1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER DENYING 

PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-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, 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 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 STATEMENT AND 

[PROPOSED] ORDER DENYING 

PLAINTIFFS’ REQUEST FOR 

APPOINTMENT OF A SPECIAL 

MASTER

IN RE QUALCOMM ANTITRUST 

LITIGATION

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

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 1 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER DENYING 

PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

QUALCOMM’S STATEMENT

In accordance with the Court’s Order of February 15, 2018, Defendant Qualcomm 

Incorporated (“Qualcomm”) met and conferred with Plaintiff Federal Trade Commission, with 

counsel for Plaintiffs in Case No. 5:17-md-02773-LHK-NMC (collectively, “Plaintiffs”) and 

with counsel for Apple Inc. (“Apple”) regarding the appointment of a special master in these 

cases. The parties did not reach agreement, and therefore agreed to provide their proposed 

Orders to the Court. Today, after 4:00 p.m. PST, Plaintiffs informed Qualcomm for the first time 

that by 5:00 p.m., in addition to a proposed Order, they would be filing what amounts to a 

unilateral discovery statement, in which Plaintiffs raise new arguments and cite new documents, 

and in which the FTC states—also for the first time—that it is not authorized to bear any costs 

associated with the special master it is asking the Court to appoint. As a result, Qualcomm was 

not given an opportunity to respond to these arguments and address these documents, and does 

not endeavor to do so below. Instead, Qualcomm provides below a short statement as per the 

Court’s Order, and addresses at a high level several issues in Plaintiffs’ proposed Order.1

As Qualcomm stated at the February 15, 2018 hearing, Qualcomm is of the view that the 

appointment of a special master in these cases is not warranted. Discovery has been ongoing for 

nearly ten months (and for another two years prior to this litigation in the context of the FTC’s 

pre-complaint investigation), and the fact discovery period is scheduled to close in just over five

weeks—on March 30, 2018. Even under the most efficient process, a special master would be 

unlikely to contribute meaningfully to the resolution of any discovery disputes between now and 

then—or, indeed, for many months thereafter. As previously noted by Qualcomm, in In re Vioxx 

Liability Litigation, 501 F. Supp. 2d 789 (E.D. La. 2007), a case relied on by Plaintiffs, it took 

nearly four months from the date of the special master’s appointment until the Court adopted the 

 1 Plaintiffs did provide Qualcomm with their proposed Order earlier in the day today (at 

around 10:00 a.m. PST), and therefore Qualcomm is able to provide its initial reaction to that 

proposed Order. Should the Court find it helpful, Qualcomm is prepared to provide a response to 

Plaintiffs’ statement on a schedule ordered by the Court.

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 2 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

special master’s recommendations regarding a single dispute concerning approximately 2,600 

documents—even though the special master there had the support of a law firm and a “staff of 

paralegals”, id. at 791, 792, 794. 

By contrast, this Court has expeditiously and effectively adjudicated the parties’ 

discovery disputes. Moreover, Qualcomm has been and continues to be willing quickly to 

address reasonable requests for re-review of documents identified by Plaintiffs as potentially 

incorrectly withheld or redacted. In just the last few weeks, Qualcomm has re-reviewed 1,489 

documents at Plaintiffs’ request in advance of scheduled depositions, in addition to the 1,000 

entries Plaintiffs previously selected from Qualcomm’s privilege log and the 3,571 entries and 

redacted documents re-reviewed by Qualcomm before depositions began. Qualcomm has met 

every deadline ordered by the Court throughout this process. And Qualcomm already has agreed 

to Plaintiffs’ request that it re-review almost 2,000 additional documents over the next ten days, 

ahead of two additional depositions. The current process is working more efficiently and 

expeditiously than any process that would be conducted by a special master, and Plaintiffs have 

not identified any problems with Qualcomm’s re-review. 

Nonetheless, should the Court decide to appoint a special master, Qualcomm respectfully 

disagrees with Plaintiffs’ proposed Order on a number of fronts. Qualcomm highlights four 

particular areas of disagreement below. 

First, Qualcomm disagrees with Plaintiffs’ statement that the parties’ discovery disputes 

“cannot be effectively and timely addressed by an available district judge or magistrate judge of 

this district”. (ECF No. 343-04 ¶ 3.) As noted, the Court has shown itself more than able over 

the course of many months to resolve the parties’ disputes in an effective and timely fashion, 

removing any need for a special master. Moreover, the Court has now gained familiarity with 

the issues, which a special master would need at least weeks—if not months—to attain. There is 

simply no basis to assume that the appointment of a special master would accelerate the 

resolution of any discovery disputes between the parties; to the contrary, it would slow them 

down.

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 3 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

Second, Qualcomm disagrees with Plaintiffs’ claim that appointment of a special master 

would “achiev[e] considerable cost-savings to all parties”. (Id. ¶ 5.) To the contrary, 

introducing a special master at this point would likely add another layer of complexity to this 

Court’s dispute-resolution process, with attendant costs and delays. Plaintiffs do not explain 

how presenting to a special master thousands and thousands of documents that Qualcomm 

already has reviewed, and re-reviewed, could possibly save any time or money.

Third, Qualcomm disagrees to the extent Plaintiffs are proposing that a special master 

would be able only to adjudicate Plaintiffs’ challenges to Qualcomm’s privilege assertions. 

(Id. ¶¶ 3, 8.) In Qualcomm’s view, any special master’s mandate should include resolution of all 

disputes concerning privilege and related assertions, whether between the parties or between any 

party and any third party. For example, with respect to Apple, Qualcomm has raised and 

continues to have serious concerns regarding privilege, and while Qualcomm believes that the 

Court has been handling these issues expeditiously and effectively, should the Court disagree 

with Qualcomm and appoint a special master to examine Qualcomm’s privilege assertions, there 

is no good reason why the special master would not adjudicate these disputes so as to ensure 

consistency and predictability in the discovery process. 

Fourth, Qualcomm disagrees that it should bear the costs of any special master, even if 

only “initially”. (See id. ¶¶ 5, 13.) Plaintiffs have filed multiple discovery motions with the 

Court that have been denied, outright or in part (see, e.g., ECF Nos. 274, 316, 421); Qualcomm 

has filed several motions on which it has prevailed (see, e.g., ECF Nos. 239, 421); and 

Qualcomm remains open to addressing (and has continued to address) Plaintiffs’ questions 

regarding privilege calls through reasonable requests for re-review, which would eliminate the 

need for costly special master proceedings. Under these circumstances, and so as to avoid the 

proliferation of unjustified, burdensome requests that might occur where the moving party does 

not bear the costs associated with its requests, Qualcomm respectfully submits that as a default 

rule, costs should be borne equally by all parties, subject to an Order for cost-shifting in 

appropriate cases. In particular, Qualcomm finds troubling the FTC’s newly stated position that 

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 4 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

it “is not authorized to bear any portion of the expenses of the special master”. (ECF No. 343-02

at 3.) Qualcomm does not understand how a party can ask the Court to appoint a special master,

disclaim any authorization to bear the attendant costs, and propose that the adverse party bear all 

the costs.

CONCLUSION

For the foregoing reasons, Qualcomm respectfully requests that the Court deny the 

Plaintiffs’ motion for appointment of a special master; or, should the Court decide to appoint a 

special master, that the scope of the appointment encompass all privilege issues related to these 

cases.

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 5 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

Dated: February 21, 2018

Respectfully submitted,

CRAVATH, SWAINE & MOORE LLP,

Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Tel: (212) 474-1000

Fax: (212) 474-3700

gbornstein@cravath.com

yeven@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) 391-5400

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

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 6 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 6

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

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

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 585 Filed 02/21/18 Page 7 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 7

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

[PROPOSED] ORDER

The Court hereby DENIES the request of Plaintiff Federal Trade Commission and 

counsel for Plaintiffs in Case No. 5:17-md-02773-LHK-NMC for appointment of a special 

master. 

It is SO ORDERED.

Dated: 

 

 United States Magistrate Judge 

 Nathanael M. Cousins

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 8 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 8

DEFENDANT QUALCOMM INCORPORATED’S STATEMENT AND [PROPOSED] ORDER 

DENYING PLAINTIFFS’ REQUEST FOR APPOINTMENT OF A SPECIAL MASTER

Case Nos. 17-cv-00220-LHK-NMC & 17-md-02773-LHK-NMC

FILER’S ATTESTATION

I, Gary A. Bornstein, am the ECF user whose identification and password are being used 

to file this Statement and [Proposed] Order Denying Plaintiffs’ Request for Appointment of a 

Special Master. In compliance with Civil Local Rule 5-1(i)(3), I hereby attest that the 

signatories on this document have concurred in this filing.

 Gary A. Bornstein

Case 5:17-cv-00220-LHK Document 585 Filed 02/21/18 Page 9 of 9