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 1 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

Stuart Plunkett (Bar No. 187971) 

Joseph A. Ostoyich 

Hugh M. Hollman 

Jana I. Seidl 

BAKER BOTTS L.L.P. 

101 California Street, Suite 3600 

San Francisco, California 94111 

Telephone: (415) 291-6203 

Facsimile: (415) 291-6303 

stuart.plunkett@bakerbotts.com 

joseph.ostoyich@bakerbotts.com 

hugh.hollman@bakerbotts.com 

Counsel for AT&T Mobility LLC 

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

[PROPOSED] ORDER GRANTING 

NON-PARTY AT&T MOBILITY LLC’S 

ASSENTED-TO NOTICE OF MOTION 

AND MOTION TO SUPPLEMENT 

PROTECTIVE ORDER 

WHEREAS, the Court entered a Protective Order Governing Confidential Material in 

Federal Trade Commission v. Qualcomm Incorporated, Case No. 5:17-cv-00220-LHK-NMC 

(“FTC Litigation”) (Dkt. No. 81, May 1, 2017) and In re Qualcomm Antitrust Litigation, 5:17- 

md-02773-LHK-NMC (“MDL Litigation”) (Dkt. No. 46, May 29, 2017), each of which is 

referred to herein as the “Protective Order” with respect to the Action in which the instant 

Supplemental Protective Order regarding AT&T material is entered; and, 

WHEREAS, Section 10.1 of the Protective Order states that its provisions should not be 

construed as prohibiting a Non-Party from seeking additional protections for its confidential 

materials; 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 1 of 8
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 2 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

WHEREAS, now before the court is Non-Party AT&T’s Assented-To Motion to 

Supplement Protective Order (“Motion”). Having considered the Motion, the Court hereby 

GRANTS the Motion. 

WHEREFORE, IT IS HEREBY ORDERED, that the terms of the Protective Order apply 

to “AT&T MATERIAL” (defined below), except as modified herein. 

A. Definitions 

1. “AT&T MATERIAL” includes any Disclosure and Discovery Materials produced 

by AT&T or obtained from AT&T or AT&T witnesses in this Action. 

2. “AT&T HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY” 

Information or Items: refers to any AT&T MATERIAL that satisfy the requirements of 

HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY Information or Items in Section 2.9 

of the FTC Litigation Protective Order and Section 2.8 of the MDL Litigation Protective Order. 

3. “AT&T PROTECTED MATERIAL” includes: AT&T MATERIAL designed as 

either CONFIDENTIAL or AT&T HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ 

EYES ONLY. 

B. Designation of Protected Material 

4. Any AT&T MATERIAL may be designated CONFIDENTIAL in accordance 

with the terms of the Protective Order, including Section 5.4. 

5. Notwithstanding the provisions of Section 5 of the Protective Order, AT&T shall 

designate its HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY Information or Items 

as “AT&T HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY.” 

Otherwise, all provisions governing the manner and timing of the designation of HIGHLY 

CONFIDENTIAL—ATTORNEYS’ EYES ONLY Information or Items apply to the designation 

of AT&T HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY Information 

or Items. 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 2 of 8
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 3 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

C. Access to And Use of AT&T Protected Material 

6. Except as modified herein, AT&T MATERIAL designated CONFIDENTIAL 

pursuant to the Protective Order shall be treated in accordance with the provisions of the 

Protective Order that govern the treatment of CONFIDENTIAL Information or Items, including, 

without limitation, Section 7. 

7. Unless otherwise ordered by the Court or permitted in writing by AT&T, AT&T 

HIGHLY CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Material shall not be 

disclosed, directly or indirectly, to anyone except the following: 

(a) persons who appear on the face of the Protected Material as an author, 

addressee, or recipient, or who are the custodians of the Protected Material; 

(b) Outside Counsel of Record for a Party in this Action, as well as employees 

of said Outside Counsel of Record, (1) who do not provide commercial advice (as opposed to 

legal advice) to said Party and (2) to whom it is reasonably necessary to disclose the information 

for this litigation; 

(c) The Court and its personnel; 

(d) court reporters and their staff, trial consultants, and Professional Vendors 

to whom disclosure is reasonably necessary for this litigation and who have signed the 

“Acknowledgment and Agreement to Be Bound” attached as Exhibit A to the Protective Order; 

(e) Experts (as defined in the Protective Order), subject to the provisions and 

limitations set forth in Section D herein; 

(f) witnesses as permitted in Paragraph 14 of this Order; and 

(g) FTC Commissioners and FTC counsel who have appeared in the FTC 

Litigation, as well as other Commission employees to whom it is reasonably necessary to 

disclose the information for the FTC Litigation. 

8. Notwithstanding the provisions herein, the FTC may, subject to taking appropriate 

steps to preserve confidentiality, disclose and use AT&T PROTECTED MATERIAL in 

responding to either: (a) a formal request from either House of Congress or from any committee 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 3 of 8
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 4 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

or subcommittee of either House of Congress, consistent with applicable law, including Sections 

6(f) and 21 of the FTC Act, 15 U.S.C. §§ 46(f) and 57b-2; or (b) a federal or state access request 

pursuant to Commission Rules 4.11(c) and (d), 16 C.F.R. § 4.11(c) and (d). In such instances, 

the FTC shall provide AT&T with fourteen (14) days prior written notice of such disclosure 

unless the applicable statute or regulation prohibits such notice, in which case the Commission 

shall comply with the applicable statute or regulation. 

9. Each person to whom AT&T PROTECTED MATERIAL may be disclosed, and 

who is required to sign the “Acknowledgment and Agreement to Be Bound” attached as Exhibit 

A to the Protective Order, shall do so prior to the time such AT&T PROTECTED MATERIAL 

is disclosed to him or her. Counsel for a Party who makes such a disclosure shall provide the 

recipient a copy of this Order as well as the Protective Order. Counsel for a Party who makes 

any disclosure of Protected Material shall retain each original executed acknowledgement and, 

upon written request, shall provide copies to outside counsel for all other Parties at the 

termination of this Action. 

D. Access by Experts 

10. Unless otherwise ordered by the Court or agreed to in writing by AT&T, a 

Receiving Party that seeks to disclose to an Expert (as defined in the Protective Order) any 

information or item that has been designated AT&T HIGHLY CONFIDENTIAL—OUTSIDE 

ATTORNEYS’ EYES ONLY first must make a written request by email to outside counsel for 

AT&T that (1) identifies the general categories of “AT&T HIGHLY CONFIDENTIAL—

OUTSIDE ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks permission 

to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or 

her primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the 

Expert’s current employer(s), (5) identifies each person or entity from whom the Expert has 

received compensation or funding for work in his or her areas of expertise or to whom the Expert 

has provided professional services, including in connection with a litigation, at any time during 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 4 of 8
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 5 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

the preceding five years,1 and (6) identifies (by name and number of the case, filing date, and 

location of court) any litigation in connection with which the Expert has offered expert 

testimony, including through declaration, report, or testimony at a deposition or trial, during the 

preceding five years.2

11. A Receiving Party that makes a request and provides the information specified in 

the preceding paragraph may disclose the subject Protected Material to the identified Expert 

unless, within 5 business days of delivering the request, the Receiving Party receives a written 

objection from AT&T. Any such objection must set forth in detail the grounds on which it is 

based. 

12. A Receiving Party that receives a timely written objection from AT&T must meet 

and confer with AT&T (through direct voice-to-voice dialogue) to try to resolve the matter by 

agreement within seven days of the written objection. If no agreement is reached, the Party 

seeking to make the disclosure and AT&T may file a joint discovery letter brief with the 

assigned magistrate judge requesting that the Court resolve the matter. Any such joint letter brief 

must describe the circumstances with specificity, set forth in detail the reasons why the 

disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure would 

entail, and suggest any additional means that could be used to reduce that risk. In addition, any 

such joint letter must describe the parties’ efforts to resolve the matter by agreement (i.e., the 

extent and the content of the meet and confer discussions) and setting forth the reasons advanced 

by AT&T for its refusal to approve the disclosure. If no agreement is reached, no AT&T 

HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY Item or Information 

 

1

 If the Expert believes any of this information is subject to a confidentiality obligation to a third 

party, then the Expert should provide whatever information the Expert believes can be disclosed 

without violating any confidentiality agreements, and the Receiving Party seeking to disclose to 

the Expert shall be available to meet and confer with AT&T regarding any such engagement. 2

 AT&T will keep the Receiving Party’s written request, and all information disclosed therein, 

confidential and will not disclose that information to anyone outside of AT&T, including any 

other Party. 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 5 of 8
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 6 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

shall be disclosed to the Expert unless or until the Court grants the Receiving Party permission to 

do so. 

13. In any such proceeding, AT&T shall bear the burden of proving that the risk of 

harm that the disclosure would entail (under the safeguards proposed) outweighs the Receiving 

Party’s need to disclose the Protected Material to its Expert. 

E. Use of Protected Material 

14. Use of Designated Material at Depositions and During Trial Testimony. Except 

as may be otherwise ordered by the Court, any person may be examined as a witness at 

depositions, hearings, and trial and may testify concerning AT&T HIGHLY CONFIDENTIAL— 

OUTSIDE ATTORNEYS’ EYES ONLY Information or Items of which such person has prior 

knowledge. Without in any way limiting the generality of the foregoing: 

(a) A present director, officer, agent, employee and/or designated Rule 

30(6)(b) witness of AT&T3 may be examined and may testify concerning AT&T HIGHLY 

CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Information or Items; 

(b) A former director, officer, agent and/or employee of AT&T may be 

interviewed, examined and may testify concerning AT&T HIGHLY CONFIDENTIAL— 

OUTSIDE ATTORNEYS’ EYES ONLY Information or Items of which he or she has prior 

knowledge, including any material that refers to matters of which the witness has personal 

knowledge, that has been produced by a Party or AT&T, and that pertains to the period or 

periods of his or her prior employment with AT&T; 

(c) Any other witness may be examined at deposition or otherwise testify 

concerning any document containing AT&T HIGHLY CONFIDENTIAL—OUTSIDE 

ATTORNEYS’ EYES ONLY Information or Items that appears on its face or from other 

documents or testimony to have been received from or communicated to that witness as a result 

of any contact or relationship with AT&T, or a representative of AT&T; and 

 

3

 Nothing in this Order addresses whether or not any such persons are the proper subjects of any 

subpoena. 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 6 of 8
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 7 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

(d) At deposition, any person other than the witness, his or her attorney(s), 

and any person qualified to receive AT&T HIGHLY CONFIDENTIAL—OUTSIDE 

ATTORNEYS’ EYES ONLY Information or Items under this Order shall be excluded from the 

portion of the examination concerning such information, unless AT&T consents to persons other 

than qualified recipients being present at the examination. If the witness is represented by an 

attorney who is not qualified under this Order to receive such information, then prior to the 

examination, the attorney shall be requested to provide an “Acknowledgment and Agreement to 

be Bound” attached as Exhibit A to the Protective Order, and to confirm that he or she will 

comply with the terms of this Order and maintain the confidentiality of AT&T HIGHLY 

CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Information or Items disclosed 

during the course of the examination. In the event that such attorney declines to sign the 

“Acknowledgment and Agreement to be Bound” prior to the examination, AT&T may seek a 

protective order from the Court, in a motion to which the Parties will not object, prohibiting such 

attorney from disclosing AT&T HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES 

ONLY Information or Items. 

15. Use of Designated Material at Trial or Hearings. AT&T HIGHLY 

CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY Information or Items may not be 

disclosed, directly or indirectly, in an open hearing without prior written consent from AT&T. If 

the disclosing party wishes to obtain that consent from AT&T, it must notify AT&T's outside 

counsel of its intent to disclose such material at least seventy-two (72) hours in advance of such 

disclosure, and describe the materials to be disclosed with reasonable particularity. Otherwise, 

the disclosing party must first request that the courtroom be sealed, and that only those 

authorized to review AT&T HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES 

ONLY Information or Items remain during the presentation of such material. 

16. Filing of Designated Material. The provisions of Civil L.R. 79-5 govern the filing 

of any AT&T PROTECTED MATERIAL, including, without limitation, the process by which 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 7 of 8
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 8 Case No. 5:17-cv-00220-LHK 

[PROPOSED] ORDER GRANTING NON-PARTY AT&T MOBILITY LLC.’s ASSENTED-TO MOTION TO 

SUPPLEMENT PROTECTIVE ORDER 

AT&T shall receive notice of said filing, and the process by which AT&T must establish that the 

filed material is sealable 

17. This Supplemental Protective Order incorporates by reference all provisions of 

the Protective Order entered by this Court in this Action to the extent not expressly referenced 

herein, except where there is a conflict between the terms of this Supplemental Protective Order 

and such Protective Order, in which case this Supplemental Protective Order shall govern. 

IT IS SO ORDERED. 

DATED: December _____, 2017 

 

HONORABLE NATHANAEL M. COUSINS 

UNITED STATES MAGISTRATE JUDGE 

Case 5:17-cv-00220-LHK Document 428-1 Filed 12/28/17 Page 8 of 8