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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

Jennifer Milici, D.C. Bar No. 987096

Daniel Matheson, D.C. Bar No. 502490

J. Alexander Ansaldo, Va. Bar No. 75870

Joseph R. Baker, D.C. Bar No. 490802

Elizabeth A. Gillen, Ca. Bar No. 260667

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

Tel: (202) 326-2912; Fax (202) 326-3496

jmilici@ftc.gov

Lin W. Kahn, Ca. Bar No. 261387

Federal Trade Commission

901 Market Street, Suite 570

San Francisco, CA 94103

Tel: (415) 848-5115; Fax: (415) 848-5184

lkahn@ftc.gov

Attorneys for Plaintiff

FEDERAL TRADE COMMISSION 

SUSMAN GODFREY L.L.P.

Kalpana Srinivasan (237460)

1901 Avenue of the Stars, Suite 950

Los Angeles, CA 90067

(310) 789-3100; (310) 789-3006 (fax)

ksrinivasan@susmangodfrey.com

Plaintiffs’ Interim Co-Lead Counsel

CRAVATH, SWAINE & MOORE LLP

Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

825 Eighth Avenue

New York, NY 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest 

633 Battery Street 

San Francisco, CA 94111-1809

Telephone: (415) 676-2289

Facsimile: (415) 397-7188

rvannest@keker.com

MORGAN, LEWIS & BOCKIUS LLP

Donn P. Pickett (SBN 72257)

Geoffrey T. Holtz (SBN 191370)

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

Donn.pickett@morganlewis.com

Geoffrey.holtz@morganlewis.com

Attorneys for Defendant

QUALCOMM INCORPORATED

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, PLAINTIFF 

FEDERAL TRADE COMMISSION

AND MDL PLAINTIFFS’ JOINT

STATUS REPORT 

Judge: Hon. Nathanael M. Cousins 

IN RE QUALCOMM ANTITRUST 

LITIGATION

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

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Plaintiffs Federal Trade Commission (“FTC”) and the MDL Plaintiffs (together, 

“Plaintiffs”) and Defendant Qualcomm Incorporated (“Qualcomm”) hereby submit this Joint 

Status Report pursuant to Magistrate Judge Cousins’s March 30, 2018 Order (ECF No. 664) and 

the April 4, 2018 Order Regarding Privilege Re-Review for Qualcomm and Apple (MDL ECF 

No. 427; the “Re-Review Order”). 

A. Status of Re-Review

Since the last Joint Status Report (ECF No. 739), submitted on May 16, 2018, Qualcomm 

has made two productions as a result of the ongoing re-review. On May 29, 2018, Qualcomm 

produced revised privilege log entries for 3,442 documents that remained on its privilege logs 

after re-review, as well as new log entries for 3,580 previously redacted documents in which 

redactions were not changed. Qualcomm produced 1,995 documents (either in redacted form or 

without redactions) that had previously been withheld as privileged, and Qualcomm produced 

936 previously redacted documents on which it reduced or eliminated redactions. The newly 

redacted documents, including those produced from Qualcomm’s privilege log and those 

produced with reduced redactions, were logged as well.

On June 12, 2018, Qualcomm produced revised privilege log entries for 8,279 documents 

that remained on its privilege logs after re-review, as well as new log entries for 3,165 previously 

redacted documents in which redactions were not changed. Qualcomm produced 2,464 

documents (either in redacted form or without redactions) that had previously been withheld as 

privileged, and Qualcomm produced 889 previously redacted documents on which it reduced or 

eliminated redactions. The newly redacted documents, including those produced from 

Qualcomm’s privilege log and those produced with reduced redactions, were logged as well.

Qualcomm estimates that it completed re-review of a total of 101,873 redacted or 

withheld documents by June 12, 2018, and that approximately 8,264 documents remain to be rereviewed by July 1, 2018. As a result of this re-review process, to this point, Qualcomm has 

produced 20,308 documents (either in redacted form or without redactions) that had previously 

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been withheld as privileged, and 10,759 previously redacted documents on which it reduced or 

eliminated redactions. Some but not all of the previously withheld or redacted content had 

already been produced in other documents before the re-review productions.

B. Plaintiffs’ Request for In Camera Review

On June 15, 2018, Qualcomm and the Plaintiffs met and conferred with respect to certain

documents that Plaintiffs intended to request permission to submit for in camera review. As a 

result of this meet and confer, Qualcomm and Plaintiffs narrowed the number of documents to be 

submitted for in camera review to the seven documents discussed below. 

Plaintiffs’ Position

The parties met and conferred on Friday, June 15 regarding 25 redacted documents and 

58 privilege log entries that Plaintiffs had identified to Qualcomm in anticipation of requesting in 

camera review from the Court. Qualcomm produced either in full or in part materials from 9 of 

the 25 redacted documents (36%) and 28 of the 58 log entries (48%) and provided further 

explanations for the redacted documents and log entries that they were continuing to withhold. 

Plaintiffs further reviewed the log entries in question and are now requesting that the Court do an 

in camera review of four redacted documents and three privilege log entries: entries 17157 and

25327 from the ESI Investigation Privilege Log, and entry 74157 from the ESI Litigation 

Privilege Log. 

1. QNDCAL05080969 is an entirely redacted 9 page memorandum referred to as a White 

Paper dealing with the likely “Competitive Response” to a contemplated business 

strategy. The Court should review this document because (1) much of its content appears 

to relate solely to business concerns, as demonstrated by non-privileged summaries of its 

content about which Qualcomm’s witnesses testified at length during their depositions; 

and (2) it was shared with outside parties. 

Qualcomm claims that the redacted memorandum is duplicative of a document that the 

FTC previously asked the Court to review. See ECF No. 265 at 1-2.1 At the time, the 

 1 This claim is inconsistent with Qualcomm’s changing privilege assertions. In the previous 

dispute, Qualcomm asserted that the memo at issue “contains Derek Aberle’s legal analysis 

relating to patent claims and existing and potential litigation.” Y. Even email to D. Matheson 

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Court found no good cause to review the document. Now, the FTC has uncovered 

information that the White Paper addresses at least one purely business-related topic: 

Qualcomm’s assessment of the likely “Competitive Response” to a business proposal. 

This is an exclusively business issue that Qualcomm concedes is not privileged – indeed, 

Qualcomm witnesses testified at length about a summary of this portion of the White 

Paper.2 As a result of this additional information, the Court should now review the White 

Paper to determine if it represents non-privileged business advice provided by an 

executive with a J.D.,3 or/and a non-privileged communication which would have been 

transmitted to provide information on the pros and cons of a business course of action, 

“even if there had been no perceived interest in securing legal advice.”4

Moreover, QNDCAL05080969 was sent to individuals not employed by Qualcomm. The 

document’s cover email is addressed to “QUALCOMM Board Special Committee 

Participants,” which appears to include outside directors as well as attorneys and 

investment bankers who were not retained by Qualcomm. See QNDCAL05080915 (cover 

email). While in some circumstances a Board Special Committee could be equivalent to 

Qualcomm itself, Qualcomm has not made this showing here, nor have they claimed a 

common legal interest with the Special Committee. 

2. QNDCAL05865173 redacts a half of a business proposal that Qualcomm intends to 

make to Samsung. The email summarizes (a) the “carrots” Qualcomm intends to offer to 

Samsung, and (b) the “asks” Qualcomm intends to make of Samsung in exchange for the 

carrots. Qualcomm admits that all content relating to the carrots is a non-privileged 

business communication about the business positions to take during a negotiation with a 

counterparty. Yet Qualcomm claims that it can withhold the “asks” because they “reflect” 

 

(Oct. 31, 2017). Now, Qualcomm describes the redacted memorandum as “Memorandum 

disclosing legal advice regarding corporate reorganization (Paul Syrowik revising draft 

memorandum).” 

2 The FTC has not filed supporting documents with the Court to avoid unnecessary motions 

to seal. The FTC’s information is based on: Deposition of Steven R. Altman (March 14, 2018) at 

179-187 (testifying regarding CX6992); Q2014FTC03049268 at Q2014FTC03049309-310 (slide 

titled “Competitive Response to Spin”, next slide titled “Spin Impact on Litigation Issues.”)

3 In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 797 (E.D. La. 2007) (“courts 

require a clear showing that the attorney was acting in his professional legal capacity before 

cloaking documents in the privilege’s protection.”) (quoting Paul R. Rice, 1 Attorney-Client 

Privilege in the United States, § 7:2, pp. 24-25 (Thomson West 2d ed.1999)).

4 Fourth Age Ltd. v. Warner Bros. Digital Dist., 2015 WL 12720324 (C.D. Cal. Aug. 6, 

2015) at *6 (““No privilege can attach to any communication as to which a business purpose 

would have served as a sufficient cause, i.e., any communication that would have been made 

because of a business purpose, even if there had been no perceived additional interest in securing 

legal advice.””) (emphasis in original) (quoting McCaugherty v. Siffermann, 132 F.R.D. 234, 238 

(N.D. Cal. 1990)).

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a communication with counsel. A series of business “asks” that Qualcomm intends to 

make of a counter-party in negotiations is not privileged – even if counsel approved these 

business “asks” (or even suggested them), this does not constitute legal advice. Instead, it 

constitutes business advice related to a business negotiation. 

3. QNDCAL05865159 redacts a small portion of a document that relates to “patent rating” 

issues that have been briefed on previous occasions. The Court should review the 

redacted portion to determine if it represents high-level summaries of Qualcomm’s patent 

portfolio that can be disclosed without revealing the content of a privileged 

communication. 

4. QNDCAL05865161 redacts a small portion of a document that relates to “patent rating” 

issues that have been briefed on previous occasions. The Court should review the 

redacted portion to determine if it represents high-level summaries of Qualcomm’s patent 

portfolio that can be disclosed without revealing the content of a privileged 

communication. 

5. Log Entry No. 17157 is a log entry concerning internal e-mail correspondence initiated 

by Qualcomm’s CEO regarding a proposed email to a senior executive at Apple. The 

Court should review the e-mail communication to determine if any portion of the e-mail 

communication is related to business negotiation and can be produced in unredacted 

form. 

6. Log Entry No. 25327 is a log entry concerning Qualcomm’s preparation of submissions 

to a third party regarding Qualcomm’s licensing business practices. The Court should 

review the documents to determine if portions of the material intended for public 

statement can be produced in unredacted form. See Gucci Am., Inc. v. Guess?, Inc., 271 

F.R.D. 58, 78 (S.D.N.Y. 2010) (corporate communications regarding public statements 

on anticipated litigation not privileged). 

7. Log Entry No. 74157 is a log entry for an email communication that, based on its title, 

refers to ongoing business negotiations with Apple and includes Qualcomm executives 

serving in business roles, including Derek Aberle, president of Qualcomm, and Eric 

Reifschneider, general manager of Qualcomm Technology Licensing. The Court should 

review the e-mail communication to determine if any portion of the string is related to 

business advice and can be produced in unredacted form.

Qualcomm’s Position

Plaintiffs’ claims that the seven documents are not privileged are unfounded. To the 

extent the Court contemplates ordering the production of any of these documents, Qualcomm 

respectfully requests the opportunity to submit declarations providing the evidentiary foundation 

for its assertions of privilege over any such document.

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1. QNDCAL05080969: This Court has already rejected the FTC’s request for the Court to 

review this document in camera. (ECF No. 265 (motion); ECF No. 274 (order); Nov. 6, 

2017 Hr’g Tr. at 34:12-15 (“As to Docket 265 where the FTC is requesting in camera

review, admitting that it’s a shot in the dark, I don’t find that the FTC has met its burden 

to persuade me to engage in in camera review at this point in time.”).) 

Nothing has changed. The White Paper was authored by a lawyer and provides legal 

advice regarding actions that third parties might take with respect to pending private 

litigations and government proceedings, and includes a discussion of Qualcomm’s 

potential legal responses to those actions. And Plaintiffs’ waiver claim borders on the 

frivolous as Qualcomm’s Board of Directors is not a third party. 

First, the document was initially drafted by Derek Aberle, a lawyer whose job 

responsibilities at the time included providing legal advice, and then revised by another 

lawyer, Paul Syrowik, who had exclusively legal responsibilities. When Mr. Aberle 

prepared the document in 2007, he was not, as Plaintiffs dismissively assert, just “an 

executive with a J.D.” Prior to joining Qualcomm in 2000, Mr. Aberle represented the 

company as outside counsel for several years at the law firms of Pillsbury Madison & 

Sutro and Heller Ehrman. At Qualcomm, he had a succession of purely legal job 

positions: Legal Counsel; Legal Counsel, Senior; and Vice President and Legal Counsel. 

In June of 2005, he took the job he had when authoring the documents at issue, Senior 

Vice President and General Manager of CDMA Licensing. As Mr. Aberle testified, 

while in that position, he continued to provide legal advice to the company:

“Q: In 2005, as general manager of QTL, did you have responsibilities to provide 

legal advice?

A: I did continue to provide legal advice in various aspects, yes.”5

The document at issue plainly constitutes such advice from Mr. Aberle (as revised by 

Mr. Syrowik). This nine-page “White Paper” was part of a package of materials prepared 

for an October 2007 meeting of a Special Committee of Qualcomm’s Board of Directors 

and a January 2008 special meeting of Qualcomm’s Board of Directors to consider a 

potential corporate restructuring. In the document, Messrs. Aberle and Syrowik provide

legal advice on how the potential restructuring would affect existing litigation, potential 

litigation and other legal strategies that companies could pursue. At the time they 

prepared this analysis, Qualcomm was engaged in extensive litigation with both Nokia 

and Broadcom, and the first five of the nine pages in the White Paper analyze how the 

potential restructuring could affect those two litigations, as well as potential litigation 

with another company. Those five pages include counsel’s assessments of claims and 

defenses that could be asserted by Qualcomm or its litigation adversaries and how the 

potential restructuring could affect the strength (and availability) of such claims and 

defenses. 

 5 Aberle Oct. 6, 2016 IH Tr. at 8:22-8:25.

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The remaining four pages are equally focused on legal advice. At the time the document 

was created, Qualcomm was involved in legal proceedings conducted by regulators in 

Europe, Korea and Japan, and the White Paper analyzes actions that competitors could 

take in response to the potential restructuring in the context of those proceedings and 

other potential regulatory actions. The White Paper also contains legal advice from 

Messrs. Aberle and Syrowik regarding potential arbitration and patent infringement 

claims that could be brought by or against Qualcomm. 

Contrary to Plaintiffs’ speculation, the White Paper contains core legal advice given by 

lawyers to their client, and was properly redacted as privileged.

Second, the White Paper was not “shared with outside parties”, as Plaintiffs claim. 

Instead, the document was provided to a Special Committee of Qualcomm’s Board. 

Providing a document to Qualcomm’s directors, who are by law responsible for 

overseeing the management of the company, does not vitiate the privilege. The fact that 

the Board formed a Special Committee to consider the potential restructuring does not 

change that basic principle, because there was no adversity between the Special 

Committee and the company (and Plaintiffs do not argue otherwise). In a non-adversarial 

context, communications with a special committee retain the privilege. See In re BCE 

West LP, 2000 WL 1239117, at *2 (S.D.N.Y. 2000) (holding that Special Committee’s 

communications with the Board “were part of the transaction process” and did not 

destroy the special committee’s privilege); Picard Chemical, Inc. Profit Sharing Plan v. 

Perrigo Co., 951 F. Supp. 679, 689 (W.D. Mich. 1996) (disclosure of special litigation 

committee’s report to the Board did not waive privilege); cf. Ryan v. Gifford, Civ. Action 

No. 2213-C, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007) (“The decision [finding that 

privilege was waived] would not apply to a situation (unlike that presented in this case) in 

which board members are found to be acting in their fiduciary capacity, where their 

personal lawyers are not present, and where the board members do not use the privileged

information to exculpate themselves.”) Plaintiffs have not cited a single case in which a 

company’s provision of information to a special committee of its own board waived the 

privilege, and they have not provided any factual or legal basis to warrant such a novel 

waiver finding here.

2. QNDCAL05865173: The redacted portions of this document refer to attorney-client 

privileged communications with Qualcomm’s outside counsel and inside counsel, and 

constitute a request for legal advice from in-house Qualcomm attorneys including Don 

Rosenberg (General Counsel), Mark Snyder (the senior lawyer responsible for overseeing 

Qualcomm’s litigation), Deborah Dwight (division counsel for the licensing business) 

and Jonathan Weiser (division counsel for the chip business). Specifically, the redacted 

portions of the document refer to communications with in-house litigation counsel and

litigation counsel at Cravath regarding the potential impact of contemplated agreement 

terms on pending U.S. and Korean legal proceedings, and of provisions intended to settle 

potential claims by Qualcomm against Samsung. The document also seeks further input 

from the lawyers who appear in the “To” line on the legal impact of those provisions. 

Qualcomm recognizes that portions of this document also have a business purpose, and it 

has therefore left the majority of this document unredacted and applied redactions that are 

narrowly tailored to protect against the disclosure of privileged communications. 

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3. QNDCAL05865159: The privileged portions of this document contain summaries of 

Qualcomm’s internal patent ratings. Plaintiffs admit that the “‘patent ratings’ issues” 

presented by this document have already been briefed (and decided) on multiple previous 

occasions, but they nevertheless request that the Court review this document in camera

“to determine if it represents high-level summaries of Qualcomm’s patent portfolio.” 

This Court and Judge Koh have ruled, on multiple occasions, that Qualcomm’s patent 

ratings are privileged and that summaries of the patent ratings are likewise privileged. In 

October, the FTC challenged Qualcomm’s claim of privilege over a document that it 

characterized as “present[ing] the number of high-value patents for which each business 

unit is responsible[.]” (ECF No. 249 at 2.) This Court confirmed Qualcomm’s privilege 

assertion. (ECF No. 290.) The FTC appealed this decision to Judge Koh, who denied the 

appeal without briefing. (ECF No. 337 (motion); ECF No. 456 (order).) The FTC once 

again challenged Qualcomm’s assertion of privilege over the patent ratings system and 

accompanying summaries in April. (ECF No. 673.) This Court concluded for a second 

time that Qualcomm’s patent rating system and summaries of patent ratings are 

privileged. (ECF No. 691.) This Court specifically found: “I’m persuaded that 

[Qualcomm] established the basis for the attorney-client privilege for the metrics and for 

their ratings” (Apr. 18, 2018 Hr’g Tr. at 30:21-24.) The FTC appealed this decision, 

characterizing its original motion as a motion to compel “production of the [patent 

ratings] database, as well as any related business communications summarizing the 

contents of the database”. (ECF No. 715 at 1:5-6 (emphasis added).) Judge Koh issued 

an extensive decision denying the FTC’s motion for relief and affirming the Court’s 

decision. (ECF No. 750 at 8 (“Qualcomm has met its burden of showing that its internal 

patent ratings relate to the purpose of securing legal advice”).) Qualcomm’s redactions 

are appropriately tailored (and targeted) to protect against disclosure of its privileged 

patent ratings and summaries thereof and, therefore, Qualcomm’s privilege assertions 

should yet again be upheld. There is nothing new here that this Court and Judge Koh 

have not already addressed.

4. QNDCAL05865161: This document is a later version of QNDCAL05865159, which is 

discussed above in Item 3. Qualcomm accordingly refers the Court to that discussion.

5. Log Entry No. 17157: This document is an internally circulated draft of an email from 

Steve Mollenkopf to Jeff Williams. Contrary to Plaintiffs’ assertion, Mr. Mollenkopf did 

not initiate the email but was instead responding to an email from Vicky Chen (counsel 

for the chip business) regarding a draft agreement she had revised. In his response to 

Ms. Chen, Mr. Mollenkopf requests legal advice from Ms. Chen, Jonathan Weiser 

(division counsel for the chip business), and Don Rosenberg (General Counsel) regarding 

his proposed email to Mr. Williams. 

6. Log Entry No. 25327: This document, which was authored by a lawyer, Dan Hermele, 

is a non-final draft of a proposed submission to a standard-setting organization regarding 

Qualcomm’s IPR policy. The draft reflects Mr. Hermele’s legal advice and analysis, and 

in the cover email he seeks further legal advice regarding his draft from additional 

lawyers, including Mark Snyder (who was then in-house litigation counsel), Roy 

Hoffinger (then in-house antitrust counsel), Fabian Gonell (then division counsel for the 

licensing business) and Amy Olsen (another lawyer in the licensing business). 

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7. Log Entry No. 74157: This document contains legal advice from Vicky Chen (a lawyer 

in the chip business) regarding draft contract language that she prepared, followed by a 

request for legal advice from Eric Reifschneider about other provisions of the proposed 

agreement directed to several lawyers, including Ms. Chen, Jonathan Weiser (division 

counsel for the chip business), Fabian Gonell (then division counsel for the licensing 

business) and Amy Olsen (another lawyer in the licensing business). 

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Dated: June 18, 2018

Respectfully submitted,

FEDERAL TRADE COMMISSION,

_______/s/ Daniel Matheson_________________

Jennifer Milici

Daniel Matheson

J. Alexander Ansaldo

Joseph R. Baker

Kenneth H. Merber

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

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

jmilici@ftc.gov

Attorneys for Federal Trade Commission

________/s/ Rio S. Pierce___________________

HAGENS BERMAN SOBOL SHAPIRO LLP

Rio S. Pierce

715 Hearst Ave., Suite 202

Berkeley, CA 94710

(510) 725-3042

riop@hbsslaw.com

Attorneys for MDL plaintiffs

CRAVATH, SWAINE & MOORE LLP

/s/ Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

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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.com

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

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.com

 geoffrey.holtz@morganlewis.com

Attorneys for Qualcomm Incorporated

Case 5:17-cv-00220-LHK Document 769 Filed 06/18/18 Page 11 of 12
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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

FILER’S ATTESTATION

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

to file this Joint Status Report. 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/ Gary A. Bornstein

Gary A. Bornstein

Case 5:17-cv-00220-LHK Document 769 Filed 06/18/18 Page 12 of 12