. 

MS. MILICI: I THINK WE DIDN'T ENVISION THIS JUST AS 

AN ADDITIVE PROCESS, BUT THAT UPON RECEIVING EACH OTHER'S 

WITNESS LISTS AND EXHIBIT LISTS, WE WOULD ALSO BE DROPPING 

EXHIBITS. SO THE EXHIBIT -- THE EXCHANGE -- THE LATER EXCHANGE 

IS NOT SIMPLY IDENTIFYING MORE. 

THE COURT: PILING ON. 

MS. MILICI: RIGHT, IT'S NOT PILING ON. IT'S ALSO 

JUST REFINING. 

MR. VAN NEST: BUT I'M NOT SURE THAT'S HOW WE 

UNDERSTOOD IT, YOUR HONOR. BUT -- 

THE COURT: UM-HUM. 

MR. VAN NEST: IT'S CERTAINLY THE CASE, I QUITE 

AGREE, THAT ONCE WE SEE THEIR LIST, IT'S QUITE LIKELY THAT SOME 

OF THE EXHIBITS ON OUR LIST WE WON'T DEEM NECESSARY. 

BUT IF YOU'RE GOING TO SET A LIMIT FOR THAT SECOND 

EXCHANGE -- 

THE COURT: YES, I AM. 

MR. VAN NEST: -- I THINK IT OUGHT TO BE ABOUT 250, 

HALF OF THE FIRST ONE, SO THAT WE HAVE THE FLEXIBILITY TO ADD 

EXHIBITS THAT WE'RE GOING TO NEED IN LIGHT OF WHAT THEY DO, AND 

THEY'D HAVE THAT SAME FLEXIBILITY. 

THE COURT: I'LL LET YOU ADD 150. SO YOU'LL BE UP TO 

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650 EXHIBITS, WHICH WILL BE 1,300 EXHIBITS TOTAL. THAT'S 

REALLY EXCESSIVE, BUT OKAY. 

BUT THEN I WANT THAT NUMBER BROUGHT DOWN BEFORE THE 

PRETRIAL CONFERENCE, BECAUSE I KNOW WHAT'S GOING TO -- I MEAN, 

I GET LONG -- THIS IS JUST SUPPOSED TO BE A CMC. I'M GETTING 

ALL THESE DISCOVERY DISPUTES IN YOUR CMC STATEMENT. I KNOW 

WHAT'S GOING TO HAPPEN AT THE PRETRIAL CONFERENCE. YOU'RE 

GOING TO TRY TO SNEAK IN A WHOLE BUNCH OF DISCOVERY DISPUTES IN 

YOUR PRETRIAL STATEMENT, SO I'M TRYING TO NARROW THE UNIVERSE 

OF THAT. 

SO WHEN DID YOU DECIDE TO FILE -- WHAT'S THE BRIEFING? IS 

IT 14 AND 10 DAYS IN ADVANCE OF THE PTC? I THINK THAT'S WHAT 

MY STANDING ORDER IS. 

MR. VAN NEST: TO FILE WHAT, YOUR HONOR? TO FILE THE 

PRETRIAL -- 

THE COURT: MOTIONS IN LIMINE, YOUR THREE MOTIONS IN 

LIMINE. 

MR. VAN NEST: THAT'S ON THE 29TH OF NOVEMBER. SO, 

YEAH, THAT'S IN ADVANCE OF -- I BELIEVE, THE PRETRIAL IS ON THE 

13TH. 

THE COURT: OKAY. 

MR. VAN NEST: SO THE 29TH OF NOVEMBER IS THE MOTION 

IN LIMINE DATE. 

THE COURT: OKAY. 

MS. MILICI: IT'S THE SAME DATE AS THE JOINT PRETRIAL 

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STATEMENT. 

MR. VAN NEST: RIGHT. 

THE COURT: OKAY. SO I AM WONDERING IF WE CAN HAVE A 

NARROWING BEFORE YOU HAVE TO FILE YOUR MOTIONS. 

NOW, I KNOW YOU'RE DOING YOUR EXCHANGE OF, YOU KNOW, 300 

ADDITIONAL EXHIBITS ON NOVEMBER 21, THE DAY BEFORE 

THANKSGIVING, SO IT'S PRETTY TIGHT. 

MR. VAN NEST: VERY TIGHT, YOUR HONOR. 

THE COURT: COULD YOU -- ON THE 27TH, ON TUESDAY, 

COULD YOU NARROW YOUR LIST, PLEASE? 

MR. VAN NEST: THAT'S THE TUESDAY AFTER THANKSGIVING, 

I THINK. 

THE COURT: UNFORTUNATELY, YES. IT'S JUST THAT YOUR 

DEADLINE IS THURSDAY, THE 29TH, THE WEEK AFTER THANKSGIVING. 

SO -- 

MR. VAN NEST: IN OTHER WORDS, I'M NOT -- I'M NOT 

UNDERSTANDING WHAT, WHAT YOU'RE ASKING. YOU WANT SOMETHING 

FILED IN ADVANCE OF THE PRETRIAL? 

THE COURT: NO, IT DOESN'T HAVE TO BE FILED IN 

ADVANCE. IT COULD BE JUST EXCHANGED -- 

MR. VAN NEST: WHAT DO YOU WANT -- YOU WANT -- 

THE COURT: -- BETWEEN THE PARTIES, A NARROWED LIST. 

I DON'T WANT US TO BE AT 650 EXHIBITS PER SIDE. I DON'T 

WANT TO BE AT 1,300 EXHIBITS AT THE TIME YOU FILE YOUR MOTIONS 

IN LIMINE AND YOUR PRETRIAL STATEMENT. THAT NUMBER NEEDS TO 

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COME DOWN. 

MR. VAN NEST: OKAY. CAN WE MEET AND CONFER ON THAT 

AND PROVIDE YOUR HONOR WITH A NUMBER? AND -- 

THE COURT: WELL, THEN YOU WANT TO COME BACK AND HAVE 

ANOTHER CMC? BECAUSE I DOUBT IT'LL BE A NUMBER -- 

MR. VAN NEST: I'M NOT INVITING THAT. NOT FOR YOUR 

HONOR, EITHER. 

BUT I THINK WE OUGHT TO BE ABLE TO WORK SOMETHING OUT AT 

LEAST IN THE PRETRIAL STATEMENT ITSELF, OR WE CAN CERTAINLY 

AGREE AMONG OURSELVES WHEN TO EXCHANGE THAT STUFF. 

THE STATEMENT'S NOT DUE TO YOUR HONOR UNTIL THURSDAY. IF 

YOU'RE NOT GOING TO SEE IT UNTIL THEN, I'M NOT SURE WHY IT 

MATTERS WHEN WE EXCHANGE. 

MS. MILICI: YOUR HONOR -- 

MR. VAN NEST: I HATE TO PUT BURDEN ON THE STAFF THAT 

CLOSE TO, YOU KNOW, THEIR LAST HOLIDAY OF THE YEAR. 

MS. MILICI: YOUR HONOR, I -- THE FTC WOULD PREFER TO 

EXCHANGE THEM ON THE -- ON THE 27TH AND NOT LATER. I THINK 

EXCHANGING ON THE 28TH FOR A 29TH FILING IS TOO LATE. 

THE COURT: COULD WE ADVANCE YOUR EXCHANGE OF 

ADDITIONAL EXHIBITS? RIGHT NOW YOU'RE EXCHANGING YOUR 

PRELIMINARY LIST ON THURSDAY, NOVEMBER 8TH. 

MR. VAN NEST: I'D RATHER SUBMIT THE NARROWED LIST ON 

THE 27TH, YOUR HONOR, BECAUSE THERE'S SO MUCH -- THE FIRST CUT 

IS GOING TO BE VERY DIFFICULT AND I DON'T WANT TO MOVE THAT 

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DATE AT ALL. 

THE COURT: OKAY. 

MR. VAN NEST: WE'VE AGREED TO THAT DATE. SO IF YOUR 

HONOR WANTS US TO EXCHANGE A NARROWED LIST ON THE 27TH, THAT'S 

WHAT WE'LL DO. 

THE COURT: ALL RIGHT. THANK YOU. AND I APOLOGIZE 

TO YOUR TEAMS. 

I THINK AT THAT POINT IT SHOULD COME DOWN TO 400. 

MR. VAN NEST: THAT'LL BE VERY CHALLENGING TO DO, 

YOUR HONOR. COULD I ASK THAT WE LEAVE IT AT 500? YOUR HONOR 

KNOWS, I THINK, THAT WITH A TEN DAY TRIAL, THERE'S GOING TO BE 

A LIMIT TO WHAT WE CAN DO. 

BUT, AGAIN, UNTIL WE SEE THEIR DOCUMENTS, SEE THEIR 

EXHIBITS, SEE THEIR WITNESSES, HEAR THEIR OPENING STATEMENT, 

IT'S REALLY DIFFICULT. IT PUTS US IN A TOUGH POSITION. 

THE COURT: LET ME HEAR, WHAT'S YOUR VIEW? 

MS. MILICI: I THINK THAT WE COULD LIVE WITH 400, BUT 

WE'D PREFER 500. 

THE COURT: WHAT ABOUT 450? 

MR. VAN NEST: WELL, I'M TOO PROUD TO GO 475, YOUR 

HONOR, BUT -- 

(LAUGHTER.) 

MR. VAN NEST: SOMEWHERE IN THERE. 

THE COURT: I'M SORRY WE'RE PLAYING "THE PRICE IS 

RIGHT," BUT 450. THANK YOU. 

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OKAY. THEN I WOULD LIKE THAT NUMBER TO BE LESS BY THE 

TIME BEFORE TRIAL. 

MS. MILICI: YOUR HONOR, AND TO CONFIRM, THESE ARE 

OUR -- THIS IS THE NUMBER THAT -- 

THE COURT: THIS IS PER SIDE. SO WE'RE STILL AT 900 

TOTAL. YOU'RE AT 450 PER SIDE. 

MS. MILICI: AND THAT LIST WOULD NOT INCLUDE OUR 

JOINT EXHIBITS? IS THAT CORRECT? 

MR. VAN NEST: THAT'S WHAT I UNDERSTOOD, YOUR HONOR. 

I THINK WE'RE GOING TO GET A LOT OF RELIEF FOR EVERYBODY 

WITH OUR JOINT EXHIBIT LIST, WHICH THEN THERE'S NO FIGHTING, 

THERE'S NO OBJECTIONS. THEY'RE IN AND YOUR HONOR WILL HAVE 

THEM. THERE'S NO OBJECTIONS TO THEM, EITHER. 

THE COURT: ALL RIGHT. WELL, THIS IS WHAT I'M GOING 

TO DO: I WILL NOT LIMIT JOINT EXHIBITS. I WANT TO CREATE AN 

INCENTIVE THAT YOU REACH AGREEMENT AND NOT FIGHT. OKAY? SO 

JOINT EXHIBITS I WON'T LIMIT. 

MR. VAN NEST: THANK YOU. 

THE COURT: WELL, ACTUALLY, I'M ALSO JUST THINKING OF 

JUST WHAT'S MANAGEABLE. THIS IS A BENCH TRIAL. WE JUST -- 

WE'RE NOT EVEN GOING TO BE ABLE TO REVIEW HUNDREDS AND HUNDREDS 

AND HUNDREDS AND HUNDREDS OF EXHIBITS. SO I JUST -- THIS NEEDS 

TO BE MANAGEABLE. WHY DON'T WE SAY THERE WILL BE 200 JOINT 

EXHIBITS? 

MR. VAN NEST: DO YOU THINK THAT'S SUFFICIENT? 

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MS. MILICI: WE'VE ONLY HAD VERY PRELIMINARY 

DISCUSSIONS ABOUT A JOINT EXHIBIT LIST. 

THE COURT: SURE. 

MS. MILICI: SO I'M NOT SURE WHETHER 200 IS 

REASONABLE. IT DEPENDS ON HOW MANY LICENSES THAT THE PARTIES 

ARE GOING TO HAVE IN MIND WITH THE SAME LICENSES AND THE SAME 

AGREEMENTS AND THOSE KINDS OF THINGS. 

THE COURT: YEAH. 

MS. MILICI: THERE CERTAINLY ARE A LOT OF SALES 

AGREEMENTS. 

THE COURT: ALL RIGHT. 250. 250 ON JOINT TRIAL 

EXHIBITS. 

AND -- 

MR. VAN NEST: YOUR HONOR? 

THE COURT: YEAH. 

MR. VAN NEST: COULD I MAKE ONE REQUEST ON THAT? 

THE COURT: WHAT'S THAT? 

MR. VAN NEST: I MEAN, INCENTIVIZING US TO AGREE, 

PUTTING IN MORE JOINT EXHIBITS IS A LOT BETTER -- 

THE COURT: UM-HUM. 

MR. VAN NEST: -- THAN PUTTING IN OBJECTED TO 

EXHIBITS. COULD YOU GIVE US JUST A DAY TO CONSULT ON NUMBERS, 

A DAY OR TWO, AND JUST SUBMIT A JOINT NUMBER TO YOU THAT WE 

AGREE ON ON THE JOINT EXHIBIT LIST? 

BECAUSE OBVIOUSLY YOU WANT THE INCENTIVE TO BE PUSHED IN 

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THE DIRECTION OF THE JOINT LIST, AND WE DO, TOO, NO OBJECTIONS 

AND NO WASTE OF TIME. 

THE COURT: UM-HUM. 

MR. VAN NEST: AND AS COUNSEL POINTS OUT, THERE ARE 

THOUSANDS OF LICENSES AND YOU'RE NOT GOING TO BE ABLE TO READ 

THEM ALL, OF COURSE. 

THE COURT: NO. 

MR. VAN NEST: BUT THERE ARE GOING TO BE A BUNCH IN 

GROUPS THAT ARE SIGNIFICANT FOR VARIOUS REASONS, AND I THINK 

THE PARTIES OUGHT TO BE ENCOURAGED TO PUT MORE THINGS ON THE 

JOINT LIST AND LESS THINGS ON A, YOU KNOW, DISPUTED LIST. 

THAT'S -- SO IF YOUR HONOR WOULD GIVE US UNTIL EARLY NEXT 

WEEK TO GIVE YOU A NUMBER FOR THE JOINT LIST, THAT WOULD BE 

GREAT. 

THE COURT: ALL RIGHT. WELL, THIS IS WHAT I'M GOING 

TO DO. 250 JOINT EXHIBITS, AND THEN 125 PER SIDE AT TRIAL. 

THAT'S A TOTAL OF 500 EXHIBITS, WHICH IS A LOT FOR A TEN DAY 

TRIAL. 

MR. VAN NEST: SAY THAT AGAIN, YOUR HONOR. 250 -- 

THE COURT: 250 JOINT, AND THEN 125 PER SIDE OF JUST 

YOUR OWN PARTY EXHIBITS, SO FOR A TOTAL OF 500 EXHIBITS. 

MR. VAN NEST: BOY, THAT'S GOING TO BE VERY, VERY 

CHALLENGING. I THINK THE 250, I THINK WE COULD -- 

THE COURT: THAT'S 50 EXHIBITS A DAY. 

MR. VAN NEST: BUT SOME -- SOME OF THE EXHIBITS THERE 

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WILL BE TESTIMONY ABOUT, LET'S SAY, A FEW EXAMPLES OF THEM. 

BUT IN ORDER TO MAKE OUR RECORD, ONE OF OUR POINTS IS 

GOING TO BE MANY PEOPLE SIGNED UP TO THESE PROVISIONS, AND MANY 

PEOPLE FOUND THEM ACCEPTABLE WITHOUT ANY PRESSURE WHATSOEVER. 

AND SO LIMITING US IN THAT WAY ON THE PARTY EXHIBITS I 

THINK IS, IS GOING TO BE EXTREMELY CHALLENGING TO BE ABLE TO 

PRESENT OUR CASE. 

IF WE HAD -- IF WE HAD 250 WITH THE 250 ON THE JOINT LIST, 

I'D FEEL A LOT MORE COMFORTABLE. BUT I THINK IT'S GOING TO BE 

VERY CHALLENGING AND POTENTIALLY UNFAIR TO LIMIT US TO 125. 

I PROMISE NOT TO PUT IN EXHIBITS THAT I DON'T NEED AND 

THAT I DON'T THINK ARE SIGNIFICANT. BUT I DON'T THINK THAT WE 

CAN MAKE OUR PROPER SHOWING AND DEFENSE WITH A NUMBER THAT LOW. 

THE COURT: DO YOU HAVE A VIEW? 

MS. MILICI: I -- MY VIEW IS MORE OF A PRACTICAL ONE 

THAT I AGREE WITH YOU THAT IT'S HARD TO IMAGINE HOW WE 

INTRODUCE MORE THAN 50 EXHIBITS A DAY DURING A TRIAL DAY. 

IDENTIFYING THE PRECISE 125 IN ADVANCE OF THE TRIAL WILL 

BE DIFFICULT, BUT IT'S HARD FOR ME TO IMAGINE HOW, AS A 

PRACTICAL MATTER, WE WOULD BE INTRODUCING MORE THAN 500 

EXHIBITS IN THE COURSE OF TRIAL. 

MR. VAN NEST: YOUR HONOR, WHY NOT LEAVE THAT LAST 

DECISION TO THE PRETRIAL? 

THE COURT: WHAT ABOUT 150 AND 150? 250 JOINT, 150 

EACH SIDE. THAT'LL BE A TOTAL OF 550 EXHIBITS. THAT'S 55 

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EXHIBITS A DAY. I THINK THAT'S SUFFICIENT. 

MR. VAN NEST: THE -- 

THE COURT: AND THAT'S MORE THAN WHAT I WAS PLANNING 

TO DO. BUT I'M OKAY WITH EACH SIDE THEN, NOT COUNTING JOINTS, 

WOULD BE IDENTIFYING 500 EXHIBITS PRELIMINARILY ON 

NOVEMBER 8TH; AND THEN IN RESPONSE, YOU CAN IDENTIFY ADDITIONAL 

150 BY NOVEMBER 21; BUT THEN BY NOVEMBER 27TH, THAT NUMBER OF 

PER SIDE EXHIBITS SHOULD BE DOWN TO 450. THESE ARE JUST PER 

SIDE NUMBERS. 

MR. VAN NEST: COULD WE MAKE THAT FINAL CUT NUMBER 

200, YOUR HONOR? BECAUSE, AGAIN, NOT KNOWING PRECISELY WHAT 

LICENSES AND OTHER AGREEMENTS THEY'RE GOING TO FOCUS ON -- 

THE COURT: UM-HUM. 

MR. VAN NEST: -- I HATE TO LIMIT MYSELF. 

I'M PERFECTLY WILLING TO LET THAT RIDE AND DISCUSS IT WITH 

YOU AT THE PRETRIAL, TOO. WE COULD ALSO DO THAT. 

BUT I'M JUST VERY WORRIED ABOUT PREJUDICE TO QUALCOMM BY A 

NUMBER TOO LOW BEFORE WE'VE EVEN BEGUN EXCHANGING ANYTHING, 

WHICH DOESN'T START HERE FOR A COUPLE OF WEEKS. 

THE COURT: UM-HUM. NO. I WANT YOU ALL TO PUT ON 

YOUR BEST CASE, AND THE BEST CASE IS WITH LIMITS. AND SO JUST 

PICK YOUR ABSOLUTE BEST 550 EXHIBITS. THAT'S NOT A SMALL 

NUMBER. 550? THAT'S GOING THROUGH 55 EXHIBITS A DAY. I THINK 

THAT'S SUFFICIENT. 

OKAY. LET'S TALK ABOUT THE TRIAL SCHEDULE. IT WILL BE 

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9:00 A.M. TO 4:30, AND THERE WILL BE A ONE HOUR LUNCH BREAK 

FROM NOON TO 1:00. THERE WILL BE A 15 MINUTE BREAK AT 10:30, 

AND 10 MINUTE BREAKS AT 2:15 AND 3:30. OKAY? THAT'S EVERY 

DAY. 

MR. VAN NEST: I'M SORRY. WAS THAT 9:00 TO 4:30, 

YOUR HONOR? 

THE COURT: YES, PLEASE. 

MR. VAN NEST: THANK YOU. 

THE COURT: NOON TO 1:00 LUNCH, A 15 MINUTE BREAK AT 

10:30, AND 10 MINUTE BREAKS AT 2:15 AND 3:30. 

OKAY. I DO THINK PRETRIAL BRIEFS AND POST-TRIAL BRIEFS 

WOULD BE HELPFUL, BUT I WANT PAGE LIMITS. SO SOMETHING 

MANAGEABLE, PLEASE. WHAT'S THE NUMBER? 

MR. VAN NEST: YOUR HONOR, COULD I ASK, ON THE -- I 

DON'T HAVE A STRONG VIEW ON THE PRETRIAL BRIEF. 

BUT ON THE POST-TRIAL BRIEFS, WOULDN'T IT BE BETTER TO 

MAKE THAT DECISION DURING THE TRIAL OR AT SOME POINT CLOSER TO 

TRIAL? 

THE COURT: THAT'S FINE. THAT'S FINE. 

MR. VAN NEST: I THINK THAT THAT WOULD BE BETTER. 

THE COURT: THAT'S FINE. 

MR. VAN NEST: ON THE PRETRIAL BRIEF, 25 PAGES I 

THINK. 

THE COURT: THANK YOU. THAT'S GOOD. THAT'S GOOD. 

MS. MILICI: ON THE POST-TRIAL, IS THE COURT GOING TO 

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WANT US TO UPDATE OUR FINDINGS OF FACT POST-TRIAL AS WELL? 

THE COURT: I THINK THAT WOULD BE HELPFUL, AND IT 

WOULD BE HELPFUL IF YOU COULD ACTUALLY CITE FROM THE 

TRANSCRIPTS OF THE TRIAL. 

MR. VAN NEST: YES. 

THE COURT: BECAUSE IT WOULD BE REALLY HELPFUL. AND 

THEN I WOULD ASK THAT YOUR POST-TRIAL BRIEFS BE SUBMITTED 

ELECTRONICALLY AS WELL. 

MR. VAN NEST: WE CAN DO THAT. 

THE COURT: SO THAT WE CAN CUT AND PASTE IN ADDITION 

TO -- SO IF YOU COULD SEND THAT IN MICROSOFT WORD VERSION, 

ALTHOUGH WE CAN TALK ABOUT THAT LATER. 

MR. VAN NEST: WE CAN. WE CAN ALSO LINK THEM SO YOU 

CAN CLICK ON THE TRANSCRIPT, TOO. 

THE COURT: THAT ACTUALLY WOULD BE -- 

MR. VAN NEST: LEE-ANNE IS NODDING. 

THE COURT: THAT WOULD BE FANTASTIC. 

CAN FTC DO THAT? 

MS. MILICI: I PERSONALLY HAVE NO IDEA, BUT -- 

MR. VAN NEST: THEY CAN. IT'S A VENDOR PROVIDED 

SERVICE THAT WE CAN ALL DO. 

THE COURT: OKAY. 

MR. VAN NEST: LET'S TALK -- 

THE COURT: THAT WOULD BE VERY HELPFUL. 

MR. VAN NEST: SURE. 

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THE COURT: OKAY. THAT WOULD BE HELPFUL. 

MR. VAN NEST: YOUR HONOR, CAN I GO BACK TO TRIAL 

DAYS? 

THE COURT: YES. 

MR. VAN NEST: ARE WE WORKING MONDAY, TUESDAY, AND 

FRIDAY AS YOUR GENERAL CASE ORDER INDICATES? 

THE COURT: YES, YES. AND I APOLOGIZE. I WANT TO 

KEEP MY OTHER CRIMINAL AND CIVIL CASES GOING DURING THAT TIME, 

SO WE WON'T BE IN TRIAL WEDNESDAYS AND THURSDAYS. SO SORRY 

ABOUT THAT. 

MR. VAN NEST: OKAY. AND WILL WE ACTUALLY START WITH 

OPENINGS ON THE 4TH? OR WHAT DO YOU ANTICIPATE? THE 4TH IS A 

FRIDAY. AND THE PRETRIAL IS MID-DECEMBER. 

THE COURT: UM-HUM. 

MR. VAN NEST: WERE YOU -- WHAT WERE YOU EXPECTING TO 

HAPPEN ON THE 4TH, OR HAD -- 

THE COURT: SO LET ME ASK YOU A QUESTION. IF YOU'RE 

GOING TO FILE PRETRIAL BRIEFS, DO YOU NEED OPENING STATEMENTS? 

MR. VAN NEST: I THINK WE'D LIKE TO MAKE A SHORT 

OPENING. I THINK YOUR HONOR LIMITED US TO 45 MINUTES EARLY ON 

IN THE CASE, OR SOMETHING LIKE THAT. I'D HAVE TO LOOK BACK AT 

THE TRANSCRIPT. 

BUT I THINK WE'D LIKE TO MAKE AN OPENING OF ABOUT THAT 

LENGTH, YES. 

THE COURT: WOULD YOU LIKE TO DO THAT? IT'LL COUNT 

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TOWARDS YOUR TEN HOURS, JUST SO YOU KNOW. 

MS. MILICI: YEAH. I DON'T RECALL ANY RULING ON THE 

45 MINUTES, BUT THAT'S POSSIBLE. 

THE COURT: THAT'S LONGER THAN I WOULD NORMALLY DO, 

BUT IT'S COUNTING TOWARDS YOUR TEN HOURS. SO YOU CAN DECIDE IF 

YOU WANT TO DO A TEN HOUR OPENING AND NO EVIDENCE, THAT'S OKAY, 

TOO. I MEAN, IT'S YOUR TEN HOURS. 

MR. VAN NEST: THANK YOU. 

MS. MILICI: SURE. THEN WE WILL LIKELY DO ONE AS 

WELL. WE DON'T ANTICIPATE USING 45 MINUTES OF OUR TIME. 

THE COURT: OKAY. ALL RIGHT. 

SO THE TRIAL TIME LIMITS IS GOING TO BE TEN HOURS PER 

SIDE. IT'S GOING TO BE 50 HOURS TOTAL. 

MR. VAN NEST: TEN DAYS YOU MEANT? 

THE COURT: I KNOW -- I'M SORRY. 10 DAYS, 50 HOURS 

TOTAL, 25 HOURS PER SIDE. SO IF YOU WANT TO MAKE AN OPENING 

STATEMENT OR A CLOSING ARGUMENT, IT WILL BE COMING OUT OF YOUR 

25 HOURS. 

MR. VAN NEST: DOES YOUR HONOR HAVE ANY FLEXIBILITY 

IN THAT TO ADD A DAY OR TWO? I DON'T KNOW WHAT YOUR SCHEDULE 

IS. I'M JUST CONTEMPLATING THE ISSUES THAT WE NEED TO DEAL 

WITH AND NOT WANTING TO RUSH YOUR HONOR THROUGH ANYTHING. 

THE COURT: UM-HUM. 

MR. VAN NEST: I'M WONDERING IF YOU HAVE DAYS ON YOUR 

CALENDAR -- I BELIEVE IF WE -- IF WE RAN THE TEN WITH THE 4TH 

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IN THERE, THERE WOULD BE POSSIBLY ROOM THAT THIRD WEEK OR INTO 

THE FOURTH WEEK FOR A DAY OR TWO. IF EACH SIDE GOT A DAY MORE, 

THAT WOULD, I THINK, ALLOW US TO PRESENT THIS THING IN A LITTLE 

MORE -- 

THE COURT: YOU KNOW WHAT?

MR. VAN NEST: -- UNDERSTANDABLE WAY. 

THE COURT: I'M SORRY TO INTERRUPT YOU. 

THIS IS WHAT I'LL DO: I'LL SAY THE 25 HOURS PER SIDE IS 

JUST EVIDENCE, OKAY? I'LL GIVE YOU 30 MINUTES PER SIDE FOR 

OPENING, AND I'LL GIVE YOU 45 MINUTES PER SIDE FOR CLOSING. 

I JUST AM NOT SURE, IF YOU'RE GOING TO BE BRIEFING ALL 

THIS, WHY WE NEED ORAL ARGUMENT AS WELL, ALTHOUGH I APPRECIATE 

IT AND YOU ALL ARE GREAT LAWYERS, SO IT'S -- 

MR. VAN NEST: WHAT I WAS GOING TO SUGGEST IS LET US 

DO AN OPENING. 

ON THE CLOSING, IF WE'RE GOING TO DO POST-TRIAL BRIEFING, 

THE CLOSING IS NOT NEARLY AS IMPORTANT. IT COULD BE DONE AFTER 

YOU'VE REVIEWED THE POST-TRIAL BRIEFS, OR NOT AT ALL. 

I MEAN, COMMONLY IN, SAY, ARBITRATIONS WHERE WE'RE GOING 

TO BE DOING POST-ARBITRATION BRIEFING, WHAT WE'VE DONE IS HAVE 

THE ARBITRATION, SEND A LINKED POST-TRIAL BRIEF TO THE 

ARBITRATORS -- 

THE COURT: UM-HUM. 

MR. VAN NEST: -- AND THEN THE ARBITRATORS DECIDE, DO 

WE WANT ORAL ARGUMENT OR NOT AFTER THEY'VE REVIEWED THE BRIEF, 

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AND WE'D BE VERY COMFORTABLE WITH THAT APPROACH FROM YOUR 

HONOR. 

I DO THINK, WITH A TEN DAY LIMIT, WE'RE GOING TO NEED ALL 

OF IT AND THEN SOME FOR OUR EVIDENCE. SO I -- I WOULD SAY I'M 

NOT SURE WE NEED CLOSINGS. WE DO -- WE WOULD LIKE TO HAVE AN 

OPENING AND TAKE THE TIME TO DO THAT. 

BUT WHY WOULDN'T YOUR HONOR DECIDE ON CLOSINGS AFTER THE 

TRIAL? 

THE COURT: YOU KNOW WHAT? I DIDN'T EVEN THINK WE 

NEEDED ANY ARGUMENT BECAUSE I'M GOING TO ASSUME THAT YOU'RE 

GOING TO PUT IT IN YOUR PRETRIAL BRIEFS AND YOUR POST-TRIAL 

BRIEFS. 

THAT'S FINE. LET'S NOT HAVE CLOSING ARGUMENT. I DON'T 

THINK IT'S NECESSARY. I THINK YOUR POST-TRIAL BRIEFS THAT'LL 

HAVE CITES TO TESTIMONY MIGHT ACTUALLY BE MORE HELPFUL. 

MR. VAN NEST: I THINK IT WILL BE. 

THE COURT: OKAY. SO LET'S NOT HAVE POST-TRIAL 

BRIEFS, BUT I WILL HAVE -- 

MR. VAN NEST: YOU MEAN -- 

THE COURT: -- 30 MINUTE -- LET'S NOT HAVE POST-TRIAL 

ARGUMENT. SORRY. 

MR. VAN NEST: YEAH. 

THE COURT: LET'S NOT HAVE CLOSING ARGUMENTS. 

BUT I WILL ALLOW THE OPENING STATEMENTS AND NOT HAVE IT 

COUNT TOWARDS YOUR 25 HOURS, BUT IT'LL BE LIMITED TO 30 MINUTES 

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INSTEAD OF 45. 

MR. VAN NEST: OKAY. 

THE COURT: OKAY? SO 30 MINUTES PER SIDE FOR OPENING 

STATEMENTS, 25 HOURS PER SIDE FOR YOUR DIRECTS AND CROSSES. 

OKAY? SO FOR THE EVIDENCE PORTION OF THE CASE, 25 HOURS PER 

SIDE. 

MR. VAN NEST: AND I WAS GOING TO ASK, ON THAT LAST 

POINT -- 

THE COURT: UM-HUM. 

MR. VAN NEST: -- I GUESS WE -- WE COULD DO ONE MORE 

DAY THAN WHAT WE HAVE AND STAY IN THAT SAME WEEK, RIGHT? IF 

WE'RE STARTING ON THE 4TH, THAT'S WHY I WAS ASKING, ARE YOU 

CONTEMPLATING STARTING THE CLOCK ON THE 4TH? 

THE COURT: I'M STARTING THE CLOCK ON THE 4TH, YEAH. 

I'M NOT STARTING IT WHILE YOU'RE GIVING YOUR OPENING 

STATEMENTS, BUT -- 

MR. VAN NEST: NO. 

THE COURT: BUT AS SOON AS YOU STAND UP. 

MR. VAN NEST: WHAT I WAS GOING TO SAY IS IF WE START 

THE CLOCK ON THE 4TH, THEN IN OUR THIRD WEEK, WE HAVE ONE MORE 

DAY THAT'S IN THAT SAME WEEK WHEN WE COULD FINISH UP OUR 

EVIDENCE. THAT WOULD GIVE US 11 DAYS, THREE TIMES -- THAT 

WOULD GIVE US, I GUESS -- NO, I GUESS IT WOULDN'T. WE'RE GOING 

TO STILL BE AT TEN DAYS, AREN'T WE? 

THE COURT: YEAH. SO I WAS CONTEMPLATING FRIDAY, THE 

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4TH; MONDAY, THE 7TH; TUESDAY, THE 8TH; FRIDAY, THE 11TH; 

MONDAY, THE 14TH; TUESDAY, THE 15TH; FRIDAY, THE 18TH; THE 21ST 

IS MARTIN LUTHER KING DAY, SO THE COURTHOUSE WILL BE CLOSED; 

TUESDAY, THE 22ND; FRIDAY, THE 25TH; AND MONDAY, THE 28TH. 

MR. VAN NEST: SO IF THAT'S THE CASE, IF WE'RE ALL 

GOING TO BE HERE THAT WEEK ANYWAY, INCLUDING OUR COLLEAGUES 

FROM OUT OF TOWN, COULD YOUR HONOR SEE YOUR WAY TO GIVING US 

THAT TUESDAY AS WELL AND JUST SPLITTING IT BETWEEN THE PARTIES? 

THE COURT: NO. I'M SORRY. I'M SORRY. THIS IS THE 

TRIAL LIMITS. 

OKAY. OKAY. SO THEN -- YOU KNOW WHAT I'D LIKE TO DO? 

I'D LIKE TO -- WHAT ABOUT LIMITING THE POST-TRIAL BRIEFS? I'LL 

GIVE YOU 35 PAGES. THAT'S 70 PAGES TOTAL. 

MR. VAN NEST: COULD WE -- 

THE COURT: I DON'T KNOW IF WE'LL BE ABLE TO ABSORB 

MUCH MORE. 

MR. VAN NEST: THAT MAY BE TRUE, BUT COULD WE MAKE 

THAT DECISION DURING THE TRIAL? I MEAN, YOUR HONOR MIGHT 

DECIDE THAT THINGS ARE MORE COMPLICATED THAN YOU THINK. MAYBE 

YOU'LL DECIDE THEY'RE MORE SIMPLE THAN YOU THINK. BUT -- 

THE COURT: CAN WE DO THIS? I'LL SET 35, BUT YOU CAN 

RAISE THE ISSUE AT THE END OF TRIAL IF IT TURNS OUT THAT IT'S 

REALLY, REALLY COMPLICATED AND MORE BRIEFING WOULD BE HELPFUL. 

MR. VAN NEST: OKAY. 

THE COURT: WE CAN TALK ABOUT IT. OKAY? SO THAT'S 

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35. 

OKAY. NOW, LET'S TALK ABOUT TRIAL EXHIBIT OBJECTIONS. 

SO THE PROCESS THAT I WAS THINKING IS THAT AT 8:00 A.M. 

TWO DAYS BEFORE A WITNESS OR AN EXHIBIT OR A DEMONSTRATIVE IS 

GOING TO BE USED, YOU EXCHANGE IT WITH EACH OTHER; BY 7:00 P.M. 

THAT NIGHT, YOU MEET AND CONFER IN PERSON, FIGURE OUT WHAT YOUR 

OBJECTIONS ARE, HOPEFULLY YOU CAN WORK OUT SOME; AND THEN BY 

8:00 A.M. THE NEXT DAY, WHICH IS ONE DAY BEFORE YOU'RE GOING TO 

USE AN EXHIBIT, A DEMONSTRATIVE, A DEPOSITION DESIGNATION OR 

CALL A WITNESS, YOU'RE GOING TO FILE YOUR HIGH PRIORITY 

OBJECTIONS AND YOU'RE GOING TO RESPOND TO THE OTHER PARTY'S 

OBJECTIONS TO YOUR EXHIBITS. OKAY? 

AND THEN I'LL GIVE YOU A RULING THAT NIGHT. SO THE NIGHT 

BEFORE YOU CALL A WITNESS, USE A DEPOSITION TRANSCRIPT OR 

VIDEO, USE A DEMONSTRATIVE, YOU'LL HAVE A RULING SO YOU'LL KNOW 

THE DAY BEFORE WHAT'S IN OR OUT. 

MR. VAN NEST: SO -- 

THE COURT: NOW, I WANT TO LIMIT THAT BECAUSE I KNOW 

THAT CAN GO CRAZY. YOU ALL HAVE BIG TEAMS THAT ARE WORKING ALL 

NIGHT AND I HAVE A SKELETON CREW THAT'S GOING TO BE DOING 

EVERYTHING AND MANAGING ALL MY OTHER CRIMINAL AND CIVIL CASES. 

SO I WOULD LIKE TO LIMIT THAT TO 15 OBJECTIONS PER DAY PER 

SIDE. 

MR. VAN NEST: I THINK WE CAN LIVE WITH THAT, YOUR 

HONOR. 

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AS I UNDERSTAND IT, AT 8:00 A.M. THE MORNING BEFORE THE 

WITNESS GOES ON, WE FILE AND THEY FILE A BRIEF WITH THOSE 

OBJECTIONS -- 

THE COURT: YES. 

MR. VAN NEST: -- AND OUR ARGUMENT SO YOU GET THAT 

ALL IN THE MORNING AT 8:00, AND THEN YOU'RE GOING TO GIVE US A 

RULING THAT DAY, THAT EVENING. 

THE COURT: THAT EVENING. 

MR. VAN NEST: THAT EVENING. 

THE COURT: AT THE END OF TRIAL, WE'LL GET IT OUT. 

MR. VAN NEST: RIGHT. AND THEN WE'RE CLEAR UNTIL -- 

WE'RE GOOD TO GO THE NEXT DAY. 

THE COURT: THEN YOU'RE GOING TO GO THE NEXT DAY. 

YOU KNOW WHAT'S IN OR OUT. YOU KNOW WHAT TO CALL AND PREP THAT 

PERSON. 

MS. MILICI: IS THERE A PAGE LIMIT ON THE HIGH 

PRIORITY OBJECTIONS? 

THE COURT: I'M GOING TO SAY EIGHT PAGES. 

MS. MILICI: AND JUST TO BE CLEAR, DID YOU REFER TO 

AN IN PERSON MEET AND CONFER ON -- AT 7:00 P.M.? 

THE COURT: THAT'S WHAT I'D LIKE YOU TO DO, YEAH. I 

MEAN, IT DOESN'T HAVE TO BE LEAD TRIAL COUNSEL, ALTHOUGH IF IT 

GETS REALLY UNREASONABLE, I MIGHT REQUIRE LEAD TRIAL COUNSEL TO 

MEET IN PERSON, HAVE DINNER OR SOMETHING. NO. 

BUT JUST SOME PEOPLE NEED TO GET TOGETHER, BECAUSE THIS IS 

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WHAT I DON'T WANT: I DON'T WANT WHAT'S FILED IN THE MORNING TO 

BE TALKING PAST EACH OTHER. I WANT THERE TO ACTUALLY BE A REAL 

MEET AND CONFER SO BOTH SIDES UNDERSTAND WHAT IS THE OTHER 

SIDE'S OBJECTION, IS THERE SOME SCOPE OF THAT DISPUTE THAT CAN 

BE AGREED TO AND LIMITED? 

AND THEN I WOULD LIKE, WHEN YOU FILE YOUR RESPONSES AND 

YOUR OBJECTIONS, THAT THERE'S ACTUALLY SORT OF A, YOU KNOW, A 

DIRECT DISPUTE VERSUS TWO SHIPS PASSING IN THE NIGHT BECAUSE 

PEOPLE DON'T REALLY UNDERSTAND WHAT THE OTHER SIDE IS OBJECTING 

TO. 

MR. VAN NEST: I'M UNDERSTANDING, AND I THINK 

CORRECTLY, THAT WHAT YOU'RE CONTEMPLATING IS THAT ON THE DAY 

THAT THE OBJECTIONS ARE FILED AT 8:00 IN THE MORNING, THE OTHER 

SIDE FILES THEIR RESPONSE SIMULTANEOUSLY. THAT'S WHY YOU'RE 

WANTING A MEET AND CONFER. 

THE COURT: YES. 

MR. VAN NEST: SO AT 8:00 A.M., IF THEY HAVE, SAY, 

FIVE OBJECTIONS, THEY FILE THOSE; AND WE'RE ALSO FILING AT 8:00 

OUR RESPONSE TO THOSE BASED ON WHAT WE UNDERSTOOD FROM THE 

NIGHT BEFORE. 

THE COURT: EXACTLY. IS THAT OKAY? 

MR. VAN NEST: THAT'S FINE. IT'S SUBJECT TO THE 

PROBLEM YOU'VE IDENTIFIED, BUT I DON'T THINK, YOU KNOW, THERE'S 

MUCH WE CAN DO ABOUT IT GIVEN THE TIMING. 

THE COURT: I MEAN, DO YOU WANT TO HAVE -- YOU KNOW, 

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I'VE DONE THIS PROCESS IN OTHER CASES AND IT'S WORKED. I GUESS 

IF IT DOESN'T WORK, WE CAN RE-EVALUATE AND FIGURE OUT ANOTHER 

SYSTEM. 

MR. VAN NEST: SURE. 

THE COURT: WOULD YOU RATHER DO STAGGERED BRIEFING? 

BUT THE PROBLEM IS YOU'LL BE HERE. 

MR. VAN NEST: WELL, WE'LL HAVE OUR TEAMS WORKING. 

MY QUESTION TO YOU IS, WHEN WILL YOU LOOK AT THESE? AT 

THE END OF THE TRIAL DAY?

THE COURT: AT LUNCH.

MR. VAN NEST: YOUR CLERKS WILL BE LOOKING AT THEM. 

THE COURT: YEAH, EXACTLY. OVER -- I MEAN, THE 

RULINGS WE CAN DO AT LUNCH, WE'LL DO AT LUNCH. 

BUT OTHERWISE, YES, IT'S USUALLY AT NIGHT. 

MR. VAN NEST: OKAY. THE ONLY WAY -- MAYBE A LOGICAL 

THING TO DO -- I'M HAPPY TO TRY IT THE WAY YOUR HONOR 

SUGGESTS -- BUT MAYBE THE PARTIES' RESPONSE COULD COME IN AT 

11:00 A.M. IF THE OBJECTIONS COME IN AT 8:00, THEN THE 

RESPONDING PARTY GETS THEM IN AT 11:00 OR 11:30, THEN YOU'VE 

GOT THEM AT LUNCH AND YOU CAN LOOK AT THEM. I THINK THAT WOULD 

PROBABLY WORK, TOO. 

MS. MILICI: YOUR HONOR, I THINK WE WOULD BE FINE 

WITH A SIMULTANEOUS EXCHANGE. WE DO NOT HAVE AN EXCESSIVELY 

LARGE TRIAL TEAM, SO HAVING TIME, MAKING SURE THAT I HAVE 

SOMEBODY AVAILABLE TO RESPOND TO SOMETHING THAT'S FILED AT 8:00 

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BY 11:00 I THINK WOULD BE DIFFICULT. SO WE WOULD RATHER JUST 

HAVE THE SIMULTANEOUS EXCHANGE. 

THE COURT: UM-HUM. IT'S WORKED IN THE PAST. I 

MEAN, YOU KNOW, IF IT REALLY DOESN'T WORK, WE CAN RE-EVALUATE 

IT AND RE-ASSESS IT. 

MR. VAN NEST: OF COURSE. LET'S TRY IT. 

THE COURT: IT'S WORKED IN THE PAST IN OTHER CASES. 

MR. VAN NEST: YOU'LL TELL US IF IT'S NOT USEFUL, IF 

THE OBJECTIONS AREN'T -- IF THE RESPONSES AREN'T MEANINGFULLY 

ADDRESSED TO THE OBJECTIONS, YOU'LL FIGURE THAT OUT AND TELL US 

WE'VE GOT TO CHANGE THE PLAN. 

THE COURT: UM-HUM. CAN WE DO -- I'M JUST THINKING 

WHETHER WE WOULD -- THAT WOULD MEAN I HAVE TO DO 30 OBJECTIONS 

EVERY NIGHT. 

MR. VAN NEST: WE'LL -- REMEMBER, YOU'RE ONLY GOING 

TO HAVE ONE PARTY ON AT A TIME, SO -- GENERALLY SPEAKING, 

RIGHT? WHEN THEY'RE PRESENTING THEIR CASE, WE'LL BE OBJECTING; 

AND WHEN WE'RE PRESENTING OUR CASE, THEY'LL BE OBJECTING. 

I DON'T THINK YOU'RE GOING TO HAVE OBJECTIONS FLYING BACK 

AND FORTH ON THE SAME DAY. THERE WILL BE ONE TRANSITION DAY 

WHEN WE TRANSITION TO OUR CASE. BUT TYPICALLY THEY'LL BE 

PUTTING THEIR CASE ON THE FIRST SEVERAL DAYS AND WE'LL BE 

OBJECTING, AND THEN VICE-VERSA THE NEXT SEVERAL DAYS. 

THE COURT: WELL, BUT THE PROBLEM IS YOU'LL BE -- 

WHEN IT'S PLAINTIFF'S CASE, YOU'LL BE OBJECTING TO PLAINTIFF'S 

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DIRECT EXHIBITS AND SHE'LL BE OBJECTING TO YOUR CROSS EXHIBITS, 

SO I WILL GET 30 OBJECTIONS. 

YOU KNOW WHAT? LET'S TAKE THIS TO -- WHAT ABOUT TEN PER 

SIDE? 

MR. VAN NEST: I THINK WE CAN LIVE WITH THAT. 

THE COURT: THAT'S A TOTAL OF 20. 

MR. VAN NEST: I THINK WE CAN LIVE WITH THAT. 

THE COURT: OKAY. THEN I'D LIKE THAT TO BE SIX 

PAGES. CAN YOU LIVE WITH FIVE PAGES? 

MR. VAN NEST: THAT WOULD REALLY BE TOUGH, YOUR 

HONOR. 

THE COURT: ALL RIGHT. SIX PAGES. LET'S DO SIX 

PAGES, TEN OBJECTIONS PER SIDE, SO YOU'LL GET RULINGS ON 20 

OBJECTIONS PER NIGHT. OKAY? 

I MEAN, I WOULD LIKE TO HAVE MORE TIME AND NOT HAVE TO DO 

THIS LATE AT NIGHT AFTER TRIAL, BUT I KNOW IT'S DIFFICULT FOR 

YOU ALL TO KNOW WHICH -- YOU KNOW, WHICH WITNESSES, WHICH 

DOCUMENTS YOU'LL BE RELYING ON. SO THAT'S WHY I'M TRYING TO DO 

IT AS CLOSE AS POSSIBLE TO THE DAY BEFORE. 

MR. VAN NEST: THAT'S BETTER FOR US, TOO. 

THE COURT: OKAY. ALL RIGHT. LET'S KEEP THIS. YOU 

KNOW, WE'RE COMMITTING TO DOING THIS AT NIGHT. 

OKAY. SO I'M GOING TO ENFORCE THE MARCH 30TH, 2018 FACT 

DISCOVERY CUTOFF. 

ON THE ISSUE OF WHETHER THERE'S GOING TO BE AN INJUNCTION 

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OR NOT, I THINK THAT ONLY IS AN ISSUE IF I FIND A VIOLATION. 

IF I DON'T FIND THE VIOLATION, THEN THERE'S NO INJUNCTION ON 

THE TABLE. IS THAT RIGHT? 

MR. VAN NEST: THAT'S THE TRUTH. 

THE COURT: SO WHAT I WAS GOING TO RECOMMEND IS WHY 

DON'T WE KIND OF TREAT THIS LIKE A PATENT CASE? LET'S HAVE THE 

TRIAL, FIGURE OUT WHAT THE MERITS ARE; AND THEN AT A LATER 

POINT, IF THE PLAINTIFF WANTS AN INJUNCTION, THEN THEY CAN MAKE 

A MOTION AND THEN AT THAT POINT WE CAN DECIDE WHAT'S THE SCOPE 

OF DISCOVERY FOR THAT DECISION. 

IT COULD BE THAT WE NEVER REACH THAT IF I FIND THERE'S NO 

VIOLATION. 

MR. VAN NEST: THAT WOULD BE FINE WITH US, YOUR 

HONOR. 

THE COURT: IS THAT OKAY? 

MR. VAN NEST: THAT SEEMS REASONABLE. 

THE COURT: IS THAT OKAY FROM THE PLAINTIFF'S SIDE? 

I DON'T WANT TO HAVE THIS FIGHT NOW IN THE MIDDLE OF TRIAL AND 

HAVING ALL THESE OBJECTIONS TO EXHIBITS THAT THAT PARTICULAR 

DOCUMENT WAS OR WAS NOT DISCLOSED BEFORE MARCH 30TH. I MEAN, I 

MAY NOT HAVE TO REACH THAT ISSUE. 

MS. MILICI: UNDERSTOOD. 

THE COURT: YEAH. 

MS. MILICI: OUR POSITION, AS WE SET FORTH HERE, IS 

THAT THERE -- THE COURT DOESN'T NEED TO HEAR ANY ADDITIONAL 

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EVIDENCE OUTSIDE OF THE MARCH 30TH CUTOFF TO GRANT AN 

INJUNCTION. 

BUT WE CAN PUT THAT INTO A BRIEF IF YOU'D LIKE TO RECEIVE 

A BRIEF ON THE INJUNCTIONS. 

THE COURT: YOU KNOW, I'M -- MY SENSE IS THAT IT'S 

GOING TO BE HARD ENOUGH JUST DECIDING WHAT I HAVE TO DECIDE AT 

TRIAL. SO, YOU KNOW, HAVING FIGHTS OVER REMEDIES RIGHT NOW 

SEEMS PREMATURE. 

MR. VAN NEST: THAT'S A -- 

THE COURT: BECAUSE WE MAY NOT HAVE A REMEDY. 

MR. VAN NEST: THAT'S PERFECTLY ACCEPTABLE. 

PERFECTLY ACCEPTABLE. 

THE COURT: BECAUSE I DON'T KNOW WHAT'S GOING TO 

HAPPEN. SO THEN LET'S JUST PUNT AND KICK THAT CAN DOWN THE 

ROAD. 

OKAY. SO THEN THE ONLY THING I HAD ON MY LIST IS 

WHETHER -- YOUR JOINT SEALING MOTION ISSUE. NOW, WHAT'S THE 

ISSUE? I GUESS THINGS ARE BEING FILED AT MIDNIGHT OR WEE 

HORSES OF THE MORNING THE NEXT DAY, AND SO YOU'RE CONCERNED 

THAT THE SEALING MOTIONS AREN'T GETTING FILED ON TIME? IS THAT 

THE CONCERN? 

MS. MILICI: RIGHT. THE ISSUE IS JUST THAT 

THROUGHOUT THIS CASE, WE'VE HAD A NUMBER OF JOINT FILINGS AND 

THEY TEND TO BE PUSHED UP TO VERY LATE AT NIGHT. 

THE COURT: YEAH. 

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MS. MILICI: AND PARTICULARLY WITH SOME OF THESE 

CURRENT MOTIONS TO SEAL, THERE'S WORK THAT HAS TO BE DONE 

AFTERWARDS AND WE'RE NOT GETTING INITIAL DRAFTS UNTIL VERY LATE 

AT NIGHT. 

SO WE WANTED TO JUST DISCIPLINE THE PROCESS BY HAVING A 

DEADLINE TO SUBSTANTIALLY COMPLETE THE DOCUMENT SO THAT THE 

OTHER PARTY CAN FILE IT WITHIN THE DEADLINE. 

THE COURT: OKAY. SO LET ME ASK YOU THIS: I HAVEN'T 

WORKED OUT A PERFECT SYSTEM ON THE SEALING. IS -- THERE MIGHT 

BE SOME MIDDLE GROUND WHERE -- I MEAN, TECHNICALLY EVERYONE IS 

ENTITLED TO MIDNIGHT. I MEAN, OBVIOUSLY IF THEY'RE FILING 

AFTER MIDNIGHT, IT'S LATE. BUT TECHNICALLY, UNDER OUR CIVIL 

LOCAL RULES, YOU'RE ENTITLED TO FILE UNTIL MIDNIGHT. SO I 

DON'T WANT TO CHANGE THE LOCAL RULES. 

MS. MILICI: TO -- 

THE COURT: BUT I UNDERSTAND THE CONCERN ABOUT THE 

SEALING. 

SO IS THERE ANOTHER PROPOSAL WHERE MAYBE YOU CAN FILE THE 

JOINT SEALING MOTION THE DAY AFTER? OR -- I MEAN, I UNDERSTAND 

ALSO WITH EAST COAST, WEST COAST, I DON'T WANT, YOU KNOW, YOUR 

TEAMS TO BE STAYING UP AT NIGHT AT 1:00 A.M. WAITING FOR THE 

MOTION TO FIGURE OUT WHAT NEEDS SEALING. 

MR. BORNSTEIN: FROM OUR PERSPECTIVE, YOUR HONOR, IT 

WOULD GREATLY RELIEVE THE PRESSURE IF WE HAD THE EXTRA DAY, 

BECAUSE THE PROBLEM WE'RE RUNNING INTO IS WE GET INFORMATION 

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AND THEN WE HAVE TO FIND SOMEBODY KNOWLEDGEABLE AT THE CLIENT 

WHO COULD PUT TOGETHER A DECLARATION. THOSE FOLKS ARE ALL IN 

CALIFORNIA. 

THE COURT: OKAY. SO WHAT IF WE DID THIS: WHAT IF 

YOU -- OKAY. YOU CAN HAVE YOUR MIDNIGHT DEADLINE FOR FILING 

YOUR BRIEFS, BUT THEN HAVE YOUR JOINT SEALING MOTION FILED THE 

NEXT DAY, AND I GUESS YOU HAVE UNTIL MIDNIGHT TO FILE THAT ONE. 

BUT I GUESS THEN -- I GUESS THEN WHATEVER YOU FILE SHOULD 

JUST GO AHEAD AND HAVE YOUR REDACTIONS -- OKAY. SO, WHAT, YOU 

WOULD BE FILING YOUR REDACTED VERSION PUBLICLY, AND THEN FILING 

YOUR -- 

MR. BORNSTEIN: WE COULD -- 

THE COURT: I MEAN, WE MAY WANT TO LOOK AT YOUR 

ENTIRE DOCUMENT WITHOUT ANY REDACTIONS, SO CAN YOU GO AHEAD AND 

FILE THAT UNDER SEAL AND THEN FILE YOUR MOTION THE NEXT DAY? 

MR. BORNSTEIN: WHAT WE HAVE BEEN DOING, YOUR HONOR, 

IS WE'VE BEEN, I BELIEVE, GIVING COPIES TO CHAMBERS OF THE 

UNREDACTED MATERIALS SO THAT YOUR HONOR AND YOUR HONOR'S STAFF 

HAVE THEM RIGHT AWAY, AND THEN IT'S JUST A QUESTION OF WHEN THE 

UNREDACTED VERSIONS ARE PROVIDED TO THE CLERK'S OFFICE UNDER 

SEAL. 

THE COURT: I SEE. SO YOU'RE HAND DELIVERING, THEN, 

THE COPIES? 

MR. BORNSTEIN: YES, YOUR HONOR. 

THE COURT: OKAY. WHY DON'T -- WE COULD DO THAT. SO 

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YOU'RE HARD COPY DELIVERING THEM THE NEXT DAY ANYWAY. IS THAT 

RIGHT? 

MR. BORNSTEIN: THAT'S CORRECT, YES. 

THE COURT: OKAY. ALL RIGHT. SO THAT WORKS. WHY 

DON'T WE DO THAT THEN? SO YOU FILE IT ELECTRONICALLY, A PUBLIC 

REDACTED VERSION; YOU GIVE US CHAMBERS COPIES -- DOUBLE-SIDED, 

PLEASE -- OF THE UN -- THE, YOU KNOW, EFFECTIVELY UNREDACTED. 

MR. BORNSTEIN: THE COMPLETE DOCUMENT. 

THE COURT: THE CONFIDENTIAL VERSION, CONFIDENTIAL 

VERSION. 

THEN THE DAY AFTER YOU FILE THAT BRIEF, YOU'LL FILE A 

JOINT SEALING MOTION, AND THAT'S GOING TO COMPLY WITH 

EVERYTHING THAT IS IN THAT MEET AND CONFER AND THE LOCAL RULES, 

LIKE YOU'RE GOING TO PROVIDE A VERSION THAT HAS THE REDACTED 

VERSION -- THE REDACTIONS HIGHLIGHTED IN YELLOW SO WE CAN SEE 

THE ACTUAL INFORMATION YOU'RE TRYING TO SEAL, YOU'RE GOING TO 

HAVE THE DECLARATION, YOU'RE GOING TO -- I GUESS YOU'RE -- YOU 

MAY HAVE TO FILE ANOTHER PUBLIC REDACTED VERSION BECAUSE IT 

COULD BE THAT YOU DON'T NEED OR WANT THE SAME INFORMATION 

SEALED. RIGHT? 

MR. BORNSTEIN: I GUESS THAT COULD HAPPEN. I'M 

TRYING TO THINK OF HOW THAT WOULD PAN OUT. 

THE COURT: LET'S SAY ONE PARTY IS JUST SEALING 

EVERYTHING THAT'S BEEN DESIGNATED CONFIDENTIAL UNDER THE 

PROTECTIVE ORDER, SO THAT'S GOING TO BE AN EXPANSIVE REDACTION. 

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BUT THEN THE NEXT DAY WHEN YOU MEET AND CONFER, IT TURNS OUT 

THAT PARTY OR THAT THIRD PARTY DOESN'T REALLY CARE, SO THEN 

YOU'RE GOING TO UNREDACT THAT INFORMATION. 

SO I'M JUST THINKING YOUR REDACTIONS MAY BE -- 

MS. MILICI: I -- 

MR. BORNSTEIN: WE SHOULD BE -- 

MS. MILICI: I THINK THAT WE CAN MEET AND CONFER ON 

THE DAY OF THE INITIAL FILING, AND I THINK THAT WE'VE BOTH BEEN 

GOOD ABOUT DOING THAT AT A REASONABLE TIME AND WE CAN DO THAT 

ON THE DAY OF THE FILING AND THEN JUST LEAVE THE ACTUAL MOTION 

AND DECLARATION DRAFTING AND FILING UNTIL THE NEXT DAY, THE 

MOTION TO SEAL. 

THE COURT: OH, SO YOU'RE SAYING ON THE DAY OF FILING 

THE DOCUMENT, YOU'RE ACTUALLY ALREADY AGREEING TO THE PORTIONS 

THAT NEED TO BE SEALED? 

MR. BORNSTEIN: THAT'S CORRECT. THE ONLY 

COMPLICATION TO THAT IS SOMETIMES WE HAVE THIRD PARTIES WHO ARE 

LESS COOPERATIVE THAN QUALCOMM WITH THE FTC.

THE COURT: SURE.

MR. BORNSTEIN: BUT WE'VE BEEN WORKING WELL TOGETHER 

ON THAT ISSUE. 

THE COURT: OH, OKAY. SO THEN YOU WON'T REALLY HAVE 

ANY CHANGES, THEN, BETWEEN THE INFORMATION YOU'RE SEEKING TO 

SEAL BETWEEN THE DAY OF FILING OF THE MERITS BRIEF AND THEN THE 

SEALING MOTION. 

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MS. MILICI: I DON'T EXPECT ANY. 

MR. BORNSTEIN: YEAH, AS LONG AS WE CAN SHARE 

INFORMATION WITH EACH OTHER FAR ENOUGH IN ADVANCE. IT'S A 

PROCESS THAT BEARS A LITTLE BIT MORE ON US THAN IT DOES ON THEM 

BECAUSE WE'RE THE ONES WHO HAVE THE INFORMATION THAT'S AT 

ISSUE. 

THE COURT: OKAY. 

MR. BORNSTEIN: BUT THE ONLY PLACE I FORESEE A 

POTENTIAL HICCOUGH IS ON THIRD PARTIES. BUT WE'VE BEEN 

COMMUNICATING WITH THEM AS WELL AND MOSTLY GETTING COOPERATION. 

THE COURT: OKAY. THAT -- DOES THAT SOLVE THE 

PROBLEM THEN, IF YOU CAN FILE YOUR SEALING MOTION THE NEXT DAY? 

MR. BORNSTEIN: I THINK IT GOES A LONG WAY, YOUR 

HONOR, YES. 

THE COURT: DOES THAT TAKE CARE OF IT? 

MS. MILICI: I THINK IT GOES A LONG WAY. 

WE DO HAVE OTHER JOINT FILINGS, SO THIS IS AN ISSUE THAT'S 

COME UP BEFORE, AND THE ISSUE FOR US IS REALLY THAT, THAT WE 

THINK -- I AGREE THAT THE FILING DEADLINE IS MIDNIGHT. 

BUT FOR SOMETHING THAT WE HAVE TO PARTICIPATE IN, I THINK 

THAT IT'S -- YOU KNOW, OUR PREFERENCE IS NOT TO BE WORKING AT 

QUARTER TO 12:00 ON REVIEWING THE FINAL DRAFT OF SOMETHING THAT 

WE JUST GOT. 

SO I AGREE THAT WE ALL HAVE MIDNIGHT TO FILE, BUT I DO 

THINK THAT AN ISSUE OF, YOU KNOW, WHAT TIME ARE WE GETTING THE 

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FINAL VERSION DONE WITH EACH OTHER IS STILL FAIRLY BURDENSOME 

TO US, AND WE'RE GOING TO HAVE JOINT FILINGS ON THE FINAL -- ON 

THE PRETRIAL AND OTHER MATTERS. 

THE COURT: UM-HUM. I'M WONDERING, COULD YOU WORK 

OUT A HAPPY MIDDLE GROUND? I MEAN, THE DEFENDANTS WANT 

MIDNIGHT, PLAINTIFFS WANT 7:00. COULD WE WORK OUT 9:00 P.M. OR 

SOMETHING IN THE MIDDLE? I MEAN, WHAT -- 10:00 P.M. OR JUST -- 

CAN YOU WORK OUT SOME MIDDLE GROUND, OR IS THAT NOT POSSIBLE? 

YOU'RE TALKING ABOUT, WHAT, LIKE THE JOINT CASE MANAGEMENT 

STATEMENT AND -- 

MS. MILICI: YES. 

MR. BORNSTEIN: YOUR HONOR, OUR CONCERN IS WE HAVE -- 

YOU KNOW, THE BULK OF OUR TEAM IS IN CALIFORNIA. I UNDERSTAND 

THE FTC IS -- THE BULK OF THEIR TEAM IS IN WASHINGTON. 

WE HAVE A CLIENT THAT WE NEED TO COORDINATE WHO'S HERE ON 

PACIFIC TIME, AND THERE'S A LOT OF PEOPLE WHO, WHO NEED TO 

WEIGH IN. ESPECIALLY AS WE GET CLOSER TO TRIAL, THE FILINGS 

ARE PRETTY IMPORTANT. AND WE HAVE A DEADLINE, WE'RE ALL 

WORKING TOWARDS IT, AND WE'D LIKE TO GET THINGS DONE EARLIER. 

THE COURT: UM-HUM. 

MR. BORNSTEIN: BUT DEPRIVING US OF THAT TIME, 

ESPECIALLY GIVEN THE TIME DIFFERENCE, IS A CHALLENGE. 

THE COURT: OKAY. I'M NOT GOING TO GET INVOLVED IN 

THAT. PLEASE JUST TRY TO WORK THINGS OUT AS EARLY AS POSSIBLE 

SO PEOPLE ARE NOT HAVING TO WORK UNTIL MIDNIGHT OR 1:00 A.M. 

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OKAY. BUT AT LEAST AS FAR AS SEALING MOTIONS, YOU'RE 

GOING TO FILE THEN YOUR SEALING MOTIONS THE DAY AFTER YOU FILE 

WHATEVER THE UNDERLYING DOCUMENT IS. OKAY? 

BECAUSE WHAT I WANTED TO AVOID IS WHAT'S BEEN HAPPENING IN 

TOO MANY SEALING MOTIONS IS THAT THE FILING PARTY JUST TRIES TO 

SEAL EVERYTHING THAT A PARTY HAS DESIGNATED CONFIDENTIAL, AND 

THEN IT TURNS OUT THAT THE PARTY WHO OWNS THAT CONFIDENTIAL 

INFORMATION DOESN'T CARE ABOUT CERTAIN PORTIONS OF IT, AND THEN 

IT'S REALLY HARD FOR US THEN TO HAVE TO TRACK EVERY SINGLE 

REQUEST AND WHAT PORTION WAS THEN WITHDRAWN AND THEN WHAT'S 

STILL A LIVE DISPUTE. 

SO TO THE EXTENT YOU CAN JUST SAY, "OKAY, WE HAVE MET AND 

CONFERRED, THIS IS THE ONLY PART THAT NEEDS A RULING," IT JUST 

SAVES US AN INCREDIBLE AMOUNT OF FRUSTRATION AND TIME. 

MR. BORNSTEIN: CERTAINLY. 

MS. MILICI: CERTAINLY. AND I THINK WE CAN STILL DO 

THAT, AND DO THAT EFFECTIVELY, EVEN IF WE FILE THE 

ADMINISTRATIVE MOTION TO SEAL THE NEXT DAY. 

MR. BORNSTEIN: MS. MILICI AND I HAVE SOMETHING OF A 

STANDING 6:00 P.M. CALL THESE DAYS ON JOINT FILINGS. 

THE COURT: OKAY. ALL RIGHT. SO THEN YOUR JOINT 

SEALING MOTIONS ARE DUE THE DAY AFTER THE UNDERLYING DOCUMENT 

WAS FILED. OKAY? SO I HOPE THAT TAKES CARE OF SOME OF YOUR 

HEADACHES. 

MR. BORNSTEIN: IT DOES, YOUR HONOR. THANK YOU. 

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THE COURT: OKAY. SO THAT WAS ALL ON MY LIST. 

IS THERE ANYTHING ELSE ON YOUR LIST? 

MR. BORNSTEIN: NOT FOR QUALCOMM, YOUR HONOR. THANK 

YOU. 

THE COURT: OKAY. AND THEN JUST, YOU KNOW, ONE LAST 

ITEM. I MEAN, I CERTAINLY WANT TO ENCOURAGE YOU, DO YOU WANT 

ANY ALTERNATIVE DISPUTE RESOLUTION? OR NOT? 

MS. MILICI: I THINK THAT THE FTC'S POSITION ON THAT 

HASN'T CHANGED. WE ARE FULLY CAPABLE OF ENGAGING PRODUCTIVELY 

IN SETTLEMENT DISCUSSIONS AND TO REACH SETTLEMENTS WHEN THEY'RE 

IN THE PUBLIC INTEREST, AND I'M NOT SURE THAT AN ADR PROCESS 

WOULD BE -- WOULD ADD MUCH VALUE TO THAT. 

THE COURT: OKAY. SO YOU WOULD JUST PREFER HAVING 

DIRECT DISCUSSIONS RATHER THAN BRINGING IN A THIRD PARTY?

MS. MILICI: YES.

MR. BORNSTEIN: AT THIS POINT, YOUR HONOR, WE AGREE 

WITH THAT. 

THE COURT: OKAY. ALL RIGHT. WELL, I'M HAPPY TO 

REVISIT THAT AT THE PTC IF YOU THINK AT THAT POINT THE 

INVOLVEMENT OF A NEUTRAL IS HELPFUL. 

MR. BORNSTEIN: THANK YOU. 

THE COURT: OKAY. AND THEN THE OTHER THING IS I DO 

NOT VACATE DATES UNLESS I HAVE A STIPULATION OF DISMISSAL. 

NOW, IF YOU REACH AN AGREEMENT AND YOU NEED SOME TIME TO 

ACTUALLY EXECUTE THE CONDITIONS OF THAT AGREEMENT, YOU'RE 

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ALWAYS WELCOME TO STIPULATE TO A DISMISSAL WITHOUT PREJUDICE, 

WITH THE PROVISION THAT THE COURT RETAIN JURISDICTION TO 

ENFORCE THE SETTLEMENT. AND THEN ONCE ALL THE TERMS ARE 

EXECUTED, AT THAT POINT THEN FILE A STIPULATION OF DISMISSAL 

WITH PREJUDICE. SO THAT'S ONE OPTION TO TAKE CARE OF IT IF YOU 

NEED TIME TO EXECUTE TERMS. 

BUT I -- YOU KNOW, WE'RE SO CLOSE -- YOU KNOW, WE HAVE A 

PRETRIAL CONFERENCE MID-DECEMBER, WE HAVE A TRIAL JANUARY 4TH. 

WE'RE SO CLOSE, I'M NOT GOING TO MOVE THE DATES. OKAY? OR 

VACATE THE DATES OR DELAY THE DATES. 

I MEAN, WE'RE, WHAT, WE'RE LESS THAN -- WE'RE, LIKE, TWO 

AND A HALF MONTHS TO TRIAL. 

MR. BORNSTEIN: CORRECT. 

THE COURT: SO THESE DATES ARE SET. THEY WILL NOT BE 

MOVED. OKAY? 

MR. BORNSTEIN: WE UNDERSTOOD THAT FROM YOUR HONOR'S 

STANDING GUIDELINES ALREADY. 

THE COURT: THANK YOU. 

MR. BORNSTEIN: SO THANK YOU FOR CONFIRMING FOR US. 

THE COURT: OKAY. ANYTHING ELSE? 

I DON'T THINK WE NEED ANOTHER CASE MANAGEMENT CONFERENCE. 

I THINK JUST THE PRETRIAL IN DECEMBER, WHICH IS ALREADY, WHAT, 

ONLY SEVEN WEEKS AWAY. 

MS. MILICI: I JUST HAVE A QUESTION ABOUT THE 

SEPARATE REMEDY PROCESS -- 

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THE COURT: WHAT'S THAT? 

MS. MILICI: -- THAT WE JUST DISCUSSED. I JUST WANT 

TO MAKE SURE I UNDERSTAND WHAT THE COURT IS THINKING ABOUT 

THAT, IS THAT IF THERE IS A FINDING OF LIABILITY FOLLOWING THE 

TRIAL, YOU WOULD WANT US TO SUBMIT A MOTION ASKING FOR 

INJUNCTIVE RELIEF AND -- 

THE COURT: WELL -- 

MS. MILICI: -- WITH ADDITIONAL EVIDENCE OR BASED ON 

THE EVIDENCE IN THE RECORD? I JUST WANT TO MAKE SURE THAT 

WE'RE BUILDING TOWARDS WHAT WE WOULD NEED TO HAVE AT THAT 

POINT. 

THE COURT: WELL, I MEAN, I GUESS THE OTHER OPTION IS 

I DON'T KNOW IF YOUR JOINT CASE MANAGEMENT STATEMENT WAS THE 

BRIEFING YOU WANTED ON THIS ISSUE, ON WHETHER THERE SHOULD BE A 

REOPENING OF DISCOVERY OR NOT. 

MR. BORNSTEIN: WELL, YOUR HONOR, I -- 

THE COURT: IS THIS THE BRIEFING -- I MEAN, THERE ARE 

CERTAIN CASES CITED. I -- 

MR. BORNSTEIN: SO, YOUR HONOR, WE'RE -- I DON'T MEAN 

TO INTERRUPT THE COURT, BUT WE'RE NOT LOOKING TO REOPEN 

DISCOVERY. THAT REALLY ISN'T THE ISSUE THAT WAS WHAT WE 

THOUGHT WAS BEFORE YOUR HONOR. 

OUR ISSUE IS IF THE COURT WERE PROCEEDING IN A WAY THAT WE 

HAD -- THAT WE WERE CONCERNED MIGHT BE THE WAY THE COURT WAS 

INTENDING TO PROCEED WHERE THERE WOULD BE AN INJUNCTION 

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POTENTIALLY ISSUED AT THE CONCLUSION OF THE TRIAL AND THE 

POST-TRIAL BRIEFING AND SO FORTH, WE WERE CONCERNED THAT WE 

WOULD NOT BE ABLE TO PUT IN FRONT OF YOUR HONOR EVIDENCE THAT 

WE BELIEVE THE COURT NEEDS TO BE AWARE OF. 

AND WE GAVE SOME EXAMPLES IN THE CASE MANAGEMENT 

STATEMENT, THINGS LIKE THE FACT THAT QUALCOMM IS NO LONGER 

SELLING CHIPS TO APPLE FOR THE FLAGSHIP DEVICES, WHICH WE THINK 

GOES TO THINGS LIKE MARKET POWER. 

AND IF YOUR HONOR IS CONTEMPLATING, AFTER A FINDING OF 

LIABILITY, IF THERE IS ONE, ENTERING A PROSPECTIVE FUTURE 

LOOKING INJUNCTION, WE THINK THE COURT NEEDS TO TAKE INTO 

ACCOUNT THINGS LIKE, FOR EXAMPLE, WHETHER OEM'S CURRENTLY DO 

HAVE ALTERNATIVES TO QUALCOMM AS A SUPPLIER. 

AND THAT'S EVIDENCE WE WANTED TO BE SURE WE COULD SUBMIT 

TO THE COURT. 

IF THE COURT IS INCLINED TO DEFER THAT QUESTION AS TO WHAT 

THE REMEDY WILL BE, I DO THINK THIS PROBLEM LARGELY GOES AWAY. 

MS. MILICI: YOUR HONOR, IF I COULD RESPOND? 

I THINK THAT WE'RE RAISING AN ISSUE THAT'S A LITTLE BIT 

DISINGENUOUS. THERE IS EVIDENCE IN THE RECORD ABOUT THE CHIPS 

THAT APPLE IS USING. THAT IS A PUBLIC FACT. THERE IS NO 

DANGER THAT YOUR HONOR IS NOT GOING TO HAVE THE INFORMATION 

ABOUT WHICH CHIPS APPLE IS USING. 

SO I THINK THAT THAT'S KIND OF A FEINT AT SOMETHING THAT'S 

NOT A REAL ISSUE. 

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THE COURT: UM-HUM. 

MS. MILICI: AND I THINK THAT, YOU KNOW, OUR CONCERN 

IS THAT QUALCOMM IS NOT ABLE TO, YOU KNOW, GET TO THE REMEDY 

PHASE AND SAY, "HERE'S A BUNCH OF DOCUMENTS FROM MY FILES THAT 

YOU SHOULD LOOK AT," AND WITHOUT US HAVING TIME TO CONDUCT 

DISCOVERY ON THOSE, AND TO CONDUCT ADEQUATE DISCOVERY WOULD 

REQUIRE GOING BACK TO THIRD PARTIES. 

THE COURT: UM-HUM. 

MS. MILICI: I THINK THAT WE CAN'T REALLY LOOK AT 

QUALCOMM'S VIEW OF THE NEGOTIATION WITHOUT LOOKING AT THE 

LICENSEE'S VIEW OF THAT NEGOTIATION AND THE OPTIONS THAT WERE 

AVAILABLE TO THE LICENSEE FOR CHIPS OR OTHERWISE AT THE TIME. 

THE COURT: UM-HUM. 

MS. MILICI: SO WE'RE -- I'M JUST TRYING TO 

ANTICIPATE NOW WHETHER YOU WOULD SEE AT THIS REMEDY PHASE, IF 

WE WERE TO CONSIDER REOPENING DISCOVERY AT THAT POINT, IT WOULD 

POTENTIALLY BE A VERY LARGE UNDERTAKING. 

THE COURT: UM-HUM. 

MS. MILICI: AND WE THINK -- AND WE THINK THAT THE 

CASE LAW IS PRETTY -- SUPPORTS US AND THAT THE COURT DOESN'T 

NEED TO LOOK AT A LOT OF POST-DISCOVERY EVIDENCE AND THAT 

THERE'S NO -- THERE'S NO AUTHORITY FOR THE PROPOSITION THAT A 

TRIAL THAT'S HELD NINE MONTHS AFTER THE CLOSE OF DISCOVERY IS, 

IS INVOLVING STALE EVIDENCE. 

MR. VAN NEST: YOUR HONOR? 

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MR. BORNSTEIN: SO YOU -- OH. 

THE COURT: SO YOU'RE SAYING YOU WANT -- SO THEN DO 

YOU WANT TO JUST BRIEF THAT FOR THE PTC? 

MS. MILICI: SURE. 

MR. BORNSTEIN: AND THAT WOULD BE BRIEFING WHAT, YOUR 

HONOR? 

THE COURT: THE QUESTION OF IF DISCOVERY CLOSED ON 

MARCH 30TH OF 2018, DOES THAT REQUIRE A REOPENING OF DISCOVERY 

ON WHAT IS THE CURRENT STATUS SINCE THE CLOSE OF DISCOVERY AT 

THE END OF MARCH OF THIS YEAR TO DETERMINE THE LIKELIHOOD OF 

RECURRENCE OF THE VIOLATION, WHICH IS A DETERMINATION THAT I 

BELIEVE IS NECESSARY FOR DETERMINING WHETHER A PERMANENT 

INJUNCTION SHOULD BE IMPOSED. IS THAT CORRECT? 

MR. BORNSTEIN: I THINK THAT IS RIGHT, YOUR HONOR. 

THE COURT: YEAH. 

MR. BORNSTEIN: THE ONE REFINEMENT IS THE ISSUE, FROM 

OUR PERSPECTIVE, ISN'T STRICTLY WHETHER DISCOVERY CAN BE 

REOPENED. IT'S A QUESTION -- OR SHOULD BE REOPENED. 

IT'S A QUESTION OF THE EVIDENCE THAT WE WOULD LIKE TO 

PRESENT TO THE COURT AT TRIAL. 

SO IF THE COURT IS INTENDING TO CONSIDER THE PROSPECT OF 

AN INJUNCTION, WE THINK THE COURT NEEDS TO BE AWARE OF CERTAIN 

FACTS. SOME OF THEM MAY BE PUBLIC, SOME OF THEM ARE NOT. 

WE'VE GIVEN AN EXAMPLE IN THE PRETRIAL -- IN THE 

SUBMISSION OF LICENSE AGREEMENTS THAT HAVE BEEN EXECUTED SINCE 

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THE CLOSE OF DISCOVERY. 

THE COURT: RIGHT. IF THAT'S GOING TO BE INTRODUCED, 

THEN I WOULD ALLOW THE FTC TO TAKE DISCOVERY INTO THAT. 

MR. BORNSTEIN: SURE, AND WE WOULDN'T OBJECT TO THAT, 

YOUR HONOR. 

THE ISSUE IS WHAT WE WOULD LIKE TO BE SURE THE COURT IS 

AWARE OF, GIVEN THE REQUIREMENT UNDER THE STATUTE THAT THE 

COURT FIND THAT QUALCOMM EITHER IS VIOLATING OR IS ABOUT TO 

VIOLATE THE FTC ACT. 

AND WE'RE HAPPY TO BRIEF THE ISSUE, YOUR HONOR. I THINK 

THAT'S A FINE IDEA. I JUST WANTED TO MAKE SURE THAT WE HAD A 

COMMON UNDERSTANDING ON WHAT THE SCOPE OF THE BRIEFING WAS. 

THAT'S ALL. 

MS. MILICI: AND I JUST WANT TO SAY, PART OF THE 

ISSUE HERE IS JUST A PRACTICAL ONE. 

THE COURT: OKAY. 

MS. MILICI: QUALCOMM DIDN'T RAISE THIS ISSUE WITH US 

UNTIL OCTOBER 8TH OF SAYING, "HERE ARE ALL THESE LICENSES THAT 

WE WANT TO ADD TO THE RECORD AND WE THINK THE COURT SHOULD 

CONSIDER," AND JUST AS A PRACTICAL MATTER, THERE IS ABSOLUTELY 

NO WAY THAT WE CAN CONDUCT MEANINGFUL DISCOVERY ON THOSE 

LICENSES, OR EVEN GET A SUBSTANTIAL DOCUMENT PRODUCTION, BY THE 

TIME OF TRIAL. SO, YOU KNOW, THAT'S PART OF THE ISSUE. 

AND I JUST WANT TO CORRECT MR. BORNSTEIN -- 

THE COURT: SO I GUESS WHAT'S YOUR CONCERN THEN? 

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LET'S SAY THERE'S A LIABILITY VERDICT, OR DECISION, FINDING OF 

FACT AND CONCLUSIONS OF LAW. THEN YOU'RE GOING TO SAY THEY 

WANT TO UNDERMINE THAT BECAUSE THEN THEY WANT TO REOPEN 

DISCOVERY AND GET INTO ALL THESE THINGS POST-DISCOVERY CUTOFF? 

MS. MILICI: MY CONCERN IS WE END UP SETTING UP 

HAVING TO HAVE AN ENTIRE OTHER DISCOVERY PERIOD AND AN ENTIRE 

OTHER HEARING ON THE EVIDENCE THAT'S UNCOVERED IN THAT 

DISCOVERY PERIOD. 

THE COURT: UM-HUM. 

MS. MILICI: IF THAT'S HOW THE COURT WANTS TO 

PROCEED, THEN WE WOULD BE INTERESTED TO KNOW THAT. BUT THAT 

IS -- THAT IS, YOU KNOW, POTENTIALLY A VERY LARGE UNDERTAKING. 

THE COURT: OKAY. THEN YOU KNOW WHAT? WHY DON'T WE 

JUST HAVE THIS BRIEFED THEN FOR THE PRETRIAL CONFERENCE? DO 

YOU WANT TO JUST BRIEF IT FOR THE PRETRIAL CONFERENCE? 

MS. MILICI: SURE. 

THE COURT: WE CAN DO THAT AS WELL. 

I MEAN, I'M JUST -- I'M ANTICIPATING, BASED ON HOW THIS 

CASE HAS BEEN LITIGATED, THAT THERE WILL BE A LOT OF ISSUES 

THAT HAVE BEEN TO BE RULED ON AT TRIAL, AND SO, YOU KNOW, TO 

THE EXTENT WE CAN TRY TO NARROW WHAT NEEDS TO BE DECIDED 

IMMEDIATELY, I THINK IT COULD BE HELPFUL. 

BUT I GUESS YOU'RE SAYING THAT'S JUST GOING TO CREATE MORE 

UNCERTAINTY AND CREATE MORE PROBLEMS. 

MS. MILICI: IT'S AN ISSUE FOR US OF WHETHER WE NEED 

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TO -- IF YOU WANTED TO REOPEN DISCOVERY ABOUT THESE AGREEMENTS 

POST-TRIAL -- YOU KNOW, THE OTHER PARTIES ARE MOSTLY FOREIGN 

CORPORATIONS. WE WOULD HAVE TO BE GETTING STARTED ON THOSE 

HAGUE CONVENTION REQUESTS PROBABLY NOW. 

THE COURT: UM-HUM. 

MS. MILICI: SO IT WOULD BE -- AND, AGAIN, WE DON'T 

THINK THAT THE STANDARD REQUIRES THAT. TO GRANT AN INJUNCTION, 

WE HAVE TO SHOW LIABILITY, AND THEN THAT THERE IS SOME 

COGNIZABLE RISK OF RECURRENCE. WE THINK WE CAN EASILY SHOW 

THAT ON THE CURRENT RECORD. 

THE STANDARD DOESN'T REQUIRE THAT WE SHOW AN IMMINENT 

THREAT OF RECURRENCE OR A CERTAINTY OF RECURRENCE. IT'S A 

REASONABLE RISK OF RECURRENCE. 

MR. BORNSTEIN: TO BE FAIR, YOUR HONOR, THE STATUTE 

REQUIRES -- AND THE FTC HAS CHOSEN TO COME TO COURT RATHER THAN 

TO USE ITS ADMINISTRATIVE PROCESSES, AND HAVING CHOSEN TO COME 

TO FEDERAL COURT UNDER SECTION 13(B), IT'S REQUIRED TO SHOW A 

CURRENT VIOLATION OR THAT QUALCOMM IS ABOUT TO VIOLATE. 

THE COURT: UM-HUM. 

MR. BORNSTEIN: IF IT WENT TO ITS ADMINISTRATIVE 

PROCESSES IN WASHINGTON, IT COULD SHOW THAT THERE HAS BEEN A 

VIOLATION. 

IT'S A DIFFERENT STANDARD, HAVING COME HERE TO SEEK RELIEF 

FROM YOUR HONOR, RATHER THAN DOING IT THE OLD-FASHIONED WAY, SO 

TO SPEAK. 

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THE COURT: OKAY. WHY DON'T WE DO THIS: WHY DON'T 

YOU BRIEF IT FOR THE MOTIONS IN -- THAT ARE DECIDED FOR THE 

PRETRIAL CONFERENCE. BUT I'M NOT GUARANTEEING THAT I WILL 

DECIDE IT THEN. I MAY STILL DECIDE TO JUST PUSH IT OFF AND 

DECIDE IT LATER. 

BUT I DON'T FEEL COMFORTABLE -- THIS IS A PRETTY IMPORTANT 

DECISION. I DON'T FEEL COMFORTABLE MAKING IT ON THE JOINT CASE 

MANAGEMENT STATEMENT. OKAY? 

SO WHY DON'T WE THEN SET A BRIEFING SCHEDULE WITH PAGE 

LIMITS? DO YOU WANT TO JUST DO -- WHAT ABOUT JUST DOING 

SIMULTANEOUS THREE-PAGE BRIEFS, AND THEN I'LL ALLOW YOU TO DO 

SIMULTANEOUS THREE-PAGE RESPONSES. DOES THAT SOUND OKAY? 

YOU'VE KIND OF ALREADY BRIEFED IT. I MEAN, I'VE ALREADY 

LOOKED AT SOME OF THESE CASES, FTC VERSUS EVANS PRODUCT

COMPANY, WHITTAKER VERSUS EXECUAIR, AND FTC VERSUS MEDLAB. 

YOU'VE ALREADY KIND OF BRIEFED IT SOMEWHAT, BUT I DON'T KNOW IF 

THERE'S ANYTHING MORE YOU WANT TO SAY, OR DO YOU WANT TO STAND 

ON YOUR JOINT CASE MANAGEMENT STATEMENT. I DON'T KNOW. 

MR. BORNSTEIN: I THINK WE'D APPRECIATE THE 

OPPORTUNITY TO BE HEARD ON IT AGAIN IN WRITING, YOUR HONOR. 

WHETHER IT'S THREE PAGES OR FIVE PAGES, I THINK THAT CONCEPT IS 

JUST FINE. 

MS. MILICI: WE'D BE HAPPY TO SUBMIT ADDITIONAL 

BRIEFING, AND I WOULD AGREE THAT FIVE PAGES WOULD BE MORE 

HELPFUL. 

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THE COURT: REALLY? BUT YOU'VE ALREADY KIND OF 

BRIEFED IT IN YOUR -- 

MR. BORNSTEIN: WE CAN DO THREE, YOUR HONOR. 

THE COURT: -- 20 PAGE JCMS. 

ALL RIGHT. WHY DON'T WE -- 

MR. VAN NEST: HOW ABOUT FOUR, YOUR HONOR? 

(LAUGHTER.) 

MR. BORNSTEIN: SO I -- 

MR. VAN NEST: SPEAKING OF PRIDE. 

MR. BORNSTEIN: I BROUGHT MR. VAN NEST SO HE COULD DO 

THE HAGGLING, YOUR HONOR. 

(LAUGHTER.) 

MR. VAN NEST: I'M SORRY. 

THE COURT: ALL RIGHT. I FEEL LIKE I'M SELLING AT A 

FLEA MARKET. BUT, OKAY, FOR THAT PERSISTENCE, FOUR PAGES, 

MR. VAN NEST. FOUR PAGES, FOUR PAGES. OKAY? YOU'LL DO 

SIMULTANEOUS BRIEFING, AND THEN I'LL LET YOU DO SIMULTANEOUS 

RESPONSES. OKAY? 

MR. BORNSTEIN: WHEN WOULD YOU LIKE THOSE, YOUR 

HONOR? 

THE COURT: DO YOU WANT TO JUST DO THOSE -- WELL, 

COULD YOU DO IT SOONER TO GIVE US A LITTLE MORE TIME TO PREPARE 

THAT? 

MS. MILICI: YES, YOUR HONOR. 

THE COURT: IT SOUNDS LIKE THAT ONE IS NOT DEPENDENT 

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ON DISCLOSURE OF EXHIBIT LIST OR ANYTHING. 

MR. BORNSTEIN: IT SHOULDN'T BE. 

THE COURT: OKAY. WHEN CAN YOU DO IT, SO WE CAN AT 

LEAST GET STARTED ON CERTAIN THINGS? 

MR. BORNSTEIN: WELL, THIS IS SOMETHING THAT YOU 

WOULD LIKE TO HAVE TEED UP FOR AT LEAST POTENTIAL DECISION AT 

THE PRETRIAL? IS THAT CORRECT? 

THE COURT: THAT'S RIGHT. AND I THINK OUR PRETRIAL 

IS DECEMBER 13TH. IS THAT RIGHT? 

MR. BORNSTEIN: THAT'S RIGHT, YOUR HONOR. 

THE COURT: OKAY. SO WHEN CAN YOU DO THAT? 

MR. BORNSTEIN: MAYBE -- 

MS. MILICI: THE FTC COULD DO IT VERY QUICKLY IF THE 

COURT WANTED TO LOOK AT IT SOONER THAN THAT. I THINK THAT THAT 

COULD BE HELPFUL TO THE PARTIES AS WE'RE IDENTIFYING THE 

EXHIBITS AND SO FORTH TO KNOW, YOU KNOW, WHAT THE COURT'S 

POSITION IS -- 

THE COURT: UM-HUM. 

MS. MILICI: -- ON THIS KIND OF EVIDENCE. 

THE COURT: OKAY. 

MS. MILICI: SO -- BUT WE COULD TURN AROUND A 

FOUR-PAGE BRIEF VERY, VERY QUICKLY. 

THE COURT: SO DO YOU WANT TO SAY, LIKE, NEXT MONDAY? 

NEXT TUESDAY? 

MS. MILICI: NEXT TUESDAY WILL BE -- 

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MR. BORNSTEIN: CAN WE LET THAT SLIP TO SOMEWHERE 

ABOUT THE END OF THE WEEK, THURSDAY OR FRIDAY OR SO, AND THEN 

HAVE THE RESPONSES SHORTLY THEREAFTER? SO IT'LL ALL BE TEED UP 

WELL BEFORE THANKSGIVING. 

MS. MILICI: WE HAVE THE PRETRIAL EXCHANGE SCHEDULED 

FOR NOVEMBER 8TH, SO I THINK THAT WE'RE ALREADY DOING QUITE A 

LOT THAT FOLLOWING WEEK. BUT, YES, WE COULD PUSH IT TO THE 

1ST, I SUPPOSE. 

MR. BORNSTEIN: NOVEMBER 1ST. 

THE COURT: WHAT ABOUT HALLOWEEN, OCTOBER 31? AND 

THEN DO YOU WANT A WEEK FOR THE RESPONSES? NOVEMBER 7TH? 

MR. BORNSTEIN: THAT'S FINE, YOUR HONOR. 

THE COURT: SO YOU CAN JUST TAKE CARE OF IT BEFORE 

YOUR -- OKAY. ALL RIGHT. 

SO LET ME ASK, ARE YOU ALL STILL DISCUSSING POSSIBLE 

RESOLUTION, OR NOT? AND IF YOU DON'T WANT TO COMMENT, THAT'S 

OKAY, TOO. 

MS. MILICI: MY UNDERSTANDING IS THAT THE PARTIES ARE 

STILL ENGAGED IN SETTLEMENT DISCUSSIONS. 

THE COURT: OKAY. ALL RIGHT. WELL, OBVIOUSLY IF 

YOU'RE GOING TO RESOLVE, DO IT BEFORE WE HAVE TO DO ALL THE 

WORK IN YOUR CASE, SO -- OKAY. WHAT ELSE? 

I DON'T THINK WE NEED ANOTHER CMC BEFORE THE DECEMBER 13TH 

PRETRIAL CONFERENCE. IS THAT CORRECT? 

MR. BORNSTEIN: I DON'T FORESEE A NEED FOR ONE 

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CURRENTLY. 

MS. MILICI: NO. 

THE COURT: NO? OKAY. WELL, THEN, I THINK THE NEXT 

COURT DATE WILL JUST BE YOUR PRETRIAL CONFERENCE. 

I DON'T HAVE ANYTHING ELSE. 

ANYTHING ELSE? 

MR. BORNSTEIN: NO. THANK YOU, YOUR HONOR. 

THE COURT: NO? OKAY. THANK YOU. 

MS. MILICI: THANK YOU. 

THE COURT: OKAY. THANK YOU. 

MR. VAN NEST: THANK YOU, YOUR HONOR. 

THE COURT: THANK YOU. 

(THE PROCEEDINGS WERE CONCLUDED AT 4:40 P.M.)

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UNITED STATES COURT REPORTERS

CERTIFICATE OF REPORTER

I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED 

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, 

280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 

CERTIFY: 

THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS 

A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE 

ABOVE-ENTITLED MATTER. 

_______________________________

LEE-ANNE SHORTRIDGE, CSR, CRR 

CERTIFICATE NUMBER 9595

DATED: OCTOBER 24, 2018

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