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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice) 

yeven@cravath.com 

825 Eighth Avenue 

New York, NY 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest, SBN 84065 

rvannest@keker.com 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 676-2289 

Facsimile: (415) 397-7188 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

Additional counsel on the 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-NMC 

DEFENDANT QUALCOMM 

INCORPORATED’S SUBMISSION 

REGARDING APPLE’S 

COMPLIANCE WITH THE 

COURT’S ORDERED 

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 483 Filed 01/12/18 Page 1 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

Pursuant to the Court’s January 5, 2018 Order (ECF No. 450), Qualcomm 

respectfully submits the following statement regarding Apple’s compliance with the 

December 21, 2017 Order imposing sanctions on Apple (the “December 21 Order”). 

(ECF No. 421.) 

In the December 21 Order, the Court required Apple to “complete its 

document production to Qualcomm of the 1.3 million documents identified in initial 

review, and hit by Court-ordered search terms by December 29, 2017”. (ECF No. 421 

at 2.) In doing so, the Court made clear that Apple is to err on the side of over-producing, 

i.e., that if Apple determines that it is unable to conduct a thorough review, it is to 

produce all documents, subject to a right to claw documents back. (See 12/20/17 Hearing 

Tr. 62:13-15 (“THE COURT: . . . I want you to complete your review by [December] 

29th and produce the stuff that’s responsive. But if you can’t get it done by the 29th, then 

my order is . . . you should produce whatever you’ve got subject to clawback.”). Apple 

has represented that it has complied with the Court’s order through its production to 

Qualcomm of 280,853 documents out of the 1.3 million, which according to Apple 

constitutes “all responsive non-privileged documents from the quality control population 

at the time”. (See 1/11/18 Email from E. Takashima to G. Bornstein.) 

Qualcomm questions whether the production of these 280,853 documents 

constitutes full compliance with the letter and the spirit of the December 21 Order, for 

two principal reasons. First, the discrepancy between the number of documents actually 

produced and the number of documents represented to have been in the “quality control 

process” is surprisingly large. Second, as discussed more fully in the Joint Status Report, 

it appears likely that Apple has over-withheld a material number of documents based on 

unsupportable assertions of privilege. As a result of these issues, Qualcomm believes 

that rather than err on the side of over-production, Apple has erred on the side of underproduction by deeming documents non-responsive or privileged. Qualcomm believes 

that a further factual record is necessary to assess whether Apple has met the 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 2 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

requirements in the December 21 Order for the termination of sanctions and respectfully 

suggests that Apple be required to submit a declaration addressing the issues discussed 

herein. 

I. Concerns Regarding Apple’s Responsiveness Determinations. 

Apple acknowledges that of the 1.3 million documents that were the 

subject of the Court’s order, one million were not produced. In a meet and confer on 

January 9, 2018, Apple represented that those one million documents were either 

withheld as privileged or were deemed non-responsive. In response to questions from 

Qualcomm as to how so many documents that had already been reviewed once could 

subsequently be deemed non-responsive, Apple asserted that the 1.3 million documents 

in the “quality control” process included documents that had been deemed nonresponsive upon initial review. That was never made clear in Apple’s prior status reports, 

the parties’ numerous meet and confers or discussion at hearings before the Court. Nor 

would it be typical, in Qualcomm’s experience, for all documents deemed nonresponsive on initial review to be counted as part of a second-round quality control 

process. Even if Apple’s quality control process included a sampling of documents 

deemed non-responsive, it is unclear why Apple would include all non-responsive 

documents in the 1.3 million figure disclosed to the Court, when only a small portion of 

them would actually be reviewed again. Despite meet and confer discussions, Apple’s 

production process remains opaque, and the basis for the discrepancy of one million 

documents remains unclear. 

Qualcomm notes that this is not the only instance in which the number of 

documents Apple had indicated were in the production pipeline did not translate to 

documents actually produced to Qualcomm. For example, in its November 17, 2017 

status report, Apple indicated that it was “in the process of producing approximately 

1.1 million documents”. (ECF No. 318.) Of that 1.1 million documents, Qualcomm 

ultimately received only approximately 689,000 documents, ten days later. Likewise, in 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 3 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

the November 17 status report, Apple stated that “695,000 documents are currently in the 

quality control process”. (ECF No. 318 at 1.) But Qualcomm did not receive any 

documents that were the subject of manual review until nearly one month later—on 

December 12, 2017—and at that point received only 103,057 such documents. 

The low volume of documents Apple has produced from key custodians 

also raises questions about the adequacy of Apple’s production. Two examples highlight 

Qualcomm’s concerns. For example, Johny Srouji, Apple’s Senior Vice President of 

Hardware Technologies, is one of the key executives involved in selecting baseband 

processors and other components for Apple’s devices. But Apple has produced only 

7,552 documents that appear in Mr. Srouji’s files, and logged and withheld an additional 

598 as privileged.1 It is difficult to accept that in his nine years at Apple, Mr. Srouji had 

only 8,150 emails and other documents that are responsive to Qualcomm’s requests for 

documents concerning issues that are central to his job, such as Apple’s complicated 

baseband processor selection process and its extensive technical requirements and 

demands for baseband processors to be used in its devices. 

A second example is Apple’s Chief IP Counsel, BJ Watrous, who has led 

or otherwise been directly involved in license negotiations with Qualcomm and other 

third parties that are a core focus of Qualcomm’s subpoenas. But Apple has produced 

only 2,260 documents that appear in Mr. Watrous’s files and logged and withheld a 

further 14,132 documents as privileged. It is likewise difficult to accept that in the six 

years Mr. Watrous served as Chief IP Counsel, he had only 16,392 emails and other 

documents that are responsive to Qualcomm’s requests for documents concerning issues 

that are central to his job, such as the licensing of cellular patents. 

 1

 These numbers include all documents for which Mr. Srouji was identified as a 

custodian or an alternate custodian, thereby including all documents that appeared in his 

files, even if the specific copy of the document produced to Qualcomm came from the 

files of a different custodian. The same is true for the numbers appearing in the 

following paragraph. 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 4 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

The discrepancies and unusual document volumes described above cause 

Qualcomm concern about the adequacy and completeness of Apple’s responsiveness 

determinations and, in Qualcomm’s view, militate in favor of developing a more 

complete factual record regarding Qualcomm’s compliance with the December 21 Order. 

II. Concerns Regarding Apple’s Privilege Determinations. 

As noted in the parties’ January 12, 2018 Joint Status Report, Apple’s 

privilege logs reveal that Apple expansively and improperly asserted privilege to 

withhold a large volume of documents from production. Without repeating in detail all 

the issues regarding Apple’s privilege logs that appear in the Joint Status Report, for the 

Court’s reference Qualcomm summarizes here the relevant substantive defects in Apple’s 

privilege determinations that Qualcomm has so far identified: 

First, Apple appears to have improperly withheld documents in their 

entirety whenever the documents contain any content over which Apple asserts a 

privilege claim, even if the documents also contain non-privileged content. 

Second, Apple has asserted attorney-client privilege or work product 

protection for communications that—on the face of the email subject lines—appear to 

constitute business discussions rather than communications of legal advice, including 

when no lawyer authored, received or is copied on the document. 

Third, Apple’s privilege logs contain numerous communications with 

third parties such as standards-setting organizations or commercial entities, including 

entities with which Apple was negotiating agreements or from which Apple was 

considering purchasing products. These documents cannot possibly be privileged. 

Indeed, Qualcomm has definitively confirmed the non-privileged status of some of these 

documents, which actually appear in Qualcomm’s own files or in document productions 

made to Qualcomm by third parties in this case. 

Fourth, the appearance on Apple’s privilege logs of documents that are 

obviously “spam” emails suggests a process in which Apple grossly over-privileged its 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 5 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

documents, perhaps using a privilege filter, without adequate attorney review to assess 

whether the privilege call was appropriate. 

Qualcomm recognizes that there can be good-faith errors in a large-scale 

privilege review, and Qualcomm does not believe that such errors, by themselves, would 

warrant a finding of non-compliance with the Court’s order. But if there were a process 

designed to grossly over-withhold documents as privileged, subject to further review and 

downgrading, as part of the effort to complete production by the Court-ordered date, then 

Qualcomm believes such a process would be inconsistent with the December 21 Order 

and the Court’s instructions to “produce whatever you’ve got subject to clawback” under 

the November 30, 2017 Rule 502(d) order. (12/20/17 Hearing Tr. 62:15.) 

III. Conclusion. 

For the foregoing reasons, Qualcomm believes that a further factual record 

is necessary to assess whether Apple has met the requirements in the December 21 Order 

for the termination of sanctions. Qualcomm respectfully suggests that Apple should be 

required to submit a declaration addressing the issues set forth above. 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 6 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

Dated: January 12, 2018 

 Respectfully submitted, 

 

CRAVATH, SWAINE & MOORE LLP, 

/s/ Gary A. Bornstein 

Gary A. Bornstein

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

Robert A. Van Nest 

Asim M. Bhansali 

Eugene M. Paige 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Tel: (415) 676-2289 

Fax: (415) 397-7188 

rvannest@keker.com 

abhansali@keker.com 

epaige@keker.com 

Richard S. Taffet 

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 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 7 of 8
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QUALCOMM'S SUBMISSION REGARDING APPLE'S PRODUCTION DEADLINES 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC 

Donn P. Pickett 

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 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 

Case 5:17-cv-00220-LHK Document 483 Filed 01/12/18 Page 8 of 8