Case No. 5:17-cv-220-LHK-NMC; Case No. 5:17-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, New York 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest 

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

THEODORE J. BOUTROUS, JR. (SBN 

132099)

tboutrous@gibsondunn.com 

DANIEL G. SWANSON (SBN 116556)

dswanson@gibsondunn.com

JASON C. LO (SBN 219030)

jlo@gibsondunn.com

JENNIFER J. RHO (SBN 254312)

jrho@gibsondunn.com 

MELISSA PHAN (SBN 266880)

mphan@gibsondunn.com

RYAN K. IWAHASHI (SBN 284766)

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

Tel: (213) 229-7000

Fax: (213) 229-7520

Attorneys for Non-Parties COMPAL 

ELECTRONICS INC., FIH MOBILE 

LTD., HON HAI PRECISION 

INDUSTRY CO., LTD., PEGATRON 

CORPORATION, AND WISTRON 

CORPORATION

Additional counsel listed in the signature block

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 AND NONPARTY CONTRACT 

MANUFACTURERS’ JOINT 

DISCOVERY STATEMENT

Courtroom: 7, 4th Floor

Judge: Hon. Nathanael M. Cousins 

IN RE QUALCOMM ANTITRUST 

LITIGATION

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

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Defendant Qualcomm Incorporated (“Qualcomm”) and Non-Parties Compal Electronics, 

Inc., FIH Mobile Ltd., Hon Hai Precision Industry Co., Ltd., Pegatron Corporation, and Wistron 

Corporation (collectively, the “CMs”) submit this joint statement concerning the CMs’ document 

productions.

I. Qualcomm’s Position

The CMs have violated this Court’s order that third parties complete document 

production by January 5, 2018. (ECF No. 308.) While fully aware of this deadline, they simply 

decided, without the Court’s permission, not to meet it. In October 2017, the CMs agreed to 

search for and produce documents from 27 custodians. At the December 20, 2017 hearing, the 

CMs further agreed to produce documents from an additional seven custodians, later reduced to 

six. Notwithstanding the Court’s order that third parties complete document production by 

January 5, 2018, the CMs informed Qualcomm on January 8 that their productions to date, which 

consist of approximately 154,000 documents,1do not include all responsive documents from the 

original 27 CM custodians. (See Jan. 8, 2018 Ltr. from J. Lo to R. Stark.) Although Qualcomm 

repeatedly asked the CMs to confirm their substantial completion date, for the first time since 

being served with subpoenas last summer, the CMs informed Qualcomm that they will not 

complete document production until February 16, 2018—a mere six weeks before the close of 

fact discovery. (Id.) Qualcomm requests that the Court (i) order the CMs to complete 

production of all responsive documents by January 19, 2018, and (ii) impose sanctions on each 

CM until they complete the production of documents from the original 27 custodians.

On October 13, 2017, over two months after being served with Qualcomm’s subpoenas, 

the CMs agreed to collect and produce documents from 27 custodians. At the time, Qualcomm 

asked the CMs to adhere to the December 15 deadline the Court imposed on Apple, and the CMs 

repeatedly stated that they were “working towards a December 15, 2017 deadline for substantial 

completion of production of the responsive documents, utilizing in the first instance the [October 

31, 2017 revised] custodian and search term disclosures that the CMs have provided”. (E.g., 

Nov. 10, 2017 Ltr. from J. Rho to R. Stark.) After the Court ordered that third-party productions 

be completed by January 5, 2018, Qualcomm repeatedly stated its expectation that the CMs meet 

that deadline at least for the original 27 CM custodians. (See, e.g., Dec. 21, 2017 Ltr. from 

R. Stark to J. Lo.) The CMs’ representations before this Court furthered that expectation. 

During the December 20 hearing, the Court stated, “[t]here’s been a suggestion that it might take 

more time than January 5th [to complete production] . . . . I haven’t granted that request”. (Tr. 

49:13-15.) Qualcomm explained that its “understanding from Mr. Lo is [that the CMs] believe 

they’ll make the January 5th deadline, at least for their original set of custodians”. (Id. at 49:19-

22.) The CMs agreed with the Court’s summary and stated that “with what Mr. Stark said, I 

think we have a basic set of agreements”. (Id. at 50:3-8.) The Court’s subsequent order reflected 

the same understanding: “The Court reiterates that it will not be granting an extension to the 

January 5, 2018, deadline for third party discovery production”. (ECF No. 421.) Ten days prior 

to the January 5 deadline, the CMs told Qualcomm that they would be “continuously monitoring 

the progress of the review toward [the January 5 production] deadline and will confer with 

[Qualcomm] in the event we anticipate any exceptions with respect to individual custodians”. 

(See Dec. 26, 2017 Ltr. from J. Lo to R. Stark.) But the CMs never told Qualcomm or the Court 

that they would not meet the Court’s January 5 deadline for any of the original 27 custodians 

until January 8—three days after the Court’s deadline had passed. Indeed, in their December 26 

 

1 The CMs produced an additional 48,000 documents on January 12, 2018, the date of the filing of this motion.

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letter, the CMs stated that their “intention remains to make every effort to complete review of all 

of the original custodians by January 5, 2018 using the revised search terms”. 

With respect to the additional six custodians the CMs belatedly agreed to add, Qualcomm 

acknowledged that the CMs would not be able to meet the Court’s January 5 deadline but

repeatedly asked them if they would be able to produce those custodians’ documents by the end 

of January or to propose a date by which they would complete such production. (See e.g., Dec. 

21, 2017 Ltr. from R. Stark to J. Lo.) Qualcomm also pointed out that “the January 5 deadline 

remains in force” and that if the CMs “need to propose to Judge Koh some modest stipulated 

extension of time for completion on the seven additional custodians, we will need to address that 

soon”. (Dec. 21, 2017 Ltr. from R. Stark to J. Lo.) The CMs never proposed such a stipulation. 

Rather than respond to these requests or abide by their prior representations, on

January 8, 2018, the CMs stated that they would “adhere as closely as possible to” a production 

deadline of February 9, 2018, for the original 27 custodians, and of February 16, 2018, for the 

additional six custodians. (Jan. 8, 2018 Ltr. from J. Lo to R. Stark.) The CMs’ proposed 

production schedule, which exceeds the Court-ordered deadline by more than a month, is 

unacceptable and would severely prejudice Qualcomm’s ability to defend itself in these Actions. 

The CMs’ failure to comply with the January 5 production deadline is due to their own 

foot dragging. The CMs repeatedly refused to identify any of their employees who would have 

relevant documents and refused to provide search strings that reflected Qualcomm’s subpoena. 

The CMs allege that they were unable to meet the January 5 deadline because the Court ordered 

compromises regarding custodians and search terms on December 20, 2017 and January 2, 2018. 

But the CMs have had nearly three months to collect, review, and produce documents from the 

original 27 custodians. Any delay in reaching agreement on additional custodians was due to the

CMs’ repeated refusal to provide information about anyone other than the original custodians. 

Similarly, the search strings ordered by the Court on January 2 were hardly “additional” terms. 

The CMs first proposed search terms on October 13, 2017, and served a revised proposal on 

October 31, 2017. (See Oct. 31, 2017 Ltr. from J. Rho to R. Stark.) Qualcomm proposed 

modifications to the CMs’ October 31 proposal on December 7, 2017, three days after the CMs 

first provided metrics to Qualcomm. Of the 11 search strings resolved by the Court’s January 2, 

2018 order, only one string was initially drafted by Qualcomm, which it proposed on December

7. The Court further ordered that the CMs (i) run six strings as originally drafted in the CMs’

October 31 proposal, (ii) run one string with Qualcomm’s proposed edits, and (iii) omit three 

strings first proposed by the CMs. The search strings ordered by the Court thus do not justify the 

CMs’ delay. In fact, during the January 2 hearing, the CMs did not give any indication to the 

Court or to Qualcomm that they would be unable to meet the January 5 deadline as a result of the 

Court’s order. 

The CMs’ failure to comply with the court-ordered deadline in this case is a result of their 

own inaction. The CMs claim that the application of the final search terms increases their pool 

of documents for review to at least 2.2 million. But, by their own admission, the CMs collected

over 2 million documents only after November 30, 2017. (See Dec. 19, 2017 Ltr. from J. Lo to 

R. Stark.) The CMs most recent metrics (which they have not shared with Qualcomm) may 

indicate that CMs must review additional documents, but, if so, that likely is because their 

collection, review and production of documents only started in earnest in December. The CMs

also contend that, because of the high volume of Chinese documents, “[i]mmediately after the 

hearing on December 20, [they] took steps to drastically increase [their] review capacity”, Jan. 8, 

2018, Ltr. from J. Lo to R. Stark, by opening a “new review center shortly after the new year”, 

Case 5:17-cv-00220-LHK Document 485 Filed 01/13/18 Page 3 of 10
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Dec. 29, 2017 Ltr. from J. Lo. to R. Stark. But the CMs, which are Taiwanese and Chinese 

corporations, have always known that their productions would include a significant number of 

Chinese documents; the CMs acknowledged the substantial volume of foreign language 

documents and the ensuing need for “document reviewers with special language skills” as early 

as October 2017. (Oct. 23, 2017 Ltr. from J. Rho to R. Stark.) The CMs have also been aware 

of the January 5 production deadline since November 15, 2017. The CMs’ decision to wait until 

January 2018 to add additional reviewers is inexplicable. Contrary to their assertions, the CMs 

have not taken “all reasonable steps within [their] power to insure compliance with the court’s 

orders”. Their failure to comply with the January 5 deadline is entirely of their own making.

Qualcomm is now severely prejudiced. The CMs’ productions are critical to the fact and 

expert depositions taking place in the coming months. Nine of the FTC’s disclosed witnesses are 

CM employees, and the CMs have accepted service of Qualcomm’s deposition subpoenas that 

notice depositions of those witnesses as early as February 26, 2018. If the CMs are permitted to 

flout the Court-ordered production deadline until mid-February, it will be impossible for 

Qualcomm to review the documents, obtain translations, and take depositions. This Court has 

already warned third parties “that they, too, need to comply with the court deadlines”. (Dec. 20, 

2017 Tr. 60:23-24.) Given the rapidly approaching deadline for completion of all fact discovery, 

the Court should order the CMs to produce all responsive documents by January 19, 2018. 

Because further encouragement will incentivize the CMs to timely complete their document 

productions, Qualcomm petitions the Court to order meaningful sanctions on each CM until they 

complete document production from the original 27 custodians, which should run retroactively to 

the date of noncompliance with the Court’s Order. Finally, Qualcomm requests that the Court 

order the CMs to produce a privilege log by January 25, 2018.

II. The CMs’ Position

Qualcomm’s position ignores the most salient point: The dramatic increase in the CMs’ 

document review burden that recently occurred was due solely to Qualcomm’s refusal to limit 

the scope of its overbroad third-party subpoena requests and its unreasonable prolongation of the 

meet and confer process. Although the CMs understood there was a cut-off for third-party 

discovery, because of the last minute increase in review scope—which required travel to Asia to 

collect documents—the CMs could not disclose by when they expected to complete their 

production or move for a meaningful extension before January 5. In any event, the CMs are 

moving for a limited extension for their production of documents with Judge Koh, which may 

moot the issues in this discovery statement. Ever since receiving the subpoenas in this case, the 

CMs have taken all reasonable steps to complete their production in a timely manner. The CMs 

have already produced over 231,000 documents and 1.5 million pages, and Qualcomm will not 

suffer any prejudice while the CMs complete their expedited production of documents, 

particularly because the CMs have outlined a schedule whereby documents from expected 

deponents in this case will be produced over a month before their noticed deposition date.

The scope of review increased at the last minute pursuant to Court order. As 

Qualcomm and the Court are aware, two major changes to the scope of document discovery 

occurred within the last four weeks. First, although the CMs have been collecting documents 

since August 2017 and reviewing documents since October 2017, and although this Court denied 

Qualcomm’s original motion to compel, at the strong suggestion by the Court, the CMs agreed to 

add six additional document custodians and dramatically alter the search terms used to identify 

documents for review in the last four weeks. Specifically, on December 20, the CMs agreed to 

Case 5:17-cv-00220-LHK Document 485 Filed 01/13/18 Page 4 of 10
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add six additional document custodians2and substantially broaden the search terms used to 

identify documents for review, which involved revising over 90 of the search terms that the CMs 

had been using for months in order to accommodate Qualcomm’s various requests to the Court. 

The application of these additional search terms increases the CMs’ pool of documents for 

review to at least 2.2 million documents. 

Second, the CMs’ document discovery obligations again dramatically increased in scope 

on January 2, 2018 when—despite the CMs’ prior agreements to add custodians and search 

terms—Qualcomm demanded, and the Court granted, an additional request that the CMs apply 

an additional 8 search strings to identify documents for manual review. The January 2, 2018 

order again increased the total pool of documents beyond that resulting from the December 20, 

2017 compromises by an additional 250,000 documents. These two events prevented the CMs 

from completing their productions by the January 5, 2018 deadline. 

Qualcomm will not suffer any prejudice from the CMs’ proposed schedule. The CMs 

have produced, and will continue to produce, documents on a rolling basis. The CMs have 

provided Qualcomm with a proposed production schedule that specifies when the production of 

custodial documents will be complete, with the completion of production from all of original 

custodians by January 19 for two CMs, January 26 for three CMs, and February 9 for all CMs, 

followed by completion of production for the six additional custodians by February 16. 

Moreover, the CMs’ proposed schedule specifies, on a custodian-by-custodian basis, that the 

production of each custodian noticed for deposition will be complete over a month before their 

respective deposition date noticed by Qualcomm. 

The CMs have taken all reasonable steps to complete the review in a timely fashion. The 

review of documents by the CMs is particularly difficult and burdensome because many of the 

documents are primarily in Chinese. Of course, the CMs anticipated that most of their 

documents would be in Chinese and took steps to start the review early. The CMs started 

collecting documents from custodians in Asia the week of August 21, began hiring bilingual 

reviewers, and began reviewing documents hitting on their proposed search terms within three 

days of proposing such terms. Since that time, the CMs have increased their review capacity 

substantially and now have over 70 attorneys—most of whom are bilingual—reviewing 

documents around the clock across 3 different time zones, including through weekends and 

holidays. As of January 5, the CMs had produced over 182,000 documents and 1.3 million 

pages, and produced another 49,000 documents today. 

Any alleged prejudice is of Qualcomm’s own creation. That Qualcomm has noticed the 

depositions of the CMs’ witnesses for no earlier than February 26 confirms that Qualcomm will 

not suffer prejudice caused by the CMs’ schedule. Moreover, Qualcomm refused to propose any 

search terms or custodians specific to this action, despite repeated requests from the CMs, until 

December. Because Qualcomm remained silent about its position, and did not meaningfully 

meet and confer with the CMs, the CMs proactively began searching for and reviewing 

documents for production in October.

Qualcomm’s failure to limit its requests or to substantively meet and confer caused the 

delay about which it now complains. The last-minute increases in the CMs’ review scope could 

have been resolved earlier had Qualcomm participated in the meet and confer process in a 

meaningful manner prior to December. Although Qualcomm first served its subpoenas in July 

 

2

 The CMs were not able to obtain all of these custodians’ documents until January 8, 2018, because of the 

impending holidays and the fact that all six of the additional custodians reside and are employed in Asia, where each 

CM is headquartered.

Case 5:17-cv-00220-LHK Document 485 Filed 01/13/18 Page 5 of 10
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and August 2017, Qualcomm’s subpoena requests were substantially overbroad and not 

proportional to the needs of the case. As a result, on numerous occasions, the CMs offered to 

meet and confer to discuss the scope of the requests. Throughout these meet and confer 

discussions, Qualcomm insisted that the CMs’ concerns and objections would be addressed 

through limited search terms and custodians, as opposed to narrowing the scope of Qualcomm’s 

requests. E.g., August 10, 2017 letter from R. Stark to J. Rho3(“We responded that—as for 

other Requests—any concerns regarding burden can adequately be addressed through custodial 

limitations and the use of search terms.”). When it came time to discuss those search terms and 

custodians, however, Qualcomm refused to negotiate meaningfully. 

For example, at Qualcomm’s insistence, in October, the CMs proposed detailed search 

strings based upon Qualcomm’s search terms and the meet and confer discussions. Qualcomm 

refused even to discuss the CMs’ proposed search terms at that time, instead serving a competing 

set of search terms based not upon its third party subpoena requests to the CMs, but upon search 

terms it used against Apple Inc., a different third party in these cases. See October 26 letter from 

R. Stark to J. Lo (“Qualcomm based its counterproposal on search terms that Qualcomm sent to 

Apple.”). Indeed, Qualcomm sought to compel a modified version of these search terms in the 

November 18 discovery statement—notably, without even attaching the subpoena requests for 

the Court’s review. At the hearing on November 30, 2017, the Court properly denied 

Qualcomm’s motion, but ordered the parties to continue to meet and confer. A full week after 

that Order, and on December 7, nearly two months after the CMs first proposed search terms, 

Qualcomm finally proposed modifications and additions to the CMs’ proposed search strings. 

Qualcomm used the same delay tactic with its proposed custodians. Qualcomm moved to 

add 17 custodians in the November 18 discovery statement. After the Court denied that request 

on November 30, Qualcomm withdrew its request for 13 of those 17 custodians, and for 2 other 

custodians they had demanded, and instead, on December 6, insisted upon 14 different

custodians identified for the first time.

In sum, Qualcomm did not engage meaningfully in the meet and confer process until less 

than a month before January 5. As a result, the Court did not have an opportunity to rule upon 

the issues until late December, causing substantial changes to the scope of the CMs’ document 

review obligations right before and after the Christmas and New Year’s holidays. 

There is no cause to impose sanctions. Although the Court “may hold in contempt a 

person who, having been served, fails without adequate excuse to obey the subpoena or an order

related to it,” Fed. R. Civ. P. 45(g), a non-party cannot be held in contempt if it “ha[s] performed 

all reasonable steps within [its] power to insure compliance with the court’s orders.” Stone v. 

City of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992) (internal quotation omitted). As 

described above, the CMs have taken all reasonable steps to adhere to the Court’s schedule, but, 

as discussed above, were stymied by the last-minute increases in review scope caused by 

Qualcomm’s own actions. The CMs have undertaken enormous expense to increase their review 

capacity, including by opening up a third review center to increase the pool of qualified Chineselanguage reviewers. Although the CMs are willing to expend the resources to complete the 

review as quickly as possible, they are subject to the protections afforded to nonparties. In re 

NCAA Student-Athlete Name & Likeness Licensing Litig., No. 09-CV-01967 CW (NC), 2012 

WL 4846522, at *2 (N.D. Cal. Aug. 7, 2012) (“The Ninth Circuit has long held that nonparties 

subject to discovery requests deserve extra protection from the courts.”).

 

3

 The CMs have not attached the cited discovery letters to this Statement in light of prior guidance from the Court, 

but are prepared to file them at the Court’s request.

Case 5:17-cv-00220-LHK Document 485 Filed 01/13/18 Page 6 of 10
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Case No. 5:17-cv-220-LHK-NMC; Case No. 5:17-md-2773-LHK-NMC

Dated: January 13, 2017

Respectfully submitted,

CRAVATH, SWAINE & MOORE LLP

/s/ Richard J. Stark

Gary A. Bornstein

Richard J. Stark

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

rstark@cravath.com

Robert A. Van Nest

Asim M. Bhansali

Eugene M. Paige

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

Telephone: (415) 676-2289

Facsimile: (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

Telephone: (212) 369-6000

Facsimile: (212) 309-6001

richard.taffet@morganlewis.co

m

Willard K. Tom

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

Telephone: (202) 739-3000

Facsimile: (202) 739-3001

willard.tom@morganlewis.com

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Donn P. Pickett

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

donn.pickett@morganlewis.co

m

geoffrey.holtz@morganlewis.c

om

Attorneys for Qualcomm Incorporated

 /s/ Jason C. Lo

THEODORE J. BOUTROUS, JR. (SBN 132099)

tboutrous@gibsondunn.com 

DANIEL G. SWANSON (SBN 116556)

dswanson@gibsondunn.com

JASON C. LO (SBN 219030)

jlo@gibsondunn.com

JENNIFER J. RHO (SBN 254312)

jrho@gibsondunn.com 

MELISSA PHAN (SBN 266880)

mphan@gibsondunn.com

RYAN K. IWAHASHI (SBN 284766)

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

Tel: (213) 229-7000; Fax: (213) 229-7520

CYNTHIA RICHMAN (DC Bar No. 492089)

crichman@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036

Tel: (202) 955-8500; Fax: (202) 467-0539

Attorneys for Non-Parties Compal Electronics, Inc., FIH 

Mobile Ltd., Hon Hai Precision Industry Co., Ltd., 

Pegatron Corporation, and Wistron Corporation

HUGH F. BANGASSER 

hugh.bangasser@klgates.com

CHRISTOPHER M. WYANT 

chris.wyant@klgates.com

J. TIMOTHY HOBBS 

tim.hobbs@klgates.com

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K&L GATES LLP

925 Fourth Avenue, Suite 2900

Seattle, Washington 98104

Telephone: +1 206 623 7580

Facsimile: +1 206 370 6371

CAITLIN C. BLANCHE (SBN 254109)

caitlin.blanche@klgates.com

K&L GATES LLP

1 Park Plaza Twelfth Floor

Irvine, CA 92614

Telephone: +1 949 253 0900

Facsimile: +1 949 253 0902

Attorneys for Non-Party Wistron Corporation

.

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FILER’S ATTESTATION

I, Richard J. Stark, am the ECF user whose identification and password are being used to 

file this Joint Discovery Statement. In compliance with Civil Local Rule 5-1(i)(3), I hereby 

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

/s/ Richard J. Stark

Richard J. Stark

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