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UNITED STATES COURT REPORTERS

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

IN RE QUALCOMM ANTITRUST

LITIGATION

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17-MD-02773-LHK

17-CV-00220-LHK

SAN JOSE, CALIFORNIA

MARCH 22, 2018

PAGES 1-82

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE LUCY H. KOH

UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S

FOR THE PLAINTIFF: SUSMAN GODFREY, LLP

1900 AVENUE OF THE STARS

SUITE 1400

LOS ANGELES, CA 90067

BY: AMANDA K. BONN

FOR THE PLAINTIFF: HAGENS BERMAN SOBOL SHAPIRO LLP

715 HEARST AVENUE, SUITE 202

BERKELEY, CA 94710

BY: RIO SHAYE PIERCE

APPEARANCES CONTINUED ON THE NEXT PAGE

OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR

CERTIFICATE NUMBER 13185

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED WITH COMPUTER

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UNITED STATES COURT REPORTERS

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APPEARANCES CONTINUED:

FOR THE PLAINTIFF: FEDERAL TRADE COMMISSION

FTC 600 PENNSYLVANIA AVENUE, N.W.

WASHINGTON, D.C. 20580

BY: ELIZABETH GILLEN

JOSEPH BAKER

FOR THE DEFENDANT: KEKER, VAN NEST & PETERS LLP

QUALCOMM 633 BATTERY STREET

SAN FRANCISCO, CA 94111

BY: ROBERT ADDY VAN NEST

JUSTINA SESSIONS

FOR THE DEFENDANT: CRAVATH, SWAINE AND MOORE

QUALCOMM WORLDWIDE PLAZA

825 EIGHTH AVE.

NEW YORK, NY 10019

BY: GARY ANDREW BORNSTEIN

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SAN JOSE, CALIFORNIA MARCH 22, 2018

P R O C E E D I N G S

(COURT CONVENED AT 1:46 P.M.)

THE CLERK: YOUR HONOR, CALLING CASE 17-CV-00220.

FEDERAL TRADE COMMISSION VERSUS QUALCOMM, INCORPORATED,

AND THE RELATED MATTER OF 17-MD-2773, IN RE QUALCOMM ANTITRUST

LITIGATION.

COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES.

MS. BONN: GOOD AFTERNOON, YOUR HONOR.

AMANDA BONN FOR THE MDL PLAINTIFFS.

MR. VAN NEST: GOOD AFTERNOON, YOUR HONOR.

BOB VAN NEST, TOGETHER WITH JUSTINA SESSIONS FROM KEKER,

VAN NEST & PETERS FOR QUALCOMM.

MR. BORNSTEIN: AND GOOD AFTERNOON, YOUR HONOR.

GARY BORNSTEIN FROM CRAVATH FOR QUALCOMM AS WELL.

THE COURT: OKAY. GOOD AFTERNOON AND WELCOME TO

EVERYONE.

THE CLERK: YOUR HONOR, I BELIEVE WE ALSO HAVE

COUNSEL ON THE PHONE.

THE COURT: OKAY. GO AHEAD, PLEASE. SORRY I DIDN'T

MEAN TO OMIT ANYONE.

MS. GILLEN: IT'S ELIZABETH GILLEN FOR THE FEDERAL

TRADE COMMISSION.

MR. BAKER: AND JOSEPH BAKER FOR THE FEDERAL TRADE

COMMISSION AS WELL. GOOD AFTERNOON.

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THE COURT: OKAY. GIVE ME JUST ONE MINUTE, PLEASE.

SO JOSEPH BAKER, AND WHO WAS THE OTHER PERSON, ELIZABETH

GILLEN?

MS. GILLEN: YES, THAT'S RIGHT.

THE COURT: ALL RIGHT. THANK YOU.

OKAY. THE MARCH 9TH JOINT CASE MANAGEMENT STATEMENT ON

PAGE 6 SAID THAT QUALCOMM WAS SUBSTANTIALLY COMPLETE WITH ITS

PRODUCTION TO THE FTC AND THE MDL PLAINTIFFS.

WHAT IS STILL OUTSTANDING TO BE PRODUCED?

MR. BORNSTEIN: YOUR HONOR, THE ONLY THINGS THAT

REMAIN OUTSTANDING TO BE PRODUCED ARE DOCUMENTS THAT ARE

RESPONSIVE TO SUBSEQUENTLY SERVED RFP'S THAT WE RECEIVED FROM

THE FEDERAL TRADE COMMISSION.

AND WE ARE -- WE HAVE PRODUCED A NUMBER OF THOSE. THE

ONLY ONES OUTSTANDING ARE MATTERS IN WHICH WE CONTINUE TO MEET

AND CONFER. BUT IT'S A SMALL VOLUME RELATING TO ISSUES THAT

THE FEDERAL TRADE COMMISSION RAISED MUCH LATER IN THE DISCOVERY

PROCESS.

THE COURT: WHAT WAS THE DATE OF THAT DISCOVERY

REQUEST?

MR. BORNSTEIN: THERE WERE MORE THAN ONE, YOUR HONOR.

AND THEY CAME IN, I BELIEVE, FEBRUARY 26TH AND FEBRUARY 28TH.

I WOULD HAVE TO LOOK TO BE PRECISE, BUT FEBRUARY 28TH WAS THE

LAST DAY ON WHICH REQUESTS COULD BE SERVED IN A TIMELY WAY, AND

I BELIEVE THAT'S WHEN THEY CAME IN.

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THE COURT: ALL RIGHT. LET ME HEAR FROM THE FTC.

DO YOU AGREE WITH THAT CHARACTERIZATION?

MS. GILLEN: YOUR HONOR, THIS IS ELIZABETH GILLEN.

WE AGREE WITH MR. BORNSTEIN'S CHARACTERIZATION OF THE

REQUEST, AND THE PARTIES ARE STILL MEETING AND CONFERRING ABOUT

THOSE REQUESTS AND THE DOCUMENTS TO BE PRODUCED.

HOWEVER, AS WE NOTED IN THE CASE MANAGEMENT STATEMENT, THE

PLAINTIFFS ARE ALSO RECEIVING A NUMBER OF ADDITIONAL DOCUMENTS,

BOTH AS A RESULT OF THE PRIVILEGE RE-REVIEW PROCESS THAT IS

BEING MANAGED BY MAGISTRATE JUDGE COUSINS, AND ALSO DOCUMENTS

PRODUCED IN THE SOUTHERN DISTRICT OF CALIFORNIA ACTION WHICH

ARE BEING PRODUCED TO THE FTC AND THE MDL PLAINTIFF, AS A

RESULT OF THE COORDINATION ORDER.

THE COURT: RIGHT.

I THINK THE WAY TO REMEDY THAT IS TO GIVE AN ADDITIONAL

AMOUNT OF DEPOSITION TIME THAT'S TARGETED FOR DOCUMENTS THAT

ARE PRODUCED AFTER A RELEVANT WITNESS HAS BEEN DEPOSED.

SO I TALKED TO JUDGE COUSINS ABOUT THAT, WE ARE IN

AGREEMENT THAT THAT'S THE RIGHT WAY TO DEAL WITH THIS. BECAUSE

I DON'T THINK IT'S FAIR TO MAKE PEOPLE TAKE DEPOSITIONS WHEN

THEY DON'T HAVE THE DOCUMENTS FOR THAT WITNESS.

MR. BORNSTEIN: YOUR HONOR, MAY I ADDRESS THAT

BRIEFLY, UNDERSTANDING THAT YOU HAVE DISCUSSED THAT WITH

JUDGE COUSINS, JUST TO BE HEARD VERY BRIEFLY ON THAT?

THE COURT: GO AHEAD.

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MR. BORNSTEIN: WE HAVE RESPONDED COMPLETELY TO THE

NORTHERN DISTRICT OF CALIFORNIA REQUESTS FROM THE FTC AND THE

MDL PLAINTIFFS. THE DOCUMENTS THAT ARE BEING PRODUCED IN THE

SOUTHERN DISTRICT --

THE COURT: NO, NOT THE PRIVILEGE RE-REVIEW.

I'M DEEPLY DISTURBED BY THE HIGH RATES OF DOCUMENTS THAT

YOU ARE ALL ARE PUTTING ON YOUR PRIVILEGE LOG THAT ARE NOT

PRIVILEGED.

YOU KNOW, I WOULD HAVE APPOINTED A SPECIAL MASTER, OKAY.

I HAVE DEFERRED TO JUDGE COUSINS ON THIS. I WOULD HAVE

APPOINTED A SPECIAL MASTER, BUT I'M DEFERRING TO HIM ON THIS.

BUT IF THERE'S A SIGNIFICANT AMOUNT OF DOCUMENTS THAT ARE BEING

RE-REVIEWED BECAUSE THEY SHOULD NOT HAVE BEEN DESIGNATED AS

PRIVILEGED, THEN I THINK THE WITNESSES WHO WERE DEPOSED FOR

WHOM THOSE ARE RELEVANT DOCUMENTS, SHOULD BE RE-DEPOSED.

MR. BORNSTEIN: WITH RESPECT --

THE COURT: FOR A TARGETED LIMITED AMOUNT OF TIME.

THIS IS NOT A DO-OVER, IT WILL NOT BE UNLIMITED, BUT I

THINK THAT'S ONLY FAIR. IT'S NOT RIGHT TO HAVE WITNESSES BEING

DEPOSED WITHOUT THEIR DOCUMENTS.

MR. BORNSTEIN: YOUR HONOR, WITH RESPECT TO THE

PRIVILEGE RE-REVIEW, I'M PERFECTLY HAPPY TO DISCUSS WITH THE

FEDERAL TRADE COMMISSION AND WITH THE MDL PLAINTIFFS, WHAT AN

APPROPRIATE SCOPE WOULD BE, BASED ON THE PARTICULAR DOCUMENTS

THAT WERE PRODUCED.

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THE COURT: WELL, IT WOULD ALSO BE THE TOPICS RAISED

IN THOSE DOCUMENTS.

MR. BORNSTEIN: SURE.

THE COURT: RIGHT. THAT'S FAIR GAME.

MR. BORNSTEIN: WITHIN A REASONABLE SCOPE YOUR HONOR.

I'M SURE WE CAN WORK OUT APPROPRIATE ADDITIONAL TIME FOR

WITNESSES WHO WERE AFFECTED BY THAT ON MATERIAL ISSUES. THAT

WAS NOT WHAT I WAS INTENDING TO ADDRESS WHEN I WAS RESPONDING

TO YOUR HONOR.

THE COURT: WELL, I'M GLAD YOU AGREE WITH ME, BECAUSE

I DON'T WANT TO SEE A LOT OF DISPUTES OVER WHETHER PEOPLE

SHOULD BE RE-DEPOSED OR NOT.

MR. BORNSTEIN: I HOPE THERE WOULD BE AT LEAST SOME

SHOWING, YOUR HONOR, THAT THERE ARE MATERIAL DOCUMENTS THAT ARE

RELEVANT.

IT CAN'T JUST BE, IN OUR VIEW, A COMPLETE -- WE HAVE 30 OR

40 WITNESSES WHO HAVE BEEN DEPOSED. I WOULDN'T WANT TO SEE

EACH AND EVERY ONE RE-DEPOSED WITHOUT A BASIS SHOWING THAT

THERE WERE DOCUMENTS BEING PRODUCED SUBSEQUENT TO THEIR

DEPOSITION THAT ARE IN SOME WAY RELEVANT OR MATERIAL TO THE

ISSUES IN THE CASE.

THE COURT: AND SO WHAT DO YOU THINK THAT'S GOING TO

BE?

IF YOU ARE SAYING THEY NEED TO JUST SAY, THESE DOCUMENTS

WERE PRODUCED ON X DATE, THE DEPOSITION TOOK PLACE 30 DAYS

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BEFORE X DATE? AND THEN YOU ARE SAYING THEY ARE GOING TO HAVE

TO BRIEF IT AS TO WHY THOSE DOCUMENTS ARE RELEVANT TO A

MATERIAL ISSUE?

BECAUSE I DON'T WANT TO CREATE TOO MUCH OF A BURDEN. WE

ARE GETTING CLOSE TO THE END OF -- I MEAN, FACT DISCOVERY IS

SUPPOSED TO END NEXT WEEK. SO I'M NOT GOING TO CREATE A HIGH

BURDEN.

I AGREE WITH YOU, THEY NEED TO SHOW THAT SOMETHING WAS

PRODUCED AFTER THAT RELEVANT WITNESS WAS DEPOSED, BUT I'M NOT

GOING TO REQUIRE THEM TO BRIEF WHY THAT IS RELEVANT, WHY THIS

IS MATERIAL, WHAT ELEMENT IS THIS MATERIAL TO, NO.

I'M NOT GOING TO CREATE A LOT OF UNNECESSARY SATELLITE

LITIGATION. IT'S ONLY FAIR IF A WITNESS IS BEING DEPOSED

WITHOUT THAT WITNESS'S DOCUMENTS, THEN THEY NEED TO BE

RE-DEPOSED FOR A LIMITED TARGETED DEPOSITION.

MR. BORNSTEIN: I WAS NOT SUGGESTING WE GO THROUGH A

BRIEFING PROCESS, YOUR HONOR, YOUR GUIDANCE IS VERY CLEAR, BUT

I DO THINK THAT WE CAN AND SHOULD HAVE A DISCUSSION ON A

WITNESS-BY-WITNESS BASIS WITH THE FTC AND THE MDL PLAINTIFFS.

I'M SURE WE CAN BE GROWNUPS ABOUT IT AND JUST MAKE SURE

THAT WE ARE NOT BRINGING PEOPLE BACK FOR DOCUMENTS THAT REALLY

ARE TANGENTIAL.

AND SO I WOULD JUST LIKE TO HAVE THE OPPORTUNITY TO HAVE

THOSE CONVERSATIONS WITH THE FTC AND THE MDL PLAINTIFFS. I'M

SURE THEY DON'T WANT TO WASTE THEIR TIME EITHER, AND COME TO

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GROUNDS ON WHO THE RIGHT PEOPLE ARE.

I DON'T EXPECT, GIVEN YOUR HONOR'S GUIDANCE, THAT WE WILL

HAVE A LOT OF DISAGREEMENTS --

THE COURT: THERE SHOULDN'T BE, OTHERWISE YOU ARE

GOING TO HAVE TO SIT DOWN WITH ME, AND WE WILL GO INTO MY JURY

ROOM AND WE WILL HAVE TO HASH IT OUT, AND I WILL BE RIGHT THERE

BREATHING DOWN YOUR NECKS, BECAUSE I THINK THAT IT'S ONLY FAIR

THAT IF DOCUMENTS HAVE NOT BEEN PRODUCED UNTIL AFTER A WITNESS

HAS BEEN DEPOSED, THAT PERSON SHOULD BE DEPOSED.

AND I DON'T WANT A LOT OF SATELLITE LITIGATION, OH, THIS

IS A TANGENTIAL DOCUMENT, THAT'S NOT MATERIAL TO YOUR ELEMENTS.

BRIEF WHY IT'S MATERIAL. I'M NOT GOING TO HAVE -- THAT IS A

BUNCH OF BUSY WORK THAT'S UNNECESSARY.

I'M REALLY DISTURBED BY THE VERY HIGH PERCENTAGE OF

OVER-DESIGNATED PRIVILEGE DOCUMENTS. 67 PERCENT OF DOCUMENTS

ARE BEING UNDESIGNATED AS INAPPROPRIATELY WITHHELD FOR

PRIVILEGE.

SO I THINK THE BURDEN IS NOT GOING TO BE HIGH. IF YOU

HAVE A WITNESS THAT HAS BEEN DEPOSED AND A LOT OF DOCUMENTS

WERE PRODUCED AFTER THAT WITNESS WAS DEPOSED, I WOULD ALLOW

ADDITIONAL DEPOSITION TIME, OKAY?

AND IF I HAVE TO CHANGE THE CASE SCHEDULE IN ORDER TO MAKE

THAT HAPPEN, I WILL DO IT.

MR. BORNSTEIN: YOUR HONOR'S VIEW IS VERY CLEAR.

THANK YOU.

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THE COURT: NOW, I DON'T WANT THAT TO BE ABUSED BY

THE PLAINTIFFS.

YOU KNOW, PLAINTIFFS OVERREACH ALL THE TIME, AND IT JUST

WILL CAUSE YOU MORE HEADACHES AS WELL. SO DON'T OVERREACH.

THIS NEEDS TO BE ONLY TARGETED, ONLY LIMITED. THIS IS NOT A

FREE DO-OVER ON EVERYBODY. IT'S GOT TO BE TARGETED AND

LIMITED, AND YOU NEED TO BE REASONABLE IN WHAT YOU ARE

REQUESTING.

MS. BONN: ABSOLUTELY, YOUR HONOR.

THE ONE ADDITIONAL POINT I WOULD MAKE IS THAT WE ARE

SEEING THAT IT'S NOT MERELY THE PRIVILEGE LOG PROBLEMS THAT ARE

CAUSING ADDITIONAL DOCUMENTS TO BE PRODUCED, BUT RATHER THERE

ARE SIGNIFICANT VOLUMES OF DOCUMENTS THAT QUALCOMM HAS BEEN

PRODUCING IN THE LAST SIX WEEKS, INCLUDING OVER THIS WEEKEND,

PURPORTEDLY IN THE SD CAL CASE, AND YET THEY ARE DOCUMENTS THAT

ARE FROM CUSTODIANS IN OUR CASE, AND WE ARE SEEING THAT THEY

ARE HIGHLY RELEVANT DOCUMENTS.

AND, FOR EXAMPLE, EVEN THIS WEEKEND, QUALCOMM PRODUCED

OVER 100,000 DOCUMENTS FOR CUSTODIANS IN OUR CASE, BUT WITH THE

APPLE BATES LABEL. WE ARE SEEING THAT THERE ARE RELEVANT

DOCUMENTS.

AND AS JUST ONE EXAMPLE, IT APPEARS THAT 30,000 OF THOSE

DOCUMENTS RELATE TO MR. GONELL WHO IS A QTL LICENSING EXECUTIVE

WHO FREQUENTLY INTERACTED WITH APPLE. HE HAS KNOWLEDGE OF

RELEVANT PATENT ISSUES FOR THE MDL PLAINTIFFS IN HIS DEPOSITION

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PAST.

SO IT'S NOT MERELY THE PRIVILEGE LOG ISSUE, BUT THERE ARE

RELEVANT DOCUMENTS, A SIGNIFICANT VOLUME OF WHICH QUALCOMM IS

PRODUCING IN THE SD CAL CASE, AND WE ARE AFRAID IT WILL

CONTINUE BECAUSE APPARENTLY THEIR DISCOVERY CUTOFF IN THE SD

CAL CASE DOESN'T COME UNTIL MID-MAY.

SO THEY ARE ESSENTIALLY CONTINUING TO ROLL OUT LARGE

VOLUMES OF DOCUMENTS, PURPORTEDLY IN THAT CASE, AND YET WE ARE

FINDING IN OUR REVIEW THAT THEY ARE ALSO RELEVANT IN OUR CASE

AND SHOULD HAVE BEEN PRODUCED IN OUR CASE.

THE COURT: I WILL ALLOW WITNESSES TO BE DEPOSED

THREE TIMES, IF THAT'S NECESSARY. THAT'S MY WARNING TO

QUALCOMM.

IF IT TURNS OUT THAT YOU ARE PRODUCING DOCUMENTS THAT ARE

HIGHLY RELEVANT IN THIS CASE, AT THE END OF THE FACT DISCOVERY

PERIOD, AND THESE WITNESSES HAVE ALREADY BEEN DEPOSED, THEN I

WILL ALLOW THEM TO BE DEPOSED AGAIN.

AND THEN IF IT TURNS OUT ON MAY 1ST YOU ARE DUMPING A LOT

OF DOCUMENTS IN THE SAN DIEGO CASE THAT WOULD HAVE BEEN

RELEVANT TO THESE ISSUES, I WILL ALLOW THEM TO BE DEPOSED AGAIN

IN MAY. SO THAT IS THE RISK THAT YOU TAKE.

MR. BORNSTEIN: YOUR HONOR, THIS WAS THE ISSUE I WAS

GOING TO ADDRESS RATHER THAN THE PRIVILEGE ISSUE, BECAUSE WE

DID, IN THIS CASE, A VERY FULL PRODUCTION IN RESPONSE TO THE

REQUESTS THAT WERE SERVED IN THIS CASE. WE VALIDATED IT WITH

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OUR TECHNOLOGY-ASSISTED REVIEW MODEL. WE SHARED THE STATISTICS

WITH THE PLAINTIFFS. IT WAS EXTREMELY ROBUST, 89 PERCENT

RECALL COMPARED TO A 75 OR SO PERCENT THAT IS IN THE LITERATURE

AND HAS BEEN ACCEPTED IN PRIOR CASES.

WE ARE PRODUCING DOCUMENTS IN THE SOUTHERN DISTRICT IN

RESPONSE TO DIFFERENT REQUESTS.

THE COURT: IF THEY ARE RELEVANT TO THIS CASE, THEN

I'M GOING TO ALLOW ANOTHER DEPOSITION.

SO I'M JUST TELLING YOU, YOU RUN THE RISK, IF YOU ARE

HOLDING OFF, BECAUSE I WANT THIS CASE DECIDED ON THE MERITS. I

DO NOT LIKE CASES TO BE DECIDED ONE WAY OR THE OTHER BECAUSE

RELEVANT INFORMATION HAS BEEN WITHHELD, OKAY?

SO I AM JUST TELLING YOU, IF YOU ARE GOING TO DELAY

PRODUCTION OF RELEVANT DOCUMENTS, I WILL ALLOW AS MANY

DEPOSITIONS AS IS NECESSARY FOR A WITNESS TO BE APPROPRIATELY

DEPOSED ON THEIR OWN DOCUMENTS.

MR. BORNSTEIN: YOUR HONOR, I NEED TO BE VERY CLEAR.

THERE IS ABSOLUTELY NO DELAY OF PRODUCTION IN THIS CASE.

WE ARE GETTING STILL, REQUESTS FROM APPLE AND FROM THE

CONTRACT MANUFACTURERS IN THE SOUTHERN DISTRICT. WE HAVE

RECEIVED LITERALLY HUNDREDS, I THINK WE ARE ON 300 RFP'S

350-SOME RFP'S IN THE SOUTHERN DISTRICT.

OUR DOCUMENT PRODUCTION IN THAT CASE, WE REQUESTED TO HAVE

A SUBSTANTIAL COMPLETION DATE, AND MAGISTRATE IN THE SOUTHERN

DISTRICT SET A SUBSTANTIAL COMPLETION DATE OF MAY 11TH. WE

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ACTUALLY WOULD HAVE PREFERRED SOMETHING EARLIER SO WE COULD

HAVE GOTTEN APPLE'S DOCUMENTS EARLIER.

WE ARE IN NO WAY DELAYING OUR PRODUCTION OF DOCUMENTS IN

THIS CASE OR --

THE COURT: WELL, I'M NOT SAYING THAT YOU ARE

DELAYING PRODUCTION, WHAT I'M JUST TELLING YOU IS THAT THIS

CASE WILL BE DECIDED ON THE MERITS.

SO EVERY WITNESS WILL BE DEPOSED WITH REGARD TO THEIR

RELEVANT DOCUMENTS. AND IF IT TURNS OUT THAT THERE ARE

RELEVANT DOCUMENTS THAT WERE NOT PRODUCED IN TIME FOR THIS

PERSON'S DEPOSITION, THEY WILL BE DEPOSED AGAIN.

MR. BORNSTEIN: BUT YOUR HONOR, THIS IS PURELY AN

ARTIFACT OF THE SCHEDULES THAT WE HAVE THAT DON'T OVERLAP WITH

ONE ANOTHER.

WE HAD TO HAVE OUR DEPOSITIONS COMPLETED IN THIS CASE BY

MARCH 30TH, SUBJECT TO THE FEW THAT I KNOW ARE IN THE CASE

MANAGEMENT STATEMENT.

WE COULDN'T GET ALL OF THE DOCUMENTS DONE THAT ARE

RELEVANT IN THE SOUTHERN DISTRICT EARLIER. WE COULDN'T PUSH

THESE DEPOSITIONS OUT BECAUSE WE HAD A SCHEDULE THAT REQUIRED

US TO GET THEM DONE BY MARCH 30TH.

THE COURT: I JUST THINK IT'S INCONSISTENT. WITH

REGARD TO THE SANCTIONING OF APPLE YOU SAID, LOOK, THESE ARE

ALL THE SAME THINGS, THESE ARE ESSENTIALLY THE SAME CASES, THE

DOCUMENTS THAT ARE RELEVANT IN THAT CASE ARE RELEVANT HERE.

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SO I GUESS I'M JUST -- IN MY MIND, THE CASES ARE NOT SO

DISTINCT THAT THE DISCOVERY IS NOT OVERLAPPING.

MR. BORNSTEIN: BUT YOUR HONOR, THERE ARE A NUMBER OF

CLAIMS IN THE SOUTHERN DISTRICT CASE THAT ARE ENTIRELY NOT

BEFORE THIS COURT RELATING TO CONTRACT ISSUES, PATENT ISSUES.

THE COURT: WELL, THE PATENT ISSUES, YOU DON'T EVEN

HAVE TO PRODUCE ON. DIDN'T I SEE THAT FOOTNOTE THAT YOU ARE

NOT REQUIRED TO PRODUCE ANY DOCUMENTS IN EITHER THE FTC CASE OR

THE MDL BASED ON THOSE PATENTS?

MR. BORNSTEIN: WE DON'T PRODUCE THE PATENT ONES,

THAT'S TRUE. BUT WE HAVE A NUMBER OF CLAIMS THAT ARE SEPARATE,

AND WE ALSO HAVE A LARGE NUMBER OF CUSTODIANS IN THE SOUTHERN

DISTRICT CASE FROM WHOM DOCUMENTS ARE BEING PRODUCED THAT WERE

NOT CUSTODIANS HERE BECAUSE WE REACHED AGREEMENT WITH APPLE ON

THE PRODUCTION.

AND THERE ARE DOCUMENTS THAT MAY COME FROM THE FILE OF THE

FILES OF AN INDIVIDUAL WHO WAS A CUSTODIAN IN THE SOUTHERN

DISTRICT WHO CORRESPONDS WITH SOMEBODY WHO IS A CUSTODIAN HERE

THAT ARE PRODUCED BECAUSE THEY ARE BROUGHT IN THROUGH THE

SOUTHERN DISTRICT PRODUCTION.

THERE'S JUST NO WAY WE COULD HAVE GOTTEN EVERYTHING DONE

WITHIN A TIME THAT WE WOULD HAVE PRODUCED EVERYTHING BEFORE THE

DEPOSITIONS IN THIS CASE HAD TO HAPPEN.

SO THE RESULT --

THE COURT: WELL, IT DOESN'T MATTER. THEY ARE GOING

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TO BE DEPOSED AGAIN. LET'S MOVE ON, PLEASE.

OKAY. NOW, LET'S GO THROUGH THE OTHER ISSUES THAT YOU ALL

HAVE RAISED. NOW, I'M JUST WONDERING WITH REGARD TO ANY

OUTSTANDING MEETING AND CONFERRING THAT'S HAPPENING NOW, IS

THAT WITH REGARD TO ANY CUSTODIANS WHO HAVE YET TO BE DEPOSED,

OR IS THAT FOR CUSTODIANS THAT HAVE ALREADY BEEN DEPOSED?

I GUESS THIS IS A QUESTION FOR THE FTC FOR MS. GILLEN, OR

MR. BAKER.

MS. GILLEN: YOUR HONOR, THERE ARE A FEW DIFFERENT

MEET AND CONFER DISCUSSIONS THAT ARE ONGOING.

THE FIRST IS WITH RESPECT TO THE DEPOSITION OF DR. JACOBS

FROM QUALCOMM. HE HAS NOT BEEN DEPOSED YET. HIS DEPOSITION

WAS SCHEDULED TO OCCUR NEXT WEEK ON MARCH 29TH AND 30TH. WE

JUST LEARNED TWO DAYS AGO THAT HE IS NO LONGER AVAILABLE FOR

HIS DEPOSITION.

THE COURT: WHAT'S HIS REASON FOR BECOMING

UNAVAILABLE?

MR. BORNSTEIN: YOUR HONOR, I DON'T KNOW. THE

CIRCUMSTANCES WITH DR. JACOBS, YOU MAY HAVE SEEN IN THE PRESS,

HE WAS THE EXECUTIVE CHAIRMAN OF THE COMPANY, HE WAS A BOARD

MEMBER OF THE COMPANY. HE CEASED TO BE EXECUTIVE CHAIRMAN A

COUPLE OF WEEKS AGO, AND AS OF TOMORROW, HE WILL NO LONGER BE

ON THE BOARD.

AND HE, AS HAS BEEN REPORTED IN THE PRESS, IS IN THE

PROCESS OF TRYING TO GATHER INVESTORS TO PURCHASE QUALCOMM AND

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TAKE IT PRIVATE.

SO HIS -- HE'S NOT WITHIN OUR CONTROL, IF I CAN PUT IT

THAT WAY, YOUR HONOR. SO HE INFORMED US A COUPLE OF DAYS AGO

THAT HE HAD A CONFLICT THAT DEVELOPED, BUT HE OFFERED US TO BE

DEPOSED THE VERY NEXT WEEK.

I UNDERSTAND THE FEDERAL TRADE COMMISSION HAS A CONFLICT

THAT FIRST WEEK OF APRIL, BUT I BELIEVE WE'VE REACHED A DATE

THAT IS ACCEPTABLE FOR DR. JACOBS AND FOR THE FTC.

AND THIS IS SOMETHING THAT I LEARNED JUST AN HOUR

BEFORE --

THE COURT: THIS IS WHAT, APRIL 17TH?

MR. BORNSTEIN: I BELIEVE THAT'S THE DATE THAT THE

FTC COUNSEL IS CONSIDERING AND WAS GOING TO GET BACK TO US ON,

YES.

WE HAD OFFERED APRIL 4TH AND 5TH WHEN HE WAS AVAILABLE,

AND THEY HAD CONFLICT AND THAT DIDN'T WORK OUT. WE ADVISED

THEM AS SOON AS WE WERE ADVISED.

MS. GILLEN: YES.

AND THE FEDERAL TRADE COMMISSION HAS ASKED QUALCOMM TO

CHECK WHETHER DR. JACOBS IS AVAILABLE THE WEEK PRIOR, THE WEEK

OF APRIL 9TH. HOWEVER, WE ARE AVAILABLE TO TAKE HIS DEPOSITION

ON APRIL 17TH AND 18TH, IF NECESSARY.

THE COURT: WHAT'S YOUR CONFLICT?

MS. GILLEN: I UNDERSTAND OUR LEAD COUNSEL HAS A

PERSONAL CONFLICT THE FIRST WEEK OF APRIL THAT WAS SCHEDULED

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LONG AGO, ANTICIPATING THAT DISCOVERY WOULD BE CLOSING ON

MARCH 30TH.

THE COURT: NOW, IF YOU DON'T GET THE DEPOSITION OF

DR. JACOBS UNTIL THE 17TH, I DON'T KNOW, WILL YOU GET A ROUGH

TRANSCRIPT THE SAME DAY, OR -- BECAUSE YOUR OPENING EXPERT

REPORT IS CURRENTLY DUE ON APRIL 20TH, WHICH WOULD BE THREE

DAYS LATER. HOW ARE YOU GOING TO MAKE THAT WORK?

I MEAN, I COULD ORDER HIM TO BE AVAILABLE. YOU CAN HAVE A

COURT ORDER AND I WILL HOLD HIM IN CONTEMPT IF HE DOESN'T SHOW

UP NEXT WEEK. I'M NOT EVEN HEARING A REASON WHY HE'S NOT

AVAILABLE NEXT WEEK.

MR. SPEAKER 2: I DON'T HAVE A REASON TO GIVE YOU.

THERE'S NOTHING I'M WITHHOLDING, I'M GIVING YOU AND THE FTC AND

THE MDL PLAINTIFFS EVERYTHING I KNOW.

AS I SAID, HE IS NO LONGER SOMEBODY THAT IS WITHIN THE

COMPANY'S CONTROL, AND I JUST DON'T HAVE ANY FURTHER

INFORMATION.

THE COURT: WELL, I COULD HOLD HIM IN CONTEMPT AND WE

WILL GO IN QUASI-CRIMINAL PROCEEDINGS AS TO WHY HE'S NOT

SHOWING UP.

I MEAN, WHY IS HE SUDDENLY NOT AVAILABLE? NOT BEING

DEPOSED UNTIL THE 17TH THEN CREATES PROBLEMS FOR THE SCHEDULE

BECAUSE THEN THEY HAVE TWO BUSINESS DAYS BEFORE THEIR EXPERT

REPORT IS DUE.

MR. VAN NEST: EXCUSE ME, YOUR HONOR.

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I THOUGHT -- I HAVE BEEN PARTICIPATING ON THE OUTSIDE OF

THIS, BUT I THINK AS WE PUT IN THE CMC STATEMENT, WE HAVE ALL

AGREED TO A SHORT BUMP IN THE EXPERT SCHEDULE TO ACCOMMODATE

JUST EXACTLY THAT.

IF YOU LOOK AT PAGE 2 OF THE SUPPLEMENTAL THAT WE FILED

YESTERDAY.

THE COURT: IS THAT GOING TO GIVE THEM ENOUGH TIME?

IT'S LESS THAN TWO WEEKS.

MR. VAN NEST: WELL, THEY WERE AWARE, I THINK, I WILL

LET THEM SPEAK FOR THEMSELVES, BUT THEY WERE AWARE OF THESE

DATE ISSUES WHEN WE ALL AGREED, AND I THINK WE ALL AGREED THEY

WOULD GET IT DONE.

MS. GILLEN: YOUR HONOR, THIS IS ELIZABETH GILLEN.

THE FTC AGREES THAT WITH THE SHORT EXTENSION WE PROPOSED

OF MAKING OUR EXPERT REPORTS DUE ON APRIL 30TH, THAT THE

DEPOSITION OF DR. JACOBS ON APRIL 17TH AND 18TH WOULD BE

WORKABLE IN THAT CASE.

THE COURT: ALL RIGHT. LET'S TALK ABOUT SOME OF THE

OTHER ISSUES IN YOUR JOINT CASE MANAGEMENT STATEMENTS.

THE REQUEST FOR ADMISSION FOR THE PLAINTIFFS TO DEFINE THE

CLASS NOW, I DON'T REQUIRE THEM TO DO THAT NOW. THEY WILL

DEFINE THAT IN THEIR MOTION FOR CLASS CERT. SO LET'S AVOID,

UNNECESSARILY, A BUNCH OF DISCOVERY DISPUTES AND SAVE

JUDGE COUSINS ON THAT, OKAY?

NOW, LET'S GO TO THE NEXT ISSUE. DEPOSING SIX NEW

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QUALCOMM EMPLOYEES, QUALCOMM SAYS PLAINTIFF HAS KNOWN ABOUT

THESE EMPLOYEES FOR MONTHS. BUT ALSO, QUALCOMM SAYS THAT THEY

ONLY GOT THE DOCUMENTS FOR THESE EMPLOYEES WEEKS AGO, AS OF

MARCH 9TH.

SO I GUESS TO ME, IT SEEMS REASONABLE THAT IF YOU DON'T

GET THE DOCUMENTS FOR SOMEBODY, AND YOU ARE GETTING A LARGE

VOLUME OF DOCUMENTS, THAT IT'S GOING TO TAKE A FEW WEEKS TO

FIGURE OUT WHAT'S IN THOSE DOCUMENTS AND WHETHER YOU NEED THOSE

WITNESSES.

SO I WOULD ALLOW THOSE SIX QUALCOMM EMPLOYEE DEPOSITIONS.

MR. VAN NEST: YOUR HONOR, WITH ALL DUE RESPECT, WE

HAVE ALREADY WORKED OUT MOST OF THAT. WE ALREADY AGREED THAT

AS TO THE FIRST THREE, WE WOULD PROVIDE ONE, AND WITHDRAW THE

OTHER TWO THAT WERE ON OUR RULE 26 DISCLOSURES.

THE OTHER WITNESSES WERE NEVER ON OUR RULE 26 DISCLOSURES

AT ALL. WE DON'T INTEND TO RELY ON THEM. IT'S NOT A QUESTION

OF DOCUMENTS, THEY WERE PEOPLE THAT CAME UP THAT HAD BEEN KNOWN

TO THE PLAINTIFF SINCE DAY ONE. THEY WERE MENTIONED IN

DEPOSITIONS BACK IN JANUARY AND EARLY FEBRUARY. WE ARE STILL

NEGOTIATING, SO --

THE COURT: WELL, I MEAN, THEY CAME UP IN DEPOSITIONS

LAST MONTH. SO I GUESS I DON'T SEE WHAT'S SO LATE. I'M

LOOKING AT WHAT YOU FILED, ECF 376, PAGE 15, THAT SAYS,

"PLAINTIFF'S IMPLICATION THAT QUALCOMM HAS NOT PRODUCED ANY

RESPONSIVE DOCUMENTS FROM THE FILES OF THESE WITNESSES IS

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SIMPLY FALSE. QUALCOMM PRODUCED DOCUMENTS FOR THESE WITNESSES

WEEKS AGO AND TOLD PLAINTIFFS SO BEFORE THE LAST JCMS WHEN THEY

INQUIRED."

MR. VAN NEST: BUT, YOUR HONOR --

THE COURT: I MEAN, I GUESS IT SEEMS REASONABLE THAT

IF YOU GET DOCUMENTS FROM A WITNESS AND YOU GET SOME TIME TO

REVIEW THOSE DOCUMENTS, YOU COULD MAKE A DECISION THAT THIS

WITNESS SHOULD BE DEPOSED. THAT DOES NOT SEEM UNREASONABLE.

MR. VAN NEST: NO. THAT'S NOT UNREASONABLE.

THESE DOCUMENTS DON'T PERTAIN TO THE WITNESSES THAT WE

STILL HAVE AN OPEN ISSUE ON. THOSE DOCUMENTS PERTAIN TO

WITNESSES THAT WE'VE RESOLVED.

THE WITNESSES THAT WE ARE STILL WORKING ON ARE WITNESSES

THAT WERE NEVER ON OUR RULE 26 LIST TO BEGIN WITH, WE ARE NOT

GOING TO CALL THEM IN THE TRIAL.

WE ARE STILL MEETING AND CONFERRING, FRANKLY, WITH THE

CLASS PLAINTIFFS ON THEM, BUT THEY ARE NOT PEOPLE THAT ARE

AFFECTED BY DOCUMENTS, THEY'RE NOT PEOPLE THAT WERE EVER ON OUR

LIST. THEY ARE NOT PEOPLE WE ARE GOING TO CALL IN THE TRIAL.

AND, FRANKLY, WE SAID, WHY DID YOU GUYS WAIT SO LONG TO

INDICATE YOU WANTED THESE PEOPLE, IF YOU DID?

AS YOUR HONOR KNOWS, WE HAD VERY EARLY DEADLINES FOR

PRODUCTION, WE HAD VERY EARLY DEADLINES FOR SUBPOENAS. WE HAVE

BEEN WORKING VERY HARD TO GET ALL THE DEPOSITIONS DONE. IT

WASN'T UNTIL AFTER THE LAST CMC WHEN YOUR HONOR ASKED FOR THE

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LODESTAR THAT THIS REQUEST WAS EVEN MADE.

IN OTHER WORDS, THEY HAVE BEEN GOING ALONG VERY HAPPY TO

COATTAIL WITH THE FTC, AND IT WASN'T UNTIL AFTER THE LAST CMC

WHEN YOUR HONOR SAID, I WOULD LIKE IT SEE YOUR LODESTAR, THE

VERY FIRST TIME WE GET A 30(B)(6) NOTICE, REQUEST FOR

DEPOSITIONS, A BUNCH OF SUBPOENAS TO THIRD PARTIES.

NOW WE HAVE WORKED THESE ALL OUT. WE HAVE TWO MORE WE ARE

WORKING ON, AND WHAT I WOULD LIKE TO DO IS HAVE AN OPPORTUNITY

TO WORK THAT OUT WITH THE FTC OR GET IT RESOLVED BY

JUDGE COUSINS IF WE CAN'T DO IT.

BUT IT'S NOT A SITUATION WHERE THEY GOT DOCUMENTS LATE ON

THESE PEOPLE OR ANYBODY SANDBAGGED ANYBODY, OTHER THAN THEY

HAVE KNOWN ABOUT THESE GUYS ALL ALONG, THEY SHOULD HAVE GIVEN

US NOTICE MUCH EARLIER WHEN WE WORKED OUT THE SCHEDULE.

AND WE HAVE AGREED TO GIVE THEM ONE OF THE SIX ALREADY.

AND WE ARE DOWN TO TWO WITNESSES THAT WE ARE TALKING ABOUT THAT

ARE AT ISSUE WHERE THERE'S NO DOCUMENT ISSUE AT ALL.

MS. BONN: MAY I RESPOND, YOUR HONOR?

THE COURT: GO AHEAD, PLEASE.

MS. BONN: THE TWO WITNESSES WHO WERE LEFT IN DISPUTE

ARE MR. TIEDEMANN AND MR. KATOUZIAN. AND THE ISSUE HERE IS

PRECISELY THAT QUALCOMM OMITTED THEM FROM THE INITIAL

DISCLOSURES.

THE POINT OF THE INITIAL DISCLOSURES IS NOT, HERE ARE THE

WITNESSES I INTEND TO CALL AT TRIAL, IT'S HERE ARE PEOPLE WHO

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THEY HAVE DISCOVERABLE INFORMATION.

AND WHAT QUALCOMM DID IS THEY LISTED ON THEIR RULE 26

DISCLOSURES, PEOPLE WHO WERE DIRECT REPORTS TO MR. KATOUZIAN

AND MR. TIEDEMANN, AND SAID THEY WOULD HAVE KNOWLEDGE ON

CERTAIN KEY ISSUES.

AND YET WHEN WE DEPOSED THOSE DIRECT REPORTS, THEY

FREQUENTLY SAID THINGS LIKE, I ACTUALLY DON'T KNOW ABOUT THAT,

YOU HAVE TO ASK MY BOSS.

AND WITH THE LARGE VOLUME OF DOCUMENTS THAT HAVE BEEN

ROLLING IN IN THE LAST SIX WEEKS, COMBINED WITH WHAT'S HAPPENED

IN THOSE DEPOSITIONS, WE REALIZED THAT THESE TWO KEY EXECUTIVES

ARE PARTICULARLY IMPORTANT.

MR. TIEDEMANN IS OFTEN DESCRIBED AS THE HEAD OR THE CHIEF

STRATEGIST BEHIND QUALCOMM'S STANDARDS SETTING ACTIVITIES, AND

MR. KATOUZIAN IS THE HEAD OF THEIR MOBILE CHIP UNIT, AND THERE

WERE KEY PRICING AND MARGIN-RELATED QUESTIONS THAT HIS

SUBORDINATE WAS NOT ABLE TO ANSWER.

AND SO, YOU KNOW, IF THEY HAVE BEEN INCLUDED ON QUALCOMM'S

INITIAL DISCLOSURES EARLIER, WE MAY HAVE MADE A REQUEST

EARLIER. THEY WEREN'T. AND SO AS SOON AS IT BECAME APPARENT

THAT THESE WERE NECESSARY WITNESSES, WE MADE A REQUEST FOR THEM

ON MARCH 6TH, YOU KNOW, WELL IN ADVANCE.

THE COURT: WHAT'S THE STATUS OF ALL SIX THAT WERE IN

YOUR JOINT CASE MANAGEMENT STATEMENT OF MARCH 9, 2018, I TOLD

THE PARTIES PLEASE MEET AND CONFER, TRY TO WORK THIS OUT AS

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MUCH AS YOU CAN.

YOU FILED A SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT

ON MARCH 20TH OF 2018, AND THIS IS STILL NOT RESOLVED, EVEN

THOUGH I GAVE YOU AN OPPORTUNITY, THAT WAS THE TIME TO WORK IT

ALL OUT.

SO WHAT'S THE STATUS OF ALL SIX? THAT YOU DON'T NEED,

WHAT IS THAT, YOU DON'T NEED THREE?

MS. BONN: CORRECT, YOUR HONOR.

THE REMAINING THREE DEPOSITIONS THAT ARE STILL IN DISPUTE

ARE MR. TIEDEMANN, MR. KATOUZIAN AND OUR 30(B)(6) NOTICE WHICH

WE'RE CONTINUING TO MEET AND CONFER ON. WE HAVE MADE AN EFFORT

TO NARROW IT IN RESPONSE TO QUALCOMM'S --

THE COURT: WAIT, I THOUGHT YOUR SIX NEW QUALCOMM

EMPLOYEES IS SEPARATE FROM YOUR 30(B)(6) DISPUTE.

MS. BONN: CORRECT. THOSE ARE THE ONLY THREE

DEPOSITION DISPUTES WITH QUALCOMM THAT ARE REMAINING.

THE COURT: OKAY.

SO OF THE SIX, QUALCOMM HAS AGREED TO GIVE YOU ONE. AND

YOU HAVE WITHDRAWN YOUR REQUEST FOR THREE OUT OF THE SIX; IS

THAT RIGHT?

MS. BONN: CORRECT.

AND WE ARE STILL MEETING AND CONFERRING ON THE OTHER TWO,

YOUR HONOR.

THE COURT: THE OTHER TWO SHOULD BE DEPOSED.

MR. VAN NEST: IF I MAY, YOUR HONOR.

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THE RULE 26 DISCLOSURES THAT BOTH SIDES PROVIDED THE

PEOPLE WITH RELEVANT KNOWLEDGE THAT YOU INTEND TO RELY ON TO

PRESENT OR DEFEND A CLAIM, OUR RULE 26 DISCLOSURES WERE FULL

AND COMPLETE. WE MADE DOCUMENT PRODUCTIONS EARLY. WE WERE

SUBSTANTIALLY COMPLETE BY LATE NOVEMBER.

TO THE EXTENT THEY WANTED THESE PEOPLE, THEY SHOULD HAVE

ASKED FOR THEM EARLIER. I DISAGREE THAT THE FOLKS THAT REPORT

TO THEM, AND IN SOME CASES THEIR BOSSES WERE ALL DEPOSED,

PROVIDED RELEVANT INFORMATION, IT IS NOW WITHIN A WEEK OF THE

CLOSE OF DISCOVERY. AND AGAIN, THIS DIDN'T COME UP UNTIL THE

LAST CMC WITH RESPECT TO THESE FOLKS.

SO MY REQUEST FOR YOUR HONOR IS SIMPLY TO ALLOW US TO

CONTINUE MEETING AND CONFERRING.

THE COURT: YOU'VE ALREADY HAD AN OPPORTUNITY TO MEET

AND CONFER. DISCOVERY CLOSES NEXT WEEK. THOSE TWO NEED TO BE

DEPOSED TIEDEMANN AND KATOUZIAN.

WE ARE RUNNING OUT OF TIME HERE, AND I'M GOING TO DECIDE

WHAT'S LEFT. LET'S SEE, NOW THIS THIRD PARTY, I UNDERSTAND YOU

BRIEFED IT ON MARCH 9TH IN YOUR JOINT CASE MANAGEMENT STATEMENT

AND YOUR SUPPLEMENTAL SAYS IT'S STILL OUTSTANDING; IS THAT

RIGHT?

MS. BONN: CORRECT, YOUR HONOR.

THE COURT: I JUST SEE THE MDL PLAINTIFFS AT QUALCOMM

DISAGREE AS TO WHETHER OUTSTANDING THIRD-PARTY DISCOVERY

WARRANTS A CHANGE IN THE CASE SCHEDULE.

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IS THAT JUST RELATING TO THE CASE SCHEDULE, OR WHAT'S THE

DISPUTE WITH REGARD TO THE THIRD PARTIES?

MS. BONN: THE DISPUTE IS THAT PLAINTIFFS'S EXPERTS,

IN REVIEWING SOME OF THE PASS-THROUGH RELATED DATA THAT HAS

BEEN PRODUCED BY THE PARTIES WE HAVE SUBPOENAED, IDENTIFY THREE

ADDITIONAL COMPANIES THAT THEY BELIEVE ARE WITHIN THE CHAIN OF

DISTRIBUTION AND HAVE CRITICAL INFORMATION RELATING TO THE

PASS-THROUGH.

SO WE HAVE SERVED ADDITIONAL DOCUMENT SUBPOENAS ON THOSE

ENTITIES NOT ANY DEPOSITION SUBPOENAS. QUALCOMM HAS TAKEN THE

POSITION THAT WE SHOULD BE FORECLOSED FROM SERVING THOSE

SUBPOENAS BECAUSE WE DIDN'T DO SO BEFORE DECEMBER 15TH OF LAST

YEAR.

AND THE POINT WE ARE MAKING, YOUR HONOR, IS THAT WE WERE

UNAWARE THAT THEY WERE RELEVANT ENTITIES IN THE CHAIN OF

DISTRIBUTION UNTIL AFTER WE RECEIVED PASS THROUGH DATA FROM THE

OTHER ENTITIES THAT RESPONDED TO OUR SUBPOENAS BY

DECEMBER 15TH.

AND IT CAME TO LIGHT THROUGH OUR EXPERT'S REVIEW OF THAT

DATA.

MR. VAN NEST: YOUR HONOR, I THINK THE ONLY ISSUE

WITH RESPECT TO THESE IS THE SCHEDULE. THE SUBPOENAS WENT OUT.

THE THIRD PARTIES WERE ADVISED OF WHAT THE SCHEDULE HAD BEEN.

YOUR HONOR ORDERED ALL THIRD PARTY DISCOVERY COMPLETED BY

JANUARY 5TH. SO THE THIRD PARTIES ARE AWARE OF THAT, AND THEY

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WILL EITHER ACT ON IT OR THEY WON'T.

BUT I THINK THE ONLY OUTSTANDING ISSUE IS THE PLAINTIFFS

ARE ASKING FOR A BUMP IN THE CLASS CERT SCHEDULE. AND THAT'S

WHAT WE ARE OBJECTING TO.

I THINK YOUR HONOR WILL REMEMBER THAT WE HAD A LOT OF

DISCUSSION WHEN WE SET THIS SCHEDULE ABOUT HOW TIGHT THINGS

WERE. RIGHT NOW, WE HAVE A CLASS CERT HEARING IN JULY, AND ON

THE 26TH, AND THE EXPERT REPORTS ARE DUE STARTING IN EARLY

SEPTEMBER.

SO THESE ARE A FEW ADDITIONAL FOLKS -- I'M SORRY,

YOUR HONOR, DID YOU WANT TO --

THE COURT: I'M SORRY, I HAVE A JURY NOTE. I HAVE A

JURY THAT'S BEEN DELIBERATING SINCE TUESDAY.

MR. VAN NEST: SO THEY ARE ASKING FOR A TWO-WEEK

BUMP, BUT IN FACT, I THINK THE INFORMATION IN THE DEPOSITIONS

ARE NOT LIKELY TO BE RELEVANT. IF THEY ARE, THEY CAN EASILY BE

PLUGGED IN AS CITATIONS.

THESE SUBPOENAS WERE SENT BY THEM AT A TIME OF THEIR

CHOOSING. AND SO THEY'RE ASKING FOR A TWO-WEEK BUMP. UNDER

THEIR SCHEDULE, YOUR HONOR WOULD THEN HAVE SIX DAYS BETWEEN THE

REPLY BRIEFS AND THE HEARING TO CONSIDER THINGS.

AND FRANKLY, GIVEN THE COMPLEXITY OF THE CERT ISSUE IN

THIS CASE, I THINK THAT'S -- I DON'T THINK THAT'S WARRANTED AND

I DON'T THINK THEY NEED THE TWO WEEKS.

THE COURT: ALL RIGHT.

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WELL, CAN WE ADDRESS -- IF WE DISENTANGLED THE SCHEDULE

FOR CLASS CERT, WHAT IS YOUR VIEW ON JUST THESE? I GUESS YOU

DON'T WANT TO DEPOSE THEM; IS THAT RIGHT?

YOU HAVE SERVED FOUR DOCUMENT REQUEST SUBPOENAS AND YOU

WANT TO COLLECT TRANSACTIONAL DATA, BUT YOU DON'T PLAN TO

DEPOSE THEM OR CALL THEM AS TRIAL WITNESSES? I MEAN, THIS IS

WHAT YOU SAID ON MARCH 9TH.

MS. BONN: CORRECT.

THESE ARE ESSENTIALLY SUBPOENAS FOR TRANSACTIONAL DATA

THAT IS RELEVANT FOR OUR EXPERTS WHO ARE ANALYZING

PASS-THROUGH.

THE COURT: ALL RIGHT.

WELL, WHAT IS YOUR VIEW ON THIS? THEY DON'T WANT TO

DEPOSE THEM, THEY ARE NOT GOING TO CALL THEM AS WITNESSES, BUT

THEY WANT THEIR TRANSACTIONAL DATA, WHICH I DON'T EVEN KNOW

WHAT THAT MEANS. WHAT IS THAT?

MS. BONN: GOOD QUESTION, YOUR HONOR.

FOR THE MOST PART, MY UNDERSTANDING OF WHAT OUR EXPERTS

ARE DOING WITH PASS-THROUGH IS THAT THEY NEED TO COLLECT DATA

FROM DIFFERENT LEVELS IN THE DISTRIBUTION CHAIN TO USE IN THEIR

EXPERT ANALYSIS TO DEMONSTRATE CLASS WIDE IMPACT. AND THAT'S

WHAT THIS DATA IS RELATED TO.

THE COURT: ALL RIGHT. WHAT'S YOUR VIEW ON THAT?

MR. VAN NEST: MY VIEW ON THAT, YOUR HONOR, IS THAT

THEY SHOULD HAVE SERVED THE SUBPOENAS MONTHS AGO SINCE YOU

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ORDERED THIRD-PARTY DISCOVERY DONE BY JANUARY 5TH.

EVERYBODY MOVED HEAVEN AND EARTH TO GET THIS STUFF DONE.

THEY CERTAINLY HAD EXPERTS SINCE THE BEGINNING OF THE CASE.

THEY KNEW WHAT THEY NEEDED. BUT OBVIOUSLY THEY HAVE SUBPOENAS

OUT THERE. THE THIRD PARTIES ARE EITHER GOING TO PROVIDE DATA

OR THEY ARE NOT.

MY POINT IS SIMPLY, WE DON'T NEED TO MOVE THE SCHEDULE AND

CREATE A VERY, VERY, I THINK UNDESIRABLE CLASS CERT BRIEFING

AND ARGUMENT SCHEDULE BASED ON SOME LATE SUBPOENAS THAT THESE

FOLKS SERVED VERY LATE IN THE GAME.

THE COURT: WHEN IS THE DUE DATE ON THE SUBPOENAS?

MS. BONN: I BELIEVE IT'S BY THE END OF THE MONTH, WE

HAVE ALREADY STARTED MEETING AND CONFERRING WITH COUNSEL WHO

HAVE ACCEPTED SERVICE OF THE SUBPOENAS.

BUT I BELIEVE THE DEADLINE IS AT THE END OF THE MONTH.

THE DEADLINE ON THE FACE OF THE SUBPOENAS, IT MAY TAKE A LITTLE

BIT LONGER TO GET THE DATA, PRACTICALLY.

AND YOUR HONOR, PART OF THE REASON WE ARE REQUESTING A

BRIEF TWO-WEEK EXTENSION OF THE CLASS CERT BRIEFING IS NOT

SOLELY THAT ISSUE, BUT THERE ARE DEPOSITIONS THAT ARE ONGOING

INTO THE MONTH OF APRIL.

AND FOR EXAMPLE, WE JUST HEARD THIS MORNING THAT ERICSSON,

WHO HAS KEY WITNESSES WHO WERE SET TO TESTIFY NEXT WEEK IN

STOCKHOLM, CAN NO LONGER DO SO, AND THAT NEEDS TO BE

RESCHEDULED FOR APRIL.

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SO THERE ARE CRITICAL WITNESSES BEING DEPOSED IN APRIL,

AND QUALCOMM SEEMS TO ACKNOWLEDGE THAT JUSTIFIES TEN-DAY

EXTENSIONS OF FTC'S EXPERT REPORT DEADLINE. AND YET WHEN IT

COMES TO PLAINTIFFS, WHO ALSO HAVE EXPERT REPORTS, OR

DECLARATIONS AT LEAST, DUE WITH THEIR CLASS CERT MOTION, THEY

ARE UNWILLING TO GIVE US WHAT'S A BRIEF EXTENSION OF TWO WEEKS.

IT'S NOT JUST PREJUDICIAL, AND I THINK THIS IS JUST AN EFFORT

TO JAM US UP.

THE COURT: LET ME ASK ON THE THIRD PARTY, ARE WE

THEN JUST GOING TO WAIT AND SEE IF THOSE THIRD PARTIES RESPOND?

OR I DON'T REALLY KNOW, WHAT IS THERE TO DO ON THIS?

MR. VAN NEST: NOTHING, YOUR HONOR. NO ONE HAS MOVED

TO QUASH AND NO ONE HAS MOVED TO QUASH THE SUBPOENAS, AND

APPARENTLY THEY ARE MEETING AND CONFERRING THAT THOSE PARTIES

WILL DO WHATEVER THEY ARE GOING TO DO.

BUT IT SOUNDS LIKE THAT'S NOT A REASON TO MOVE THE

SCHEDULE BECAUSE THAT INFORMATION IS GOING TO BE PROVIDED

EITHER LATER THIS MONTH OR IN EARLY APRIL.

AND THE DEPOSITIONS DON'T RELATE TO CLASS CERT. THE

DEPOSITIONS THAT ARE HANGING OUT INTO APRIL ARE LIABILITY-TYPE

DEPOSITIONS OF OEM AND THE LIKE. THEY DON'T HAVE ANYTHING TO

DO WITH PRICING OR PASS-THROUGH. SO THOSE AREN'T AN EXCUSE.

THERE'S NO EXCUSE FOR, AS FAR AS WE ARE CONCERNED, KEEPING

THE CLASS CERT ON THE SCHEDULE IT IS NOW, WHICH IS ALREADY

TIGHT.

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THE COURT: LET ME ASK, WITH REGARD TO THIRD PARTY

RETAILER TRANSACTIONAL DATA, YOU ARE NOT ASKING FOR ANY RULING.

IS THAT JUST A HEADS UP? WHY IS THIS IN HERE?

MS. BONN: WE RAISED IT BECAUSE THE DATE WE SERVED

THE SUBPOENAS QUALCOMM INDICATED THEY HAD AN OBJECTION AND THEY

THOUGHT IT WAS UNTIMELY.

AND SO BECAUSE WE RECEIVED THAT EMAIL, WE PROMPTLY RAISED

IT FOR YOUR HONOR, BUT APPARENTLY THEY DON'T INTEND TO MOVE TO

QUASH OR MAKE AN ISSUE OF IT, SO PERHAPS THERE IS NO ISSUE.

THE COURT: ARE YOU INTENDING TO MOVE TO QUASH THOSE?

MR. VAN NEST: NO. WE DON'T HAVE STANDING TO MOVE TO

QUASH THOSE, YOUR HONOR.

THE COURT: OKAY.

MR. VAN NEST: THE THIRD PARTIES MAY, BUT THEY ARE

THIRD PARTIES.

THE COURT: OKAY.

WELL, I'M GOING TO SAY FOR THE -- I WOULD LIKE TO TRY TO

LIMIT AS MUCH AS WE CAN, SATELLITE LITIGATION ON ISSUES THAT

ARE REALLY NOT WARRANTING SATELLITE LITIGATION.

SO TO THE EXTENT THAT YOU ARE NOT SEEKING TO DEPOSE THESE

PEOPLE, YOU ARE NOT GOING TO CALL THEM AS WITNESSES, THEN I'M

JUST SAYING THAT THEY SHOULD RESPOND TO YOUR SUBPOENAS FOR THIS

PASS-THROUGH DATA, OKAY?

MS. BONN: YES, YOUR HONOR. THANK YOU.

THE COURT: NOW I'M TAKING THE PLAINTIFFS AT YOUR

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WORD THAT YOU ONLY LEARNED ABOUT THIS THIRD PARTY RETAILER

TRANSACTIONAL DATA ONCE YOUR EXPERT STARTED DOING ANALYSIS OF

DATA THAT WAS PRODUCED AFTER DECEMBER 15TH, 2017.

MS. BONN: CORRECT, YOUR HONOR.

THE COURT: AND YOUR SUBPOENA DID NOT ASK FOR

DEPOSITION, DID IT?

MS. BONN: NO, IT DID NOT.

THE COURT: ALL RIGHT.

SO IT'S NOT FOR THE PURPOSE OF DEPOSITION OR FOR TRIAL

TESTIMONY, BUT ONLY TO PRODUCE THE PASS-THROUGH DATA. I WILL

ALLOW THAT. OKAY.

NOW, LET'S SEE, WHAT IS NEXT? WHAT ARE THE DIFFERENT

EXPERTS THAT YOU ARE ANTICIPATING AND WHAT ARE THEIR TOPICS? I

DON'T KNOW IF THAT'S DIFFERENT FOR ALL THE PARTIES.

MR. VAN NEST: IT IS, YOUR HONOR.

THE COURT: OKAY.

MR. VAN NEST: I THINK SPEAKING JUST FOR QUALCOMM ON

THE MDL CASE, WE HAVE, WE WILL HAVE EXPERTS ON CLASS CERT.

THAT'S ABOUT AS FAR AS --

THE COURT: AND WILL THEY BE ECONOMISTS?

MR. VAN NEST: YES.

THE COURT: OKAY. AND DO YOU HAVE A SENSE OF THE

NUMBER? AND IF YOU DON'T NOW, THAT'S FINE.

MR. VAN NEST: I DON'T, YOUR HONOR, BUT IT WILL BE A

SMALL NUMBER.

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THE COURT: OKAY.

MR. VAN NEST: ON THE CERT ISSUE.

THE COURT: ALL RIGHT. ANY OTHERS THAT YOU

ANTICIPATE FOR THE MDL CASE?

MR. VAN NEST: THERE WILL CERTAINLY BE OTHERS

DEPENDING ON WHETHER OR NOT THE CLASS IS CERTIFIED, AND IF SO,

ON WHAT POINTS. THERE WILL BE ECONOMISTS AND EXPERTS IN A

VARIETY OF FIELDS.

I CAN'T REALLY GIVE YOUR HONOR AN EXHAUSTIVE LIST BECAUSE

WE HAVEN'T THOUGHT THAT FAR AHEAD YET.

THE COURT: THAT'S FINE. AND WHAT ABOUT THE FTC, DO

YOU KNOW IN THIS CASE? I ASSUME ON ALL OF THESE, THEY ARE ALL

GOING TO BE ECONOMISTS.

MS. BONN: FOR THE FTC OR MDL PLAINTIFFS?

THE COURT: FOR BOTH.

MR. VAN NEST: SO I WILL LET MR. BORNSTEIN SPEAK FOR

QUALCOMM ON THE FTC, AND I WILL LET THE FTC SPEAK FOR

THEMSELVES.

MR. BORNSTEIN: SO FOR THE FTC CASE, WE DO HAVE

ECONOMISTS, YOUR HONOR.

THE COURT: OKAY. AND YOU DON'T HAVE TO KNOW NOW,

BUT DO YOU HAVE A SENSE OF THE NUMBERS AT THIS POINT?

MR. BORNSTEIN: I DON'T KNOW NOW, YOUR HONOR.

THE COURT: OKAY. THAT'S FINE.

MR. BORNSTEIN: WITH THE WAY THE SCHEDULE IS SET UP,

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WE HAVE RESPONSIVE REPORTS.

THE COURT: IT'S FURTHER OUT. THAT'S FINE.

WHAT ABOUT THE MDL PLAINTIFFS, WHAT DO YOU ENVISION IN

TERMS OF EXPERTS AND WHAT TOPICS?

MS. BONN: YES. WE HAVE SEVERAL ECONOMISTS THAT WE

ARE WORKING WITH. WE WILL TRY TO STREAMLINE THE NUMBER OF

ECONOMISTS, BUT THERE MAY BE MORE THAN ONE.

WE ALSO HAVE A PATENT LICENSING EXPERT.

THE COURT: OKAY.

MS. BONN: AND A TECHNICAL EXPERT WHOSE WORK

INTERTWINES WITH THE PATENT LICENSING EXPERT. HE'S SOMEONE WHO

MAY OFFER OPINIONS ON CERTAIN PATENTS.

MS. GILLEN: YOUR HONOR, THE FTC IS ANTICIPATING A

SMALL NUMBER OF EXPERTS, AT LEAST ONE ECONOMIST, AND A SMALL

NUMBER OF ADDITIONAL EXPERTS ON TOPICS SUCH AS PATENT

LICENSING.

THE COURT: OKAY. AND THE TECHNICAL PATENT EXPERT

WILL BE WHAT, TALKING ABOUT WHETHER THE PATENTS ARE STANDARD,

ESSENTIAL OR WHAT?

MS. BONN: CORRECT, YOUR HONOR.

AND OTHER ISSUES RELATING TO THE PATENTS THAT MAY, FOR

EXAMPLE, BE RELEVANT TO DETERMINING THE RELATIVE STRENGTH OF

QUALCOMM'S PORTFOLIO COMPARED TO OTHER PATENT PORTFOLIOS THAT

ARE PART OF THE RELEVANT, ESSENTIALLY ROYALTY STACKS IN THIS

CASE.

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THE COURT: OKAY. IS THE FTC GOING TO HAVE A

TECHNICAL PATENT EXPERT?

MS. GILLEN: WE ARE STILL WORKING THAT OUT AT THIS

TIME, BUT THE FTC CURRENTLY PLANS TO HAVE A SMALL NUMBER.

THE COURT: OKAY. AND THEN I WOULD ASSUME FOR

QUALCOMM, YOU WILL HAVE REBUTTAL EXPERTS FOR WHOMEVER -- LIKE,

YOU MAY HAVE YOUR OWN PATENT LICENSING EXPERTS, AND TECHNICAL.

MR. BORNSTEIN: TO THE EXTENT WE DEEM IT NECESSARY

AFTER SEEING THE REPORTS, YES, YOUR HONOR.

THE COURT: OKAY. ALL RIGHT.

WE DON'T HAVE TO DECIDE THIS NOW, BUT I WOULD LIKE TO,

BEFORE ALL THE FILING DEADLINES, PUT SOME LIMITS ON THE NUMBER

OF DAUBERTS.

I SUSPECT THAT MOST OF THE DAUBERTS WILL BE DENIED BECAUSE

IT'S REALLY GOING TO GO TO WEIGHT AND ADMISSIBILITY AND THAT

YOU WILL RAISE VERY, YOU KNOW, STRONG OBJECTIONS TO EACH

OTHER'S EXPERTS, BUT THAT REALLY IS MORE NEAR CROSS-EXAMINATION

OR FOR CLOSING ARGUMENT AND NOT FOR EXCLUDING AN EXPERT.

SO I DON'T WANT A HUGE NUMBER OF DAUBERTS. I WOULD LIKE

YOU TO THINK ABOUT FOR NEXT TIME WHAT YOU THINK THE APPROPRIATE

NUMBER IS, ESPECIALLY BECAUSE THERE ARE MULTIPLE CASES GOING ON

HERE. I JUST WANT IT TO BE OVERWHELMING.

I WOULD PREFER TWO DAUBERTS PER CASE, PER SIDE. BUT IF

YOU WOULD PLEASE THINK ABOUT IT FOR NEXT TIME. WE DON'T HAVE

TO DECIDE NOW, IT'S AWFULLY EARLY, BUT THERE WILL BE A LIMIT,

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THE QUESTION IS WHAT THAT LIMIT IS GOING TO BE.

OKAY. SO THAT'S EXPERTS, THAT'S DAUBERTS. SO WHO DO YOU

HAVE LEFT? WE HAVE DR. JACOBS, WE HAVE THE FOLKS, THE THIRD

PARTIES THAT ARE ON YOUR MARCH 20TH CASE MANAGEMENT CONFERENCE

STATEMENT. WE HAVE TIEDEMANN AND KATOUZIAN, AND THEN THE

30(B)(6).

IS THERE ANY OTHER OUTSTANDING DEPOSITION, OR ARE YOU

LARGELY DONE?

MR. BORNSTEIN: WE HAVE A NUMBER OF PEOPLE BEING

DISPOSED NEXT WEEK WHO ARE ALREADY SCHEDULED AND WHO WILL BE

GOING FORWARD.

THE COURT: AND HOW MANY ARE THOSE?

MR. BORNSTEIN: ON THE ORDER OF 5 OR 6.

MS. BONN: SOMETHING LIKE THAT.

MR. BORNSTEIN: THAT ARE HAPPENING NEXT WEEK. AND

THOSE INCLUDE, INCIDENTALLY, BOTH QUALCOMM WITNESSES AND

THIRD-PARTY WITNESSES, BUT WHO ARE ON CALENDAR AND GOING

FORWARD.

THE COURT: AND DOCUMENTS FOR THOSE DEPONENTS HAVE

BEEN PRODUCED; IS THAT RIGHT?

MR. BORNSTEIN: YES, THE DOCUMENTS HAVE BEEN

PRODUCED. THERE ARE DOCUMENTS WHICH I'M SURE WILL BE PART OF

THIS CONVERSATION WE WILL HAVE REGARDING THE SOUTHERN DISTRICT

PRODUCTION, BECAUSE WE KNOW WE HAVE MORE DOCUMENTS TO PRODUCE

IN THE SOUTHERN DISTRICT, GIVEN THE SCHEDULE THERE. WE CAN'T

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AVOID THAT.

WE ALSO HAVE THE ISSUE THAT MS. BONN RAISED REGARDING

ERICSSON, WHICH IS ONE OF THE THIRD PARTY WITNESS. WE WERE

INFORMED, LITERALLY THIS MORNING, THAT THE SWEDISH GOVERNMENT

RAISED AN OBJECTION TO THE DEPOSITIONS HAPPENING IN STOCKHOLM

AND DOESN'T WANT THE DEPOSITIONS TO HAPPEN ON SWEDISH SOIL.

THE COURT: OKAY. WHY IS THAT?

MR. BORNSTEIN: I DON'T KNOW, THIS WAS NEWS TO US, IT

WAS APPARENTLY NEWS TO THE FTC AS WELL, WHOSE INTERNATIONAL

AFFAIRS DIVISION HAS BEEN IN TOUCH WITH THE RELEVANT AUTHORITY

IN SWEDEN. WE WERE ALL TAKEN BY SURPRISE.

SO ARE WORKING WITH ERICSSON'S COUNSEL TO FIND AN

ALTERNATE LOCATION, AND IF NECESSARY, THE ERICSSON WITNESSES

HAVE INDICATED THEIR WILLINGNESS TO TRAVEL TO THE UNITED STATES

FOR DEPOSITIONS.

THE COURT: OKAY. THANK YOU. BUT YOU DON'T HAVE

DATES THEN, THAT WILL PROBABLY BE SOME TIME IN APRIL.

MR. BORNSTEIN: WE ANTICIPATE IT WILL BE IN APRIL,

YOUR HONOR. BUT THIS WAS A LATE BREAKING DEVELOPMENT THAT WAS

OUTSIDE OF ALL PARTIES'S CONTROL.

THE COURT: OKAY. THAT'S FINE. I'M HOPING YOU ARE

ABLE TO SCHEDULE IT IN THE FIRST HALF OF APRIL, IF AT ALL

POSSIBLE.

MR. BORNSTEIN: WE WILL WORK WITH ERICSSON'S COUNSEL

TO HAVE THEM DONE AS SOON AS WE CAN.

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AND ASIDE FROM THAT, THERE ARE JUST THE DEPOSITIONS THAT

HAVE BEEN IDENTIFIED IN THE CASE MANAGEMENT, THE SUPPLEMENTAL

CASE MANAGEMENT STATEMENT.

THE COURT: OKAY.

MR. BORNSTEIN: THE THIRD PARTIES, INCLUDING THE ONE

FROM APPLE WHO HAD BEEN SCHEDULED AND NEEDED TO BE RESCHEDULED

FOR PERSONAL REASONS.

THE COURT: ALL RIGHT. AND YOU DON'T HAVE A DATE FOR

MR. SEWELL.

MR. BORNSTEIN: WE DON'T HAVE A DATE FOR MR. SEWELL.

WE HAVE BEEN TOLD BY APPLE'S COUNSEL THAT WE CAN EXPECT ONE

SOON, BUT WE HAVEN'T RECEIVED IT YET.

THE COURT: OKAY. WELL, IF YOU HAVE TROUBLE GETTING

DATES FROM THEM, YOU LET ME KNOW.

MR. BORNSTEIN: THANK YOU, YOUR HONOR.

THE COURT: OKAY. SO LET'S TALK ABOUT -- I AM JUST

TRYING TO HOPEFULLY JUST BRING CLOSURE SINCE WE ARE RUNNING OUT

OF TIME, TO AS MANY OF THESE DISPUTES AS POSSIBLE.

TELL ME, WHAT IS THE ISSUE WITH THE 30(B)(6), THE NOTICE

IS TOO LATE, THE TOPICS ARE OVERBROAD, I THINK IS WHAT I READ

AS THE OBJECTION.

NONE OF THE TOPICS LOOKED OVERBROAD TO ME FROM LOOKING AT

WHAT'S CITED IN HERE. WHEN WAS IT SERVED? WHY IS IT TOO LATE?

MR. BORNSTEIN: YOUR HONOR, WE HAVE TWO DIFFERENT

30(B)(6) NOTICES. MAYBE WE CAN TAKE THEM SEPARATELY.

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THE COURT: OKAY.

MR. BORNSTEIN: THE FTC SERVED ITS 30(B)(6) NOTICE, I

BELIEVE ON FEBRUARY 28TH.

THE COURT: OKAY.

MR. BORNSTEIN: AND IT HAD 11 TOPICS. WE HAVE

RESOLVED MANY OF THEM.

WE PROVIDED WITNESSES TO TESTIFY AS TO THREE OF THEM,

PROVIDED A WITNESS TO TESTIFY AS TO PART OF A FOURTH, AND WE

ARE WORKING TO COOPERATIVELY RETROACTIVELY DESIGNATE TESTIMONY

OF A WITNESS AS 30(B)(6) TESTIMONY TO FINISH THAT FOURTH TOPIC.

THE COURT: OKAY.

MR. BORNSTEIN: THE FTC, AS PART OF OUR DISCUSSIONS,

WITHDREW TWO OF THE TOPICS, WHICH LEAVES US WITH FIVE TOPICS.

THIS MORNING WE RECEIVED A PROPOSAL FROM THE FTC ON HOW WE

MIGHT ADDRESS ONE OF THOSE FIVE IN AN ALTERNATE WAY, WHICH WE

WILL CONSIDER AND CONTINUE TO MEET AND CONFER WITH THEM ON.

AND THERE WERE FOUR OTHERS WHICH ARE ONES WHERE I THINK

WE'VE REACHED DISAGREEMENT. AND THAT'S THE STATUS OF THOSE.

WE HAVE NOT HEARD ONE WAY OR THE OTHER FROM THE FTC ON

WHERE THEY INTEND TO GO WITH THE FOUR THAT WE'VE DISCUSSED

WHERE WE DON'T HAVE ANY FURTHER PROPOSALS.

SO I THINK WE ARE WAITING TO HEAR FROM THEM ON THE MEET

AND CONFER PROCESS AS TO WHETHER THERE'S ANYTHING WE HAVE TO

DO.

THE COURT: WELL, I GUESS I'M UNCLEAR, THE FACT

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DISCOVERY IS CLOSING NEXT FRIDAY. SO -- TODAY IS MARCH 22ND,

DOESN'T FACT DISCOVERY CUTOFF CLOSE MARCH 30TH, IN A WEEK?

MR. BORNSTEIN: IT DOES. WE HAVE MADE OUR POSITION

CLEAR, WE DIDN'T THINK WE NEEDED TO AND DON'T BELIEVE WE NEED

TO PUT SOMEBODY UP ON THOSE FOUR OTHER TOPICS.

THE COURT: ALL RIGHT. I'M GOING TO DECIDE IT RIGHT

NOW. THAT 30(B)(6) WAS SERVED MARCH 28TH. SO I MEAN, THIS IS

WHAT I AM AFRAID IS HAPPENING. EVERYTHING IS JUST GETTING

BOGGED DOWN IN THESE DISPUTES.

LET ME SEE THE TOPICS, I'M GOING TO MAKE A DECISION RIGHT

NOW. GIVE ME THE TOPICS, PLEASE. DO YOU HAVE YOUR 30(B)(6)

NOTICES?

I'M NOT GOING TO HAVE THIS GRINDING ON GOING TO

JUDGE COUSINS IN A MONTH. I'M DOING IT RIGHT NOW. FACT

DISCOVERY CLOSES NEXT FRIDAY. TODAY IS THURSDAY, MARCH 22ND,

LET'S GET THIS DONE.

GIVE ME BOTH THE PLAINTIFF'S MDL 30(B)(6) NOTICE AND THE

FTC NOTICE, PLEASE. WE ARE GOING TO RESOLVE THIS TODAY.

YOU'VE HAD A MONTH TO MEET AND CONFER. IT'S TIME TO COME

TO DECISIONS AND GET THIS FACT DISCOVERY DONE. GIVE ME BOTH

NOTICES, PLEASE.

MR. VAN NEST: DO YOU WANT THEM HANDED UP,

YOUR HONOR?

THE COURT: YES, PLEASE.

MR. VAN NEST: I'VE GOT ONE THAT'S HIGHLIGHTED. I

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APOLOGIZE, BUT THIS IS THE -- MR. BORNSTEIN HAS BEEN SPEAKING

ABOUT THE FTC NOTICE.

THE COURT: I UNDERSTAND. AND THEN THERE'S ALSO --

WHEN WAS THE MDL PLAINTIFF'S NOTICE SERVED.

MS. BONN: MARCH 1ST --

MR. VAN NEST: MARCH 2ND. AND THEN WE GOT, WE MET

AND CONFERRED AND THEY SENT US ANOTHER ONE TUESDAY NIGHT ABOUT

9:30.

THE COURT: ON MARCH 20TH.

MR. VAN NEST: ON MARCH 20TH, YEAH. AND I HAVE THE

MARCH 20TH ONE THAT I CAN HAND UP.

THE COURT: AND HOW MANY TOPICS DID THEY HAVE ON

MARCH 2ND.

MR. VAN NEST: THEY HAD ABOUT 30. THAT'S NOT A

PRECISE NUMBER, YOUR HONOR, BUT SOMETHING LIKE THAT.

NOW THEY HAVE 11, BUT THE 12TH TOPIC IS ALL TOPICS NOTICED

IN THE FTC NOTICE. SO IT'S WHATEVER THEY HAVE THEIR OWN 11 AND

THE 12TH IS EVERYTHING IN THE FTC NOTICE.

THE COURT: OKAY. ALL RIGHT. I DON'T WANT TO LOOK

AT YOUR HIGHLIGHTS, JUST IN CASE, I DON'T WANT TO SEE YOUR WORK

PRODUCT.

YOU HAVE A CLEAN -- CAN I JUST RECESS THIS CASE AND YOU

ALL CAN HAND ME UP CLEAN COPIES, AND THEN I CAN TAKE CARE OF MY

JURY NOTE.

THE CLERK: YOUR HONOR, THEY CAN ALSO E-MAIL ME A

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COPY IF THAT'S EASIER, AND I CAN PRINT IT.

THE COURT: WHY DON'T YOU DO THAT.

I WOULD PREFER NOT TO HAVE ANYONE'S HIGHLIGHTS OR COMMENTS

AND NOTATIONS.

ALL RIGHT. IF WE CAN RECESS THIS CASE MOMENTARILY,

PLEASE.

(A RECESS WAS TAKEN AT 2:35 P.M.)

THE CLERK: RECALLING CASE 17-CV-00220, FEDERAL TRADE

COMMISSION VERSUS QUALCOMM INCORPORATED, AND THE RELATED MATTER

17-MD-02773, IN RE QUALCOMM ANTITRUST LITIGATION.

COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES.

MS. BONN: GOOD AFTERNOON.

AMANDA BONN FOR MDL PLAINTIFF. AND WITH ME IS RIO PIERCE

FOR MDL PLAINTIFFS AS WELL.

THE COURT: OKAY. HIS NAME IS --

MR. PIERCE: RIO PIERCE WITH HAGENS BERMAN.

THE COURT: OKAY. HAVE YOU FILED A NOTICE OF

APPEARANCE?

MR. PIERCE: YES, YOUR HONOR.

THE COURT: IS HE ON THE DOCKET?

MS. BONN: YES, YOUR HONOR.

THE COURT: OKAY. ALL RIGHT. WHO ELSE IS --

MR. VAN NEST: YOUR HONOR, BOB VAN NEST AND JUSTINA

SESSIONS FROM KEKER, VAN NEST, PETERS FOR QUALCOMM.

MR. BORNSTEIN: AND GARY BORNSTEIN FROM CRAVATH, ALSO

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FOR QUALCOMM.

THE COURT: ALL RIGHT. WELL, WELCOME BACK AND GOOD

AFTERNOON.

ALL RIGHT. LET ME GO THROUGH, WE ARE GOING TO TAKE A

BREAK, BUT I WOULD LIKE TO FIND OUT, LET'S I GUESS FIRST GO

THROUGH, I HAVE THE FTC'S DEPOSITION NOTICE, IT IS DATED

FEBRUARY 28TH, 2018, AND I SEE THAT THERE ARE 11 TOPICS.

CAN YOU LET ME KNOW WHICH ARE THE TWO THAT THE FTC HAS

WITHDRAWN? OH, WAIT, ARE THE FOLKS STILL ON THE PHONE FROM THE

FTC? MS. GILLEN?

MS. GILLEN: YES. ELIZABETH GILLEN FOR THE FTC.

MR. BAKER: AND JOE BAKER AS WELL.

THE COURT: OKAY. ALL RIGHT.

SO WHICH TOPICS DID YOU WITHDRAW?

MS. GILLEN: THE FTC WITHDREW TOPICS NUMBER 1 AND 9.

THE COURT: NUMBER 1 AND 9. OKAY. SO THOSE ARE OFF.

AND WHICH ARE THE THREE THAT YOU HAVE AGREED TO?

MR. BORNSTEIN: WE PROVIDED FOUR, YOUR HONOR

YOUR HONOR, NUMBERS 2, 3, 4 AND 5.

THE COURT: OKAY. DOES THE FTC AGREE WITH THAT?

MS. GILLEN: YES, THE FTC AGREES.

THE COURT: OKAY. SO WITNESSES HAVE ALREADY BEEN

DEPOSED ON TOPICS 2, 3, 4 AND 5, CORRECT?

MR. BORNSTEIN: CORRECT, YOUR HONOR.

THE COURT: OKAY. THANK YOU.

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ALL RIGHT. AND THEN I THOUGHT THERE WAS ONE WHERE YOU

ONLY AGREED TO PART OF IT.

MR. BORNSTEIN: WELL, THAT WAS NUMBER 2, YOUR HONOR,

WHERE WE PROVIDED A WITNESS TO TESTIFY AS TO A PORTION WITHIN

HIS KNOWLEDGE, AND THEN WE ARE RETROACTIVELY DESIGNATING

TESTIMONY FROM A DIFFERENT WITNESS FOR PORTIONS THAT WAS WITHIN

THAT INDIVIDUAL'S KNOWLEDGE. SO BETWEEN THE TWO WITNESSES,

NUMBER 2 IS COVERED.

THE COURT: ALL RIGHT. DOES THE FTC AGREE WITH THAT?

MS. GILLEN: YES, THE FTC AGREES.

THE COURT: OKAY. ALL RIGHT.

SO THEN THERE'S ONE THAT THE FTC HAS AN ALTERNATIVE

PROPOSAL THAT QUALCOMM IS STILL CONSIDERING, WHICH ONE IS THAT?

MR. BORNSTEIN: THAT'S NUMBER 11, YOUR HONOR. WE

RECEIVED THAT PROPOSAL THIS MORNING.

THE COURT: OKAY.

MS. GILLEN: YOUR HONOR, JUST FOR MORE CLARITY, TOPIC

NUMBER 11 RELATES TO QUALCOMM'S SALES AND ROYALTY REVENUE DATA.

AND THE PROPOSAL THE FTC RAISED THIS MORNING, RAISED A

SUGGESTION OF HAVING OUR RESPECTIVE EXPERT TEAMS PARTICIPATE IN

A GROUP TO BETTER UNDERSTAND THE DATA.

IF WE ARE ABLE TO ARRANGE FOR THIS PROCESS TO OCCUR

THROUGH MORE INFORMAL MEANS, WE CAN WORK HARD TO MINIMIZE THE

NEED AND BURDEN FOR ADDITIONAL DEPOSITIONS HERE.

THE COURT: OKAY. AND YOU ARE SAYING THAT FTC'S

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EXPERTS WILL TALK TO QUALCOMM'S EXPERTS OR QUALCOMM'S

EMPLOYEES? I WAS NOT CLEAR ON WHAT THE PROPOSAL IS, EXACTLY.

MS. GILLEN: OUR PROPOSAL WOULD BE FOR FOLKS FROM OUR

EXPERTS TO GET ON THE PHONE WITH THE INDIVIDUALS FROM THE

QUALCOMM SIDE. I'M NOT SURE YET WHETHER THOSE WOULD BE

EMPLOYEES AT QUALCOMM OR OTHERS WORKING ON QUALCOMM'S BEHALF.

I THINK MR. BORNSTEIN MAY BE ABLE TO ANSWER THAT.

MR. BORNSTEIN: SO YOUR HONOR, WE RECEIVED IT THIS

MORNING. I DON'T KNOW EXACTLY WHO THE RIGHT PEOPLE WOULD BE TO

ANSWER THESE QUESTIONS. IT WOULD PROBABLY BE PEOPLE EMPLOYED

BY THE COMPANY.

BUT WHAT WE ARE CONSIDERING, WHICH WAS SOMETHING THAT

COUNSEL FOR THE FTC RAISED IN THEIR PROPOSAL, IS WHETHER IT

WOULD BE EASIER TO ADDRESS THESE IN WRITING RATHER THAN BY

HAVING PEOPLE ON THE PHONE. AND THAT'S SOMETHING WE WERE GOING

TO TAKE A LOOK AT AFTER WE DISCUSS WITH THE PEOPLE ABOUT

KNOWLEDGE OF THESE ISSUES.

THE COURT: OKAY.

ALL RIGHT. SO FTC BASICALLY JUST WANTS TO UNDERSTAND HOW

THIS DATA WAS GENERATED OR COLLECTED, PRESENTED.

MS. GILLEN: YES, THAT'S RIGHT.

THE COURT: OKAY. ALL RIGHT.

WELL, IT SOUNDS LIKE 11, YOU MAY BE ABLE TO WORK SOMETHING

OUT, SHORT OF A DEPOSITION. I CAN SEE AN INTERROGATORY BEING

PROBLEMATIC THOUGH. AND THAT EVEN IF YOU DO SOMETHING IN

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WRITING BE INITIALLY, THERE MAY NEED TO BE JUST A FOLLOW-UP

DISCUSSION JUST TO UNDERSTAND.

MR. BORNSTEIN: AS BACKGROUND, YOUR HONOR, WE HAVE

HAD EXTENSIVE CORRESPONDENCE ON THESE ISSUES GOING BACK TO,

FRANKLY, TO THE INVESTIGATION BEFORE THE COMPLAINT WAS FILED.

BUT ALSO DURING THE LITIGATION, WE HAVE EXCHANGED A NUMBER OF

LETTERS BACK AND FORTH AND PROVIDED A WEALTH OF INFORMATION ON

THESE SUBJECTS.

THE MAIL THAT WE RECEIVED THIS MORNING FROM THE FTC HAS

WHAT LOOKED TO ME LIKE FOLLOW-UP QUESTIONS, NOT INITIAL

FOUNDATIONAL QUESTIONS, BUT A NUMBER OF MORE FOCUSED ISSUES

ABOUT, EXPLAIN THIS PARTICULAR FIELD AND WHY IT LOOKS THIS WAY

IN CERTAIN REPORTS AND THAT SORT OF THING.

SO I THINK IT'S MORE TARGETED AND WE SHOULD BE ABLE TO

ADDRESS IT WITH SOME WRITTEN ANSWERS, BUT I NEED TO TALK TO

PEOPLE WHO UNDERSTAND THE DATA BETTER THAN I DO BEFORE I CAN BE

DEFINITIVE ABOUT THAT.

THE COURT: SURE. BUT THAT TOPIC, I'M ACTUALLY

FAIRLY CONFIDENT, IT SOUNDS LIKE YOU WILL BE ABLE TO WORK IT

OUT.

MR. BORNSTEIN: I'M HOPEFUL WE CAN, YOUR HONOR.

THE COURT: ALL RIGHT. OKAY. SO THEN THE ONLY OTHER

ONES ARE THE FOUR REMAINING WHICH ARE 6, 7, 8, AND 10, CORRECT?

MR. BORNSTEIN: THAT'S CORRECT.

THE COURT: OKAY. ALL RIGHT. THEN LET'S GO TO THE

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MDL ONE.

DO YOU HAVE ANY AGREEMENT ON ANY OF THESE TOPICS OR NOT?

MS. BONN: WE DON'T BELIEVE SO, YOUR HONOR.

MR. VAN NEST: I DON'T BELIEVE WE DO, YOUR HONOR.

WE HAVE BEGUN DISCUSSING WHETHER -- WE JUST GOT THIS

VERSION LATE TUESDAY NIGHT. AND WE HAVE BEGUN DISCUSSING

WHETHER THERE'S CERTAIN AREAS, AND WE'VE ASKED THAT THE

PLAINTIFFS WHO HAVE TAKEN, AS YOU KNOW, A LOT OF DEPOSITIONS,

WHETHER THERE'S SOME AREAS WHERE WE CAN DESIGNATE TESTIMONY

THAT'S ALREADY BEEN TAKEN.

WE HAVE OBJECTIONS TO THE OVERBREADTH OF SOME OF THESE,

NOT ALL OF THEM, BUT SOME OF THESE ARE VERY OVERBROAD. BUT A

LOT OF THEM ARE AREAS WHERE THEY'VE HAD MULTIPLE PEOPLE FROM

THE COMPANY ALREADY TESTIFY.

AND SO I THINK THE TESTIMONY COULD BE DESIGNATED AND

DEEMED 30(B)(6) IN SOME CASES, BUT IT DOESN'T SEEM FAIR TO WAIT

UNTIL YOU'VE DEPOSED EVERYBODY AND THEN SEND THE 30(B)(6) WITH

THE TOPICS THAT YOU WANT. THAT'S KIND OF WHAT'S HAPPENED HERE.

SO THERE'S A COUPLE OF THESE THAT I DON'T THINK ARE THAT

CONTROVERSIAL.

NUMBER ONE, I THINK "CUSTOMER'S SEGMENT SCHEME," I THINK

WE COULD PROVIDE, DESIGNATE SOME TESTIMONY FOR.

NUMBER THREE, "SOURCES OF PUBLICLY AVAILABLE DATA," I'M

NOT SURE WHY WE KNOW THAT ANY BETTER THAN THEY DO. BUT WE

COULD CERTAINLY POINT THEM TO THE PUBLICLY AVAILABLE DATA THAT

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WE USE. I DON'T THINK THAT'S CONTROVERSIAL.

BUT THE REST OF THESE, I MEAN, FOR EXAMPLE, NUMBER TWO,

"COMPETITIVE CONDITIONS IN THE MARKETS FOR BASEBAND PROCESSORS,

INCLUDING COMPETITORS, POTENTIAL COMPETITORS, MARKET

CONDITIONS, MARKET SHARES, PROFITABILITY, AVAILABILITY OF

SUPPLY, SUPPLY AND DEMAND, BUSINESS PLANS, FORECASTS."

THEY HAVE ALREADY DEPOSED THE HEAD OF OUR CHIP BUSINESS,

THE PERSON THAT DOES OUR ROADMAPS FOR THE CHIP BUSINESS. THEY

HAVE DEPOSED A LOT OF THIRD PARTIES WHO WERE IN THE CHIP

BUSINESS WITH US. IF THEY WANTED SOMETHING LIKE THIS, IT

SHOULD HAVE BEEN ISSUED AT THE VERY BEGINNING OF THE CASE, NOT

AFTER WE'VE PUT UP ALL OUR CHIP BUSINESS PEOPLE.

I'M NOT EVEN SURE WHAT THEY REALLY WANT HERE OTHER THAN

THEY'VE ASKED OUR PEOPLE WHO THEY COMPETE WITH AND WHO'S BEEN

IN THE MARKET, AND THEY HAVE GOTTEN OUR FORECAST AND OUR

STRATEGIC PLANS AS PART OF THE PRODUCTIONS.

THIS IS OVERBROAD. I WOULDN'T KNOW WHERE TO START, EXCEPT

THAT WE HAVE ALREADY PUT UP PEOPLE THAT RUN THAT BUSINESS AND

THE FOLKS THAT PLAN THAT BUSINESS AND THE FOLKS THAT FORECAST

IT.

THE COURT: COULD YOU DESIGNATE THEIR TESTIMONY?

MR. VAN NEST: SURE. WE COULD CERTAINLY TRY.

ABSOLUTELY. I THINK THAT WOULD BE THE BEST WE COULD DO.

AND I WOULD PROBABLY HAVE TO DESIGNATE, I GUESS I CAN'T

DESIGNATE THIRD PARTIES, BUT A NUMBER OF THIRD PARTIES HAVE

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TESTIFIED TOO. BUT WE COULD DESIGNATE.

THE COURT: WELL, BUT IT NEEDS TO BE A CORPORATE

REPRESENTATIVE OF QUALCOMM.

MR. VAN NEST: YES, BUT THIS IS SO BROAD, I'M NOT

SURE HOW SUCCESSFUL THAT WOULD BE.

IF THEY COULD BE MORE SPECIFIC ABOUT WHAT THEY DON'T HAVE,

WHAT WE'VE SAID IS, YOU'VE HAD ALL THE PEOPLE, YOU'VE DEPOSED

THE CHIP BUSINESS FOLKS, WHAT IS IT THAT YOU ARE LACKING. TELL

US.

THE COURT: WELL, I THINK THEY NEED SOMEBODY SPEAKING

FOR THE CORPORATION.

MR. VAN NEST: WELL, THESE PEOPLE ARE ALL SPEAKING

FOR THE COMPANY, THE PEOPLE THEY HAVE DEPOSED.

THE COURT: WELL, WOULD YOU HAVE ANY OBJECTION TO

JUST HAVING QUALCOMM DESIGNATE THE TESTIMONY THAT'S PREVIOUSLY

BEEN TAKEN? WHY DO YOU NEED A NEW WITNESS?

MS. BONN: SO WE MAY NOT.

I THINK IF WE ARE GOING TO GO THE DESIGNATION ROUTE, WHAT

PROBABLY MAKES SENSE IS FOR US TO ISSUE KIND OF SPECIFIC

QUESTIONS THAT WE WOULD HAVE INTENDED TO ASK AT THIS

DEPOSITION, THAT WE WANT A COMPANY WITNESS TO TESTIFY ABOUT.

AND TO THE EXTENT THAT THEY BELIEVE THEY CAN ANSWER THOSE

QUESTIONS USING PREVIOUSLY SWORN TESTIMONY, WE HAVE NO

OBJECTION TO THAT.

MR. VAN NEST: AS LONG AS THAT'S NOT A REDO OF THE

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DEPOSITIONS, AND AS LONG AS IT'S NARROW AND TAILORED,

YOUR HONOR, I THINK THAT'S APPROPRIATE.

BUT IT CAN'T BE, HERE'S THE 50 DEPOSITION QUESTIONS WE

MEANT TO ASK WHEN WE HAD THE HEAD OF YOUR CHIP BUSINESS THERE,

AND I WANT TO ASK THEM.

BUT IF THEY ARE NARROW AND TAILORED, CERTAINLY.

THE COURT: WHAT ABOUT NUMBER FOUR?

MR. VAN NEST: THAT'S ANOTHER ONE, THE EXTENT AND

VALUE OF QUALCOMM'S AND OTHER SEP HOLDERS. CEMA, GSM, UMTS

PORTFOLIOS.

I MEAN, THAT IS VASTLY BROAD. THEY HAVE ALREADY DEPOSED

THE HEAD OF QTL, THAT'S OUR LICENSING DIVISION. THEY HAVE

DEPOSED LAWYERS WITHIN QTL. THEY DEPOSED THE PEOPLE THAT

NEGOTIATE PORTFOLIO LICENSES. THE EXTENT AND VALUE, THERE'S

BEEN LITIGATION IN FRONT OF JUDGE COUSINS ABOUT WHAT'S

PRIVILEGED AND WHAT ISN'T WITHIN THE VALUATION. MUCH WAS DONE,

SOME OF IT IS DONE BY --

THE COURT: SO YOU ARE BASICALLY SAYING THEY DON'T

GET A 30(B)(6), THEY ARE STUCK WITH WHATEVER THEY HAVE GOTTEN

SO FAR? BECAUSE THAT'S NOT SATISFACTORY TO ME EITHER.

MR. VAN NEST: IF THEY HAD DONE THIS AT THE

BEGINNING, WE WOULDN'T BE IN THIS BOAT.

WE HAVE ALREADY PRODUCED ALL OF THE PEOPLE THAT KNOW ABOUT

THAT, AND THEY HAVE THIS A FULL CHANCE TO DEPOSE THEM. I'M NOT

SAYING THEY DON'T GET A 30(B)(6), I'M SAYING ON SOMETHING LIKE

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THIS, YOU'VE GOT TO BE MORE FOCUSED.

I WOULD CERTAINLY BE WILLING TO DESIGNATE WHAT TESTIMONY

WE HAVE. I THINK THAT'S A REASONABLE SOLUTION. IF THEY CAN BE

SPECIFIC ABOUT WHAT IT IS. BUT THIS TOPIC IS SO BROAD, I'M NOT

SURE WHERE I WOULD START.

MS. BONN: THE PROBLEM THAT WE HAVE HAD ON THIS

TOPIC, YOUR HONOR, IS THAT NUMBER ONE, THIS IS CRITICAL

INFORMATION FOR OUR LICENSING EXPERT.

NUMBER TWO, WE HAVE HEARD A COMMON REFRAIN THROUGHOUT THE

COURSE OF VARIOUS FACT WITNESS DEPOSITIONS WE HAVE TAKEN,

INCLUDING ONES WHO WERE DISCLOSED AS HAVING KNOWLEDGE ABOUT

PATENTS OR THEIR STANDARD CENTRAL ACTIVITIES, THAT EITHER

NUMBER ONE, I DON'T KNOW ANYTHING ABOUT PATENTS, YOU WOULD HAVE

TO ASK SOMEBODY ELSE; OR NUMBER TWO, I JUST DON'T KNOW SITTING

HERE; OR NUMBER THREE, YOU KNOW, I THINK THAT BECAUSE I TALKED

TO AN ATTORNEY ABOUT THE PATENTS, IT'S PRIVILEGED.

AND SO WE HAVE SERVED WHAT WE THINK IS A TARGETED TOPIC

THAT GOES DIRECTLY TO THE CORE LICENSING ISSUES IN THIS CASE

AND THE ESTABLISHMENT OF WHAT A FRAND RATE FOR QUALCOMM'S

PATENTS SHOULD BE. AND WE DON'T THINK IT'S SATISFACTORY ON

THIS ONE TO SIMPLY SAY THEY CAN DESIGNATE PAST TESTIMONY,

BECAUSE IN OUR EXPERIENCE, THE PAST TESTIMONY HAS NOT BEEN

USEFUL ON THIS TOPIC

THE COURT: 4 OR 5? WHAT ARE YOU REFERRING TO, 4 OR

5 OR BOTH?

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MS. BONN: BOTH. 4 THROUGH 7.

MR. VAN NEST: WELL, YOUR HONOR, LET'S TAKE A LOOK AT

THOSE. TAKE A LOOK AT 6.

QUALCOMM'S AGREEMENTS WITH LICENSEES. THERE ARE HUNDREDS

OF THOSE, INCLUDING THE RIGHTS AND COMPENSATION GRANTED UNDER

EACH OF THEM.

THEY HAVE TAKEN THE HEAD OF OUR LICENSING BUSINESS, THEY

HAVE TAKEN THE PERSON THAT NEGOTIATED MANY OF THE AGREEMENTS,

THEY HAVE TAKEN THE FORMER HEAD OF OUR LICENSING BUSINESS, THEY

HAVE TAKEN ALL OF OUR LICENSING PEOPLE. THEY WANT A 30(B)(6)

ON ALL 300 OR 400 AGREEMENTS OVER TIME? THAT'S RIDICULOUS.

THE SAME IS TRUE OF 7. THEY WANT NEGOTIATIONS WITH ALL

LICENSEES. THERE ARE A HUNDREDS OF LICENSEES. AND AGAIN, THE

PEOPLE THAT NEGOTIATED OUR LICENSES SAT FOR DEPOSITIONS.

THEY HAVEN'T MOVED TO COMPEL, YOUR HONOR, FURTHER

TESTIMONY FROM ANY OF THESE PEOPLE. THERE HAVE BEEN NO MOTIONS

TO COMPEL FROM ANY OF OUR QTL PEOPLE.

NUMBER 6 AND 7, YOU CAN'T SEND A 30(B)(6) FOR INFORMATION

ABOUT HUNDREDS OF AGREEMENTS. YOU CAN DEPOSE THE PEOPLE THAT

NEGOTIATED THEM, AND YOU COULD DEPOSE THE PEOPLE THAT RUN THE

DIVISION, AND THEY HAVE ALREADY DONE ALL OF THAT.

I WOULD BE PERFECTLY WILLING AGAIN TO TRY TO DESIGNATE

WHAT TESTIMONY WAS GIVEN BECAUSE WE DIDN'T GIVE TESTIMONY ABOUT

VARIOUS OF THE AGREEMENTS. ANY AGREEMENT THEY ASKED ABOUT, WE

HAVE TESTIFIED ABOUT.

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AND SO WITH RESPECT TO 4, 5, 6 AND 7, THESE ARE ALL VASTLY

OVERBROAD. AND AGAIN, IF THEY WANT TO BE SPECIFIC ABOUT

AGREEMENTS, THEY DIDN'T ASK ABOUT, OR PARTICULAR FACTS ABOUT

AGREEMENTS THEY DID ASK ABOUT, FINE. GIVE US A TAILORED

REQUEST AND WE WILL EITHER DESIGNATE TESTIMONY, OR IF WE

HAVEN'T DONE IT, WE WILL PUT SOMEONE UP TO ANSWER IT.

BUT I MEAN, TO THROW THIS OUT WITHIN THREE WEEKS OF THE

CLOSE OF DISCOVERY, IS COMPLETELY UNFAIR. AND AGAIN, THEY HAVE

SHOULD DONE THIS AT THE VERY BEGINNING. THEY'VE HAD ALL THESE

WITNESSES.

THE COURT: OKAY. THIS IS WHAT I'M GOING TO DO, WITH

THE FTC NOTICE, I'M GOING TO ORDER A 30(B)(6) WITNESS BE

PROVIDED FOR TOPICS 6, 7, 8 AND 10.

MR. BORNSTEIN: YOUR HONOR, MAY I BE HEARD ON THAT?

THE COURT: THOSE SEEM FAIR TO ME.

MR. BORNSTEIN: MAY I BE HEARD ON THAT, YOUR HONOR,

BECAUSE I HAVEN'T HAD THE OPPORTUNITY TO ADDRESS THESE.

THESE ARE -- THERE ARE TWO PROBLEMS WITH THESE, THREE,

ACTUALLY.

NUMBER ONE IS THE BREADTH. NUMBER TWO IS THE TIMING. AND

NUMBER THREE IS THE LARGE NUMBER OF PEOPLE WHO HAVE ALREADY

BEEN DEPOSED ON THESE SUBJECTS.

JUST TO TAKE NUMBER 6 AS AN EXAMPLE, THEY ARE ASKING FOR

THE EXTENT AND VALUE OF QUALCOMM'S PATENT PORTFOLIO, PERIOD.

THAT WOULD REQUIRE, WE ARE TALKING ABOUT TENS OF THOUSANDS OVER

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100,000 PATENTS. WE HAVE HAD PEOPLE FROM THE IP DEPARTMENT AT

QUALCOMM, THE HEAD OF THE IP DEPARTMENT AND OTHERS TESTIFY

ABOUT THE PATENT PORTFOLIO. AND WE HAVE HAD THE LICENSING

PEOPLE WHO ARE RESPONSIBLE FOR THE NEGOTIATING OF THE

CONTRACTS, SET THE VALUE FOR THESE PATENTS, TESTIFY.

WE'VE HAD, BY MY COUNT, SEVEN VERY SENIOR CURRENT OR

FORMER EMPLOYEES IN THE LICENSING DIVISION RESPONSIBLE FOR

NEGOTIATING THESE CONTRACTS ALREADY TESTIFY.

HAD WE BEEN GIVEN A NOTICE ABOUT THE EXTENT AND VALUE OF A

HUNDRED THOUSAND PATENT PORTFOLIO 30(B)(6) REQUESTS EARLY IN

THE DISCOVERY PROCESS, WE COULD HAVE WORKED TO TRY TO FIGURE

OUT AT LEAST HOW WE COULD RESPOND TO SOME OF THIS. BUT I

WOULDN'T KNOW HOW TO BEGIN TO FIND A PERSON WHO CAN SPEAK TO

THE FULL EXTENT AND THE FULL VALUE OF THE COMPANY'S PATENT

PORTFOLIO IN A 30(B)(6) CAPACITY, ESPECIALLY AT THIS POINT IN

TIME. WE ARE REALLY HAVING A REDO.

THE COURT: I GUESS I DON'T REALLY UNDERSTAND THE

TIMELINESS ISSUE. THIS WAS SERVED ON FEBRUARY 28TH. IT'S

TIMELY. YOU ARE SAYING YOU SHOULD HAVE, AND YOU WOULD HAVE PUT

UP A 30(B)(6) BEFORE ANY OTHER WITNESS WAS DEPOSED?

MR. BORNSTEIN: WHAT I'M SAYING, YOUR HONOR, IS IF

YOU ARE SERVING A 30(B)(6) WITNESS ON THE LAST DAY OF THE

30-DAY PERIOD AT THE END OF DISCOVERY, IT OUGHT TO BE A

TARGETED 30(B)(6) NOTICE.

PEOPLE WHO SERVE 30(B)(6) NOTICES THAT ARE THIS BROAD

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TYPICALLY SERVE THEM AT THE BEGINNING AND WE WORK TO GET THEM

RESOLVED. THERE'S NO REASON IF THIS WAS SOMETHING THE FTC WAS

INTERESTED IN, IT'S CERTAINLY NOT A SURPRISE THIS WAS SUBJECT

OF A DISCUSSION. THERE'S NO REASON -- IF IT WAS SOMETHING THEY

WERE INTERESTED IN, THEY COULD HAVE SERVED THIS NOTICE A LONG

TIME AGO.

THE COURT: I DON'T SEE -- WHY IS THERE A PROBLEM?

"ALL MEASURES, METRICS AND THIRD-PARTY STUDIES RELIED ON

BY QUALCOMM TO DETERMINE THE QUALITY OR VALUE OF ITS CELLULAR

PATENT PORTFOLIO."

WHY IS THAT SOMETHING -- IF ANYTHING, YOU SHOULD NOW BE

ABLE TO PREP SOMEONE MORE EASILY BECAUSE YOU ARE SAYING YOU

ALREADY HAVE TESTIMONY ON EVERYTHING.

MR. BORNSTEIN: YOUR HONOR, TO HAVE A PERSON TESTIFY

ABOUT THE EXTENT AND VALUE OF THE PORTFOLIO, THE WAY THAT IT'S

MEASURED, NUMBER 7 FOR EXAMPLE GETS INTO WHERE PARTICULAR

PATENTS ARE SUBSTANTIALLY EMBODIED, WHICH AS YOUR HONOR KNOWS

IS AN INCREDIBLY COMPLEX ISSUE. WE CERTAINLY CAN'T DO THAT FOR

HUNDREDS OF THOUSANDS OF PATENTS. THIS IS A VERY, VERY

BURDENSOME TASK.

THE COURT: YOU ARE CHANGING THE QUESTION. I SAID 8.

WHAT IS YOUR OBJECTION TO 8?

MR. BORNSTEIN: NUMBER 8 FOCUSES ON THE MEASURES AND

METRICS RELIED ON TO DETERMINE THE VALUE OF THE PATENT

PORTFOLIO OR OTHER PATENT HOLDERS, RIGHT, AND EVERYTHING CITED

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OR RELIED ON BY QUALCOMM IN ITS COMMUNICATIONS.

THAT WOULD REQUIRE US TO GO THROUGH AND IDENTIFY AND

FIGURE OUT WHICH EACH OF THESE METRICS ARE, WHICH THE MEASURES

ARE, WE ARE TALKING ABOUT COMMUNICATIONS OVER A VERY LONG

PERIOD OF TIME BY QUALCOMM TO LICENSEES IN PRIVATE

COMMUNICATIONS, TO CUSTOMERS IN PRIVATE COMMUNICATIONS, AND

THEN INVESTORS IN OTHER PUBLIC COMMUNICATIONS OVER THE COURSE

OF DECADES.

SO TO GO THROUGH AND TRY AND HAVE SOMEONE BE EDUCATED AND

PREPPED TO TALK ABOUT EACH AND EVERY STUDY, EACH AND EVERY

FORWARD CITATION ANALYSIS, EACH AND EVERY STANDARD, IS A

MAMMOTH TASK.

MS. GILLEN: YOUR HONOR, MAY I RESPOND?

THE COURT: YES.

AND IF YOU ARE GETTING 3.8 MILLION PAGES OF DOCUMENTS NOW,

I THINK IT'S NOT FAIR TO THEN SAY WELL, I'M ONLY GOING TO GIVE

YOU TESTIMONY ON WHAT YOU SPECIFICALLY IDENTIFIED BY REPORT BY

DATE. I THINK THAT'S UNREASONABLE.

I THINK WHAT YOU ARE DOING IS NOT REASONABLE. YOU ARE

DOING THIS HUGE DOCUMENT DUMP THE AT END OF THE CASE AND THEN

SAYING UNLESS I GIVE ME BY THIRD PARTY, BY DOCUMENT, BY DATE,

I'M NOT GOING TO GIVE YOU 30(B)(6) DEPOSITION TESTIMONY. I

JUST THINK THAT'S UNFAIR.

MR. BORNSTEIN: YOUR HONOR, I HAVE TO OBJECT ONE MORE

TIME.

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WE ARE NOT DOING A DOCUMENT DUMP AT THE END OF THE CASE.

I REALLY STRENUOUSLY OBJECT TO THAT CHARACTERIZATION. WE

FINISHED OUR DOCUMENT PRODUCTION IN NOVEMBER AS WE WERE ORDERED

TO DO, AND WE COMPLIED, WE NEVER HAD A WIT OF COMPLAINT ABOUT

THAT, YOUR HONOR.

THE COURT: OH, COME ON, THE PRIVILEGE DOCUMENT, 67

PERCENT BEING OVERLY WITHHELD AS PRIVILEGED?

MR. BORNSTEIN: YOUR HONOR, I UNDERSTAND THE

PRIVILEGE ISSUE.

THE COURT: OKAY. THAT IS DEEPLY DISTURBING TO ME.

SO YOU ARE SAYING "WE PRODUCED EVERYTHING," I HAVE SERIOUS

CONCERNS ABOUT IT BASED ON THE OVER-DESIGNATION AND

OVER-WITHHOLDING OF ALLEGEDLY PRIVILEGED DOCUMENTS.

BUT LET ME HEAR FROM THE FTC. WHAT'S YOUR ANSWER ON 6, 7,

8 AND 10?

MS. GILLEN: YOUR HONOR, THE COMMON THREAD THROUGH

TOPICS 6, 7, 8 AND 10 IS THAT THESE TOPICS ALL RELATE TO PATENT

VALUATION ISSUES. AND QUALCOMM'S ASSESSMENTS OF THE VALUE OF

THIS PATENT PORTFOLIO IS IT'S CLEARLY AN IMPORTANT PART OF THIS

CASE AND WILL BE A KEY FACT IN ASSESSING WHETHER QUALCOMM'S

ROYALTIES ARE REASONABLE.

THE FTC HAS TRIED TO PURSUE THESE TOPICS WITH A NUMBER OF

DIFFERENT FACT WITNESSES SINCE THE BEGINNING OF THE DEPOSITION

PHASE OF THIS CASE, AND QUALCOMM HAS CONTINUALLY CLAIMED

PRIVILEGE OVER THIS INFORMATION AND INSTRUCTED ITS WITNESSES

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NOT TO ANSWER QUESTIONS ON THESE TOPICS.

SO TO THE EXTENT QUALCOMM CLAIMS THAT THE FTC WAITED TOO

LONG TO SERVE THESE 30(B)(6) TOPICS, IT'S SIMPLY BECAUSE WE

ANTICIPATED OBTAINING TESTIMONY FROM FACT WITNESSES WHO DID NOT

KNOW THEY WERE ALL GOING TO REFUSE TO ANSWER QUESTIONS ON THESE

TOPICS.

MR. BORNSTEIN: YOUR HONOR, THAT'S JUST NOT CORRECT.

WE HAVE NOT INSTRUCTED A SINGLE PERSON ON PRIVILEGE WITH

RESPECT TO ISSUES OF VALUE. WE HAVE INSTRUCTED PEOPLE NOT TO

TESTIFY ABOUT THE ANALYSIS OF SPECIFIC PATENTS, BUT WHEN PEOPLE

HAVE BEEN ASKED ABOUT THE VALUE OF THE PORTFOLIO, THEY HAVE

NEVER BEEN INSTRUCTED NOT TO TESTIFY. THAT'S SIMPLY NOT THE

CASE.

WE HAVE HAD PERSON AFTER PERSON TESTIFY ABOUT THE VALUE OF

THE PATENTS THAT ARE LICENSED TO THIRD PARTIES BASED ON THEIR

NEGOTIATIONS, AND BASED ON THEIR EXPERIENCE AS LICENSES AND

PROFESSIONALS. AGAIN, AND AGAIN, AND AGAIN WE HAVE HAD

TESTIMONY ON THAT. THERE'S SIMPLY BEEN NO INSTRUCTION ON

VALUE, ON A PRIVILEGE BASIS.

THE COURT: DO YOU HAVE A RESPONSE TO THAT?

MS. GILLEN: THE FTC DISAGREES WITH THE

CHARACTERIZATION OF THE TESTIMONY THAT'S BEEN GIVEN. I DON'T

HAVE THE TRANSCRIPTS OF ALL THOSE WITNESSES IN FRONT OF ME

RIGHT NOW. BUT THIS HAS CONTINUALLY BEEN A PROBLEM FOR US IN

DEPOSITIONS IN TRYING TO OBTAIN ACTUAL TESTIMONY ON THESE

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TOPICS DUE TO PRIVILEGE ISSUES.

AND WE ALSO HAVE A MOTION THAT'S ABOUT TO BE FILED I

BELIEVE BEFORE MAGISTRATE JUDGE COUSINS, RELATING TO PATENT

VALUATION ISSUES AND QUALCOMM'S CLAIMS OF PRIVILEGE ON THESE

VERY TOPICS.

THE COURT: ALL RIGHT. 6, 7, 8, AND 10 YOU ARE

ORDERED TO PRODUCE A WITNESS.

LET'S GO TO THE PLAINTIFF'S MDL.

MS. BONN: I THINK, YOUR HONOR, THOSE TOPICS SEEM TO

SUBSTANTIALLY OVERLAP WITH OUR TOPIC 4. I THINK OUR TOPIC 4 IS

LIKELY SUBSUMED WITHIN THOSE TOPICS.

THE COURT: I WAS GOING TO ORDER NUMBER 4, AND 5. 4

AND 5.

MR. VAN NEST: I THINK THOSE ARE SUBSUMED,

YOUR HONOR, WITHIN WHAT YOU JUST ORDERED ON THE FTC SIDE.

THE COURT: I KNOW. I WAS GOING TO ORDER NUMBER 4

AND 5.

MR. VAN NEST: EXCUSE ME.

ON 4, HOW COULD WE PRESENT SOMEBODY ON THE VALUE OF THE

OTHER SEP HOLDER'S PORTFOLIOS? I MEAN, THAT'S UNREASONABLE.

OUR OWN PORTFOLIO, FINE, BUT WHY AND HOW WOULD WE BE

EXPECTED TO KNOW WHAT THE VALUE OF ANYONE ELSE'S PORTFOLIO IS.

I THINK THAT'S OUTSIDE THE SCOPE OF ANYTHING WE WOULD HAVE

KNOWLEDGE OF. THEY'VE HAD AN OPPORTUNITY TO DEPOSE THE THIRD

PARTIES. ERICSSON, NOKIA, THEY ARE ALL BEING DEPOSED.

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ERICSSON WILL BE DEPOSED. NOKIA IS BEING DEPOSED TODAY. THE

FOLKS AT MEDIA TECH. THE FOLKS THAT HAVE PORTFOLIOS, THEY ARE

BEING DEPOSED AND THEY CAN ASK THEM THAT QUESTION. THAT'S NOT

A REASONABLE 30(B)(6) TO QUALCOMM.

MS. BONN: WE CERTAINLY INTEND TO, YOUR HONOR, AND

YET WE ALSO BELIEVE THAT QUALCOMM MAY HAVE CONDUCTED ANALYSIS

AND OTHER WORK ON THEIR OWN TO ASSESS NOT ONLY THE STRENGTH OR

VALUE OF THEIR PORTFOLIO STANDING ALONE, BUT THE RELATIVE

STRENGTHS COMPARED TO OTHER LICENSORS IN THE STACK.

AND IT'S JUST ONE EXAMPLE, BUT QUALCOMM TOLD THE PARTIES

LAST NIGHT THAT THEY WERE PRODUCING ADDITIONAL DOCUMENTS

RELATING TO THE AVANCI PATENT POOL, WHERE QUALCOMM PARTICIPATES

WITH ERICSSON. AND AVANCI DISTRIBUTES LICENSING REVENUE TO THE

COMPANIES BASED IN PART ON THEIR RELATIVE PORTFOLIO STRENGTH.

AND SO WE ARE NOT ASKING THIS QUESTION TO SEEK INFORMATION

THAT'S SOLELY WITHIN THE HANDS OF THIRD PARTIES, BUT RATHER TO

SEEK INFORMATION ABOUT QUALCOMM'S VIEW OF THE RELATIVE STRENGTH

OF ITS PORTFOLIO COMPARED TO OTHER LICENSORS IN THE STACK.

THE COURT: OBVIOUSLY, IF YOU DON'T HAVE ANY

INFORMATION ON ANY COMPETITORS, THEN YOU JUST DON'T HAVE THE

INFORMATION. BUT IF YOU ARE TELLING ME QUALCOMM HAS NEVER DONE

ANY COMPETITIVE ANALYSIS, THEN THAT'S THE ANSWER. THAT THEY

DON'T LOOK AT ANY OTHER STANDARD ESSENTIAL PATENT HOLDER'S

PORTFOLIOS AND HAVE NO KNOWLEDGE ABOUT ANY OTHER STANDARD

ESSENTIAL PATENT HOLDER'S PORTFOLIOS.

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I WOULD BE SURPRISED IF THERE'S NEVER BEEN ANY COMPARATIVE

ANALYSIS OR COMPETITIVE ANALYSIS, BUT IF THAT'S THE CASE,

THAT'S THE ANSWER, WE JUST DON'T HAVE ANY OTHER INFORMATION

ABOUT ANY OTHER PARTIES'S PORTFOLIO.

MR. VAN NEST: WITH RESPECT TO THE ANSWER COUNSEL

GAVE AVANCI, THAT IS AN AREA WHERE A NUMBER OF MANUFACTURERS

HAVE POOLED PATENTS IN A CERTAIN WAY. THEY ASKED FOR A

30(B)(6) ON AVANCI FROM QUALCOMM AND WE PROVIDED IT.

MR. GONELL WAS A 30(B)(6) WITNESS ON AVANCI. HE

TESTIFIED. THAT'S PERFECTLY APPROPRIATE.

BUT AGAIN, TO THROW THIS IN AT THE ELEVENTH HOUR, AFTER

ALL OF OUR QTL PEOPLE HAVE TESTIFIED, IS JUST NOT FAIR,

ESPECIALLY WHEN YOU ARE ASKING US HOW TO VALUE OTHER PEOPLE'S

PORTFOLIOS.

I JUST THINK, YOU KNOW, THEY -- THE EXAMPLE SHE GAVE IS A

PERFECTLY GOOD EXAMPLE. THEY HAD A SPECIFIC AREA WANTED TO

TEST. THEY ASKED FOR A 30(B)(6), MR. GONELL PROVIDED 30(B)(6)

TESTIMONY ON AVANCI. AND WE HAVE AGREED, THROUGH MEET AND

CONFER, TO PRODUCE ADDITIONAL AVANCI DOCUMENTS, THAT'S RIGHT,

THAT'S PART OF THE NEGOTIATION WE HAD.

MS. BONN: HERE'S PART OF THE ISSUE THERE.

THEY JUST PRODUCED 30,000 DOCUMENTS BELONGING TO

MR. GONELL THIS WEEKEND AFTER HIS DEPOSITION PASSED AND

INDICATED LAST NIGHT THEY WERE GOING TO PRODUCE A MORE RECENT

MODEL FOR AVANCI ON HIS COMPUTER.

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THAT'S JUST ONE EXAMPLE THAT WE HAVE DETERMINED FROM THE

DOCUMENTS WHERE WE DO BELIEVE QUALCOMM HAS DONE SOME SORT

COMPARATIVE ANALYSIS, BUT WE ARE ENTITLED TO KNOW IF THERE ARE

OTHERS.

THE COURT: ALL RIGHT. OKAY. 4 AND 5. THEY ARE

ORDERED.

NOW --

MS. BONN: I HAVE A SUGGESTION ON 6 AND 7.

THE COURT: WHAT'S A SUGGESTION? I HOPE IT'S A

NARROWING SUGGESTION. WHAT'S YOUR SUGGESTION?

MS. BONN: SO COUNSEL HAD SAID HE WAS CONCERNED THAT

THIS POTENTIALLY COVERS HUNDREDS OF LICENSEES.

THE COURT: WHICH IS A VERY VALID POINT.

MS. BONN: YES.

SO LOOKING UP THE DEFINITION OF LICENSEE, IT SAYS "ANY

THIRD PARTY HOLDING A LICENSE TO YOUR STANDARD ESSENTIAL

PATENTS, AND INCLUDES SAMSUNG, ALCATEL, APPLE, LG, ZTE, HUAWEI,

HTC, KYOCERA, MOTOROLA, NOKIA AND BLACKBERRY. I THINK THIS MAY

HAVE BEEN SOME OVERLY PROTECTIVE LAWYER DRAFTING, AND I DON'T

THINK WE NEED A 30(B)(6) BROADER THAN THOSE SPECIFIC IDENTIFIED

LICENSEES AND THEIR AGREEMENTS.

MR. VAN NEST: SO, YOUR HONOR, WHAT SHE'S ASKING IS

TO LIMIT THE DEFINITION TO THE LICENSEES THAT ARE LISTED.

THE COURT: IN DEFINITION NUMBER 26.

MS. BONN: CORRECT.

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MR. VAN NEST: THAT'S ONE WHERE I THINK WE COULD DO

THAT AS LONG AS WE WERE ALLOWED TO DESIGNATE TESTIMONY THAT,

FOR MANY OF THESE, I BELIEVE ALL OF THESE HAVE BEEN TESTIFIED

TO. I KNOW THAT SAMSUNG WAS, I KNOW THAT APPLE WAS, I KNOW

THAT NOKIA WAS, I KNOW THAT BLACKBERRY WAS.

BUT IN COMBINATION WITH NARROWING THESE AND ALLOWING US TO

DESIGNATE, I THINK THAT WOULD BE ACCEPTABLE AND A REASONABLE

WAY TO PROCEED.

THE COURT: ALL RIGHT.

SO 6 AND 7 ARE -- SO 6 AND 7, I WAS GOING TO ORDER THE

PLAINTIFFS TO NARROW 6 AND 7. YOU ARE GOING TO LIMIT IT TO THE

COMPANIES THAT ARE IDENTIFIED IN, I GUESS THAT'S PARAGRAPH

NUMBER 26.

MR. VAN NEST: YES, YOUR HONOR.

THE COURT: OKAY. SO THAT'S GOING TO BE LIMITED TO

COMPANIES IDENTIFIED BY NAME IN PARAGRAPH 26. OKAY. SO THAT

APPLIES TO BOTH 6 AND 7. NOW LET'S GO TO --

MR. VAN NEST: AND YOUR HONOR, WOULD WE HAVE THE

RIGHT TO DESIGNATE, TO THE EXTENT THEY HAVE HAD TESTIMONY ON

THESE, WE WOULD LIKE THE RIGHT TO DESIGNATE THE TESTIMONY, AND

THAT WILL STAND FOR THE CORPORATION. WE HAD TO HAVE OUR QTL

TESTIFYING ABOUT MANY OF THESE.

MS. BONN: MY VIEW IS -- WHAT I WOULD PROPOSE,

FRANKLY, THESE TOPICS ARE RELATED TO OUR LICENSING EXPERT. I

HAVE A FEELING THAT WE ARE GOING TO WANT WELL-PREPARED

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WITNESSES WHO CAN ANSWER SPECIFIC QUESTIONS.

SO WHAT I WOULD PROPOSE IS THAT WE CAN GIVE AN OUTLINE OF

QUESTIONS IN ADVANCE, BUT THAT THEY DO PUT UP A LIVE WITNESS TO

ANSWER THEM. BECAUSE I'M NOT SURE TO WHAT EXTENT THE TESTIMONY

THEY WANT TO DESIGNATE WILL ACTUALLY ANSWER THE SPECIFIC

QUESTIONS.

SO I THINK THAT'S A FAIR WAY FOR THEM TO BE PREPARED FOR

THE DEPOSITION. IT'S NOT GOING TO BE A FREE-WHEELING

DISCUSSION OF ANY TOPIC THAT THEY DON'T SEE IN ADVANCE. WE

WILL GIVE THEM THE QUESTIONS WE INTEND TO COVER, AT LEAST THE

TOPICS RELATED TO THESE ISSUES IN ADVANCE SO THAT THEY CAN

SUFFICIENTLY PREPARE A WITNESS.

MR. VAN NEST: YOUR HONOR, THAT'S --

MS. BONN: AND IDENTIFY THE EXHIBITS AS WELL.

MR. VAN NEST: YOUR HONOR, THAT'S A REDO. THAT'S A

REDO.

THEY HAD THE PEOPLE THAT NEGOTIATED THE APPLE CONTRACTS,

AND SAMSUNG, AND THEY HAD TWO DAYS WITH EACH WITNESS, TWO FULL

DAYS.

TO SAY NOW THAT WE ARE GOING TO GO BACK ON THESE, EVEN IF

THEY ARE SPECIFIC, AND SAY WE GET A WHOLE BUNCH MORE QUESTIONS,

THAT'S NOT A 30(B)(6), THAT'S NOT FAIR. THEY CHOSE THE PEOPLE

TO DEPOSE. WE ARE WILLING TO HAVE THAT TESTIMONY STAND FOR THE

CORPORATION AND DESIGNATE IT.

BUT TO GIVE THEM ANOTHER SHOT WHEN THEY HAVE ALREADY HAD A

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FULL TWO-DAY DEPOSITION OF FOLKS THAT WERE INVOLVED IN THESE,

THAT'S NOT FAIR. I WOULD ASK THAT WE BE ALLOWED TO DESIGNATE

TESTIMONY, AND AFTER WE DESIGNATE, IF THEY'VE GOT SOME PROBLEM,

THEY CAN RAISE IT.

THE COURT: NO, I'M SORRY. WE NEED TO SHORT CIRCUIT

SOME OF THESE DISPUTES. THE END OF DISCOVERY IS FRIDAY OF NEXT

WEEK. YOU WILL PRODUCE A WITNESS ON THE MORE NARROW TOPICS OF

6 AND 7.

MR. VAN NEST: WILL THEY PROVIDE -- CAN THEY PROVIDE

THE WRITTEN NOTICE AHEAD OF TIME SO WE KNOW WHAT THEY NEED?

THE COURT: YES, YES.

MS. BONN: WE WILL.

THE COURT: ALL RIGHT. LET'S GO TO 8.

NOW WHY DO YOU NEED 8? DON'T YOU ALREADY HAVE THEIR

FINANCIAL STATEMENTS?

MS. BONN: ON NUMBER 8, WHAT I SUGGEST IS, I HAVE A

FEELING THAT THERE'S A REASON AN EXPERT HAD SPECIFIC QUESTIONS,

AND I AGREE THAT THE TOPIC DOESN'T INFORM QUALCOMM OF THE

SPECIFIC QUESTIONS WE INTEND TO ASK.

AND SO I WOULD SUGGEST SOMETHING SIMILAR THAT WE TALKED TO

OUR EXPERTS AND PROVIDE AN OUTLINE IN ADVANCE OF THE SPECIFIC

TOPICS WE INTEND TO COVER, AND THE SPECIFIC FINANCIAL

STATEMENTS AND PORTIONS THEREOF, IF ANY.

MR. VAN NEST: AGAIN, THERE, YOUR HONOR, WE HAD --

OUR CFO HAS ALREADY TESTIFIED. I THINK OUR FINANCIAL

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STATEMENTS ARE ALL PUBLIC, AS YOU KNOW. BUT I WOULD LIKE THE

ABILITY TO DESIGNATE TESTIMONY THERE.

THE COURT: THAT SEEMS FAIR FOR THAT ONE.

I MEAN, THEIR FINANCIAL STATEMENTS, I DON'T KNOW, MAYBE

THEY DON'T HAVE IT AT THE GRANULAR LEVEL THAT YOU ARE TALKING

ABOUT, SEGMENT, DIVISION, UNIT, BUT I ASSUME THEIR FINANCIAL

STATEMENTS ARE PUBLIC, MAYBE NOT TO THE LEVEL OF SPECIFICITY

THAT'S REQUESTED IN THIS TOPIC.

MS. BONN: HERE'S WHAT I WOULD SUGGEST, YOUR HONOR, I

THINK THERE MAY NOT BE A DISPUTE HERE. WHAT I WOULD PROPOSE IS

I WOULD LIKE TO LOOP IN WITH MY EXPERTS AND FIGURE OUT WHAT ARE

THE SPECIFIC TOPICS THEY WANT TO COVER. AND WE CAN NOTIFY

QUALCOMM.

TO THE EXTENT THEY CAN DESIGNATE PRIOR TESTIMONY ON IT,

THAT'S FINE. BUT TO THE EXTENT THERE ARE -- AND WE MAY ALSO

ACCEPT A WRITTEN ANSWER ON SOME OF THOSE TOPICS, IN LIEU OF A

PERSON SITTING IN A CHAIR.

I THINK THAT THAT CAN BE NARROWED THROUGH A MEET AND

CONFER.

THE COURT: ALL RIGHT. SO FOR 8, YOU CAN DESIGNATE

TESTIMONY. FOR 8 YOU CAN DESIGNATE TESTIMONY.

MR. VAN NEST: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. NOW WHAT ABOUT STRATEGIC

PLANS FOR FISCAL YEARS 2012 THROUGH THE PRESENT?

I WAS GOING TO ORDER THAT, THAT SEEMS REASONABLE.

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MR. VAN NEST: AGAIN, YOUR HONOR, THOSE HAVE BEEN

PRODUCED.

TO THE EXTENT THEY EXIST, THEY HAD OUR QTL LEADERSHIP,

EACH MEMBER THEREOF FOR TWO DAYS. THEY HAD EVERY OPPORTUNITY.

THEY DID ASK, IN AT LEAST ONE OF THE DEPOSITIONS I ATTENDED,

ABOUT STRATEGIC PLANS GOING FORWARD. THIS IS MORE LIKE A

REQUEST FOR PRODUCTION.

THERE'S NO -- THERE NO, EVEN TOPIC HERE. THEY HAD THOSE

PEOPLE, THEY HAD THOSE DOCUMENTS, THEY HAD A FULL OPPORTUNITY

ON THAT. AGAIN, THAT'S ONE I SHOULD BE ABLE TO DESIGNATE ON.

MR. ROGERS SAT AND TALKED FOR MORE THAN AN HOUR ABOUT THE

STRATEGIC PLANS OF QTL.

THE COURT: WHAT DO YOU NEED THIS FOR? THIS IS A

PRETTY BROAD TOPIC?

MS. BONN: YEAH.

I THINK THAT THE ISSUE HERE, YOUR HONOR, IS THAT WHILE

QUALCOMM HAS PRODUCED STRAT PLANS AND WE HAVE TAKEN THE DEPOS

OF SOME SENIOR OFFICIALS, ON THE FLIP SIDE, WE ARE GETTING

THESE EXTREMELY LARGE DOCUMENT PRODUCTIONS LATE IN THE GAME,

SOME OF WHICH TIE INTO THE STRATEGIC PLAN.

SO RATHER THAN TRY TO FIGURE OUT, WELL, WHAT DO WE DO, DO

WE RE-DEPOSE AN INDIVIDUAL PERSON, WE THOUGHT THIS WAS A

SUFFICIENTLY NARROWED TOPIC BECAUSE IT RELATES TO SPECIFIC

STRATEGIC PLANS FOR QUALCOMM IN A NARROW TIME PERIOD.

MR. VAN NEST: YOUR HONOR, THEY GOT THESE PLANS IN

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NOVEMBER. THE STRATEGIC PLANS WERE PRODUCED AS PART OF OUR

PRODUCTION THAT WAS SUBSTANTIALLY COMPLETE BY THE END OF

NOVEMBER. THEY HAD HAD THE STRATEGIC PLANS FROM VERY, VERY

EARLY ON.

AND AGAIN, JUST TO THROW THIS OUT, IT'S OVERBROAD. IT

EITHER SHOULD BE DENIED OR GIVEN A CHANCE TO DESIGNATE ON IT

BECAUSE THEY HAD A FULL OPPORTUNITY ON THIS.

THE COURT: WHAT'S YOUR RESPONSE TO THAT?

MS. BONN: YES, BUT THE STRATEGIC PLANS ALSO HAVE TO

BE UNDERSTOOD IN LIGHT OF RELATED DOCUMENTS.

AND BECAUSE WE ARE GETTING EXTREMELY LARGE PRODUCTIONS OF

DOCUMENTS FROM SOME OF THE MOST SENIOR EXECUTIVES, INCLUDING,

YOU KNOW, SEVERAL WHO HAVE TESTIFIED RECENTLY, YOU KNOW, WE

THINK THIS IS A NARROW TOPIC, IT WILL GIVE US A CHANCE TO

DEPOSE THE COMPANY ONCE ABOUT THE STRATEGIC PLANS IN LIGHT OF

THE DOCUMENTS THAT HAVE BEEN --

THE COURT: I'M GOING TO ORDER IT.

I MEAN, THEY ARE GETTING A LOT OF DOCUMENTS NOW. AND SO

TO SAY, NOPE, YOU ARE LIMITED TO THE DEPOSITIONS THAT YOU TOOK

WHEN WE DIDN'T PRODUCE A VAST MAJORITY OF THE DOCUMENTS,

BECAUSE THEY WERE OVER-WITHHELD AS PRIVILEGED, AND YOU ARE

STUCK WITH THAT, IS NOT FAIR.

SO I'M ORDERING 8.

LET'S MOVE ON. I MEAN 9 -- 9. EXCUSE ME. 9.

OKAY. NOW 11 I'M GOING TO ALLOW. THAT'S FAIR. I'M

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ORDERING A WITNESS BE MADE AVAILABLE FOR THAT TOPIC. NOW WHAT

ABOUT 10?

MR. VAN NEST: YOUR HONOR, 11, I BELIEVE WE'VE

ALREADY PRODUCED A WITNESS. THERE'S BEEN A LOT OF LITIGATION

OVER THIS. A WITNESS TO EXPLAIN THAT PROCESS AND ALL OF THAT.

I THINK -- LET ME ASK MS. SESSIONS, BUT I BELIEVE ON 11 --

THE COURT: BUT I THINK A 30(B)(6) ON THIS IS

NECESSARY.

MR. VAN NEST: YOUR HONOR, THIS HAS BEEN THE SUBJECT

OF EXTENSIVE WRITTEN COMMUNICATION BETWEEN QUALCOMM AND THE FTC

AND THE MDL PLAINTIFFS.

THE COURT: BUT NOW YOU NEED A CORPORATE

REPRESENTATIVE TO MAKE A CORPORATE STATEMENT ON THESE TOPICS.

OKAY. LET'S MOVE ON.

OKAY. SO LET'S GO TO 10. YES, 10. WHY DO YOU NEED THAT?

MS. BONN: CAN I EXPLAIN NUMBER 10?

SO QUALCOMM HAS CERTAIN PATENT PORTFOLIOS THAT IT CLAIMS

CONTAINS STANDARD ESSENTIAL PATENTS. AND THERE ARE CERTAIN

PUBLICLY AVAILABLE DATABASES WHERE ONE CAN TRY TO DOWNLOAD ALL

THE PATENTS. AND YET SOME OF THAT DATA NEEDS EXTENSIVE

CLEANING, IT'S GOT MESSY OCR, ET CETERA.

AND WE HAVE SEEN THAT IN SOME OF THE OTHER CASES,

ERICSSON, THE PARTIES HIRED EXPERTS TO GO THROUGH THE

SUBSTANTIAL EFFORT OF CREATING A CLEAN SET OF PATENTS AT ISSUE.

AND SO WE WANT TO KNOW, DOES QUALCOMM HAVE ANY CENTRALIZED

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DATABASE WHERE THEY MAINTAIN A COLLECTION OF ALL OF THE PATENTS

THAT THEY CONTEND TO BE STANDARD ESSENTIAL.

AND IT'S COME OUT IN DEPOSITIONS AND OTHERWISE THAT THEY

MAY MAINTAIN OTHER INFORMATION. FOR EXAMPLE, I THINK PART OF

THE ISSUE BEING TEED UP FOR JUDGE COUSINS IN THE FORTHCOMING

MOTION IS THEY MAY HAVE INFORMATION ABOUT HOW THEY RANKED

CERTAIN PATENTS. CERTAIN SCORING THAT THEY GAVE CERTAIN

PATENTS.

AND SO THIS TOPIC IS REALLY GEARED AT UNDERSTANDING THE

REPOSITORIES OR DATABASES WHERE THEY MAINTAIN THAT KIND OF

INFORMATION AND THE TYPE OF INFORMATION THAT'S CONTAINED WITHIN

IT.

THE COURT: THE WITNESSES ARE ORDERED ON THAT.

LET'S GO THROUGH THE TOPICS. YOU ARE GOING TO DESIGNATE

TESTIMONY ON 1. YOU ARE GOING TO DESIGNATE TESTIMONY ON 2.

MR. VAN NEST: 1, WE ARE GOING TO DESIGNATE.

THE COURT: YES. 1 YOU ARE DESIGNATING. I THINK 2

YOU ARE DESIGNATING.

MR. VAN NEST: YES, THAT'S RIGHT, 2, WE SAID WE COULD

DESIGNATE. IT'S OVERBROAD, BUT I WILL DO MY BEST.

THE COURT: 3 YOU SAID WAS NOT CONTROVERSIAL.

MR. VAN NEST: WELL, SOURCES OF PUBLICLY AVAILABLE

DATA. WHY ARE WE -- WHY DO THEY NEED THAT FROM US? I CAN TELL

THEM WHAT WE THINK IS OUT THERE, BUT THEY KNOW WHAT'S OUT

THERE.

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THE COURT: YEAH. THAT'S ALL THEY ARE ASKING FOR.

MR. VAN NEST: SO WE WILL JUST PROVIDE A LIST, WE

DON'T NEED A WITNESS FOR THAT.

THE COURT: I WOULD JUST PRODUCE A WITNESS ON THAT.

MR. VAN NEST: YOU WOULD OR YOU WOULDN'T?

THE COURT: I WOULD.

SO 3, 4 -- IF YOU DON'T KNOW, YOU DON'T KNOW. JUST MAKE A

CORPORATE REPRESENTATIVE SAY, AS A COMPANY, WE HAVE NO IDEA

WHAT PUBLICLY AVAILABLE DATA THERE IS AS TO OUR CUSTOMERS, OUR

MARKET SHARE, OUR SUPPLY, OUR DEMAND.

IT'S JUST WHAT YOU KNOW. NO ONE IS ASKING QUALCOMM TO GO

SEARCH FOR THINGS THAT ARE NOT IN QUALCOMM'S KNOWLEDGE OR

POSSESSION.

MR. VAN NEST: MY POINT IS, IF IT'S JUST A SOURCE,

WHY CAN'T I PROVIDE A LIST OF IT? THAT'S ALL I WOULD HAVE. I

WOULD JUST BE HANDING A LIST AFTER WE INTERVIEW OUR PEOPLE.

THE COURT: IT'S BROADER THAN THAT.

"ANY USES MADE BY QUALCOMM AS PART OF THE BUSINESS, ANY

RELIANCE FOR BUSINESS PURPOSES, FINANCIAL REPORTING PURPOSES."

I JUST DON'T THINK A WRITTEN ANSWER WOULD BE SUFFICIENT ON

THAT TOPIC.

"ANY RELIANCE UPON SAID DATA, SUPPORT STATEMENTS MADE TO

INVESTORS IN SUPPORT OF QUALCOMM'S BUSINESS."

I JUST THINK A LIST WOULD BE UNSATISFACTORY.

SO 3, 4, 5, 6, 7, 9, 10, 11, YOU'RE GOING TO PRODUCE A

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WITNESS ON. YOU ARE GOING TO DESIGNATE TESTIMONY ON 1, 2, AND

8.

AND IN ADDITION, ON 6 AND 7, THOSE ARE LIMITED TO THE

COMPANIES THAT ARE IDENTIFIED BY NAME IN PARAGRAPH 26, AND ALSO

YOU ARE GOING TO PROVIDE A LIST OF TOPICS, MORE SPECIFICALLY,

FOR 6 AND 7 FOR THE DEPOSITION.

MS. BONN: YES, YOUR HONOR.

AND ONE CLARIFICATION, ON 1, 2 AND 8 WHERE QUALCOMM IS

DESIGNATING TESTIMONY, ARE WE PERMITTED TO SUBMIT THE SPECIFIC

QUESTIONS TO WHICH WE WANT DESIGNATED TESTIMONY AND RESPONSE

TO?

THE COURT: THAT'S FINE. BUT IT NEEDS TO BE

SPECIFIC, IT CAN'T BE PROFFER.

MS. BONN: YES, YOUR HONOR. IT WILL BE SPECIFIC.

MR. VAN NEST: I'M ASSUMING IT WILL BE MORE NARROW

THAN WHAT'S IN HERE NOW.

MS. BONN: ABSOLUTELY, YOUR HONOR.

THE COURT: IT BETTER BE.

SO YOU ARE GOING TO SUBMIT THE QUESTIONS ON 1, 2, AND 8,

RIGHT?

MS. BONN: YES, YOUR HONOR.

THE COURT: OKAY.

MR. VAN NEST: I THOUGHT 6 AND 7 AS WELL.

THE COURT: WELL, 1, 2 AND 8 THEY ARE GOING TO GIVE

YOU SPECIFIC NARROW QUESTIONS TO WHICH YOU ARE GOING TO

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DESIGNATE TESTIMONY. TO 6 AND 7, THEY ARE REQUESTING TO GIVE

YOU A LIST OF TOPICS BEFORE THE DEPOSITION, THAT SHOULD BE

NARROW, A LIST OF NARROW TOPICS.

WELL, IT NEEDS TO BE SPECIFIC.

MS. BONN: YES, YOUR HONOR. I DON'T THINK WE ARE

GOING TO HAVE AN ISSUE THERE.

THE COURT: OKAY. AND THEN AS FAR AS THE FTC, I'M

ORDERING A LIVE WITNESS ON 6, 7, 8, AND 10. YOU'VE WORKED OUT

OR I'M HOPEFUL THAT YOU WILL WORK OUT A PROCEDURE ON 11. AND

ACTUALLY, I GUESS I'M ORDERING IT ON 5 AS WELL.

MR. BORNSTEIN: WE HAVE ALREADY PRODUCED ON 5,

YOUR HONOR.

THE COURT: EXCUSE ME. THE WITNESS HAS ALREADY BEEN

DEPOSED ON 2, 3, 4 AND 5, AND FTC HAS WITHDRAWN 1 AND 9.

MR. BORNSTEIN: YES, YOUR HONOR.

AND I RAISE ONE SMALL THING ON NUMBER 7, WHICH --

THE COURT: YES, GO AHEAD.

MR. BORNSTEIN: I LOOKED BACK AT THIS AGAIN, NUMBER 7

IS THE ONE THAT INCLUDES A REQUEST FOR A WITNESS TO TALK ABOUT

VALUE ON PATENTS THAT ARE NOT SUBSTANTIALLY EMBODIED IN CERTAIN

PRODUCTS.

AND I MENTIONED THIS BEFORE, AND WE DIDN'T GET BACK TO IT.

THIS WOULD REQUIRE AN IMMENSE, IF I UNDERSTAND IT CORRECTLY, AN

IMMENSE AMOUNT OF WORK OF THE SORT THAT YOU WOULD DO IN A

PATENT INFRINGEMENT OR EXHAUSTION CASE, WHICH YOUR HONOR KNOWS

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EXTREMELY WELL.

I CAN'T POSSIBLY HAVE SOMEONE GO THROUGH AND DO A

PATENT-BY-PATENT ASSESSMENT OF WHETHER OR NOT ONE OF MANY

HUNDREDS, MANY TENS OF THOUSANDS OF PATENTS ARE OR ARE NOT

SUBSTANTIALLY EMBODIED IN A WHOLE VARIETY OF DIFFERENT PRODUCTS

THAT FALL WITHIN THE DEFINITION OF RELEVANT PRODUCT.

THIS IS GARGANTUAN. I JUST DON'T THINK THIS PIECE OF IT

IS REASONABLE.

THE COURT: WHY CAN'T THE CORPORATE REPRESENTATIVE

SAY THAT IS NOT AN ANALYSIS THAT QUALCOMM CONDUCTS?

MR. BORNSTEIN: IF THAT'S ALL WE NEED, THEN THAT'S

FINE. I CAN HAVE SOMEONE SAY THAT. BUT IF THEY WANT US TO GO

THROUGH AND DO THIS ANALYSIS ON A PATENT-BY-PATENT BASIS, THAT

WE CAN'T DO.

THE COURT: WHAT IS FTC'S RESPONSE?

MS. GILLEN: YOUR HONOR, TO THE EXTENT THAT QUALCOMM

IS CONCERNED THAT WE ARE GOING TO BE ASKING ABOUT INDIVIDUAL

PATENTS, THAT'S CERTAINLY NOT THE FTC'S INTENT WITH THIS TOPIC.

HOWEVER, TO THE EXTENT QUALCOMM GROUPS ITS PATENTS IN A

CERTAIN WAY OR IT KEEPS THIS INFORMATION IN ANY FORM, THESE ARE

THE TYPES OF THINGS WE WOULD LIKE TO PURSUE WITH A CORPORATE

DESIGNEE.

THE COURT: ALL RIGHT. IT'S STILL ORDERED. PLEASE

PRODUCE A WITNESS ON THAT.

OKAY. NOW, WHEN IS THAT 30(B)(6) GOING TO BE? OR I WILL

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LET YOU ALL WORK THAT OUT.

SINCE WE ARE NEARING THE END, I WANT EVERYONE TO STAY ON

TRACK. I APPRECIATE YOUR PATIENCE, AND I'M SORRY THAT THIS HAS

BEEN SUCH A LONG CMC. I WOULD LIKE TO HAVE ANOTHER CMC IN A

WEEK.

WHAT WOULD -- OR WOULD YOU PREFER TO COME BACK -- I DON'T

WANT TO JAM YOU BECAUSE YOU ARE PROBABLY VERY BUSY NEXT WEEK

SINCE THAT'S THE CLOSE OF DISCOVERY. YOU WANT TO COME BACK ON

APRIL 2ND OR APRIL 3RD?

MR. VAN NEST: IS THAT TWO WEEKS?

THE COURT: YES. THAT ACTUALLY WOULD BE -- I JUST

ASSUME NEXT WEEK YOU ARE GOING TO BE REALLY SWAMPED, RIGHT?

MR. VAN NEST: YES, YOUR HONOR.

THE COURT: SO DO YOU WANT TO COME BACK THAT

FOLLOWING WEEK, THE WEEK OF APRIL 2ND?

I JUST WANT TO MAKE SURE EVERYTHING STAYS ON TRACK AND,

YOU KNOW, IF THERE IS SOMETHING THAT I CAN HELP OUT ON, ON

RESOLVING QUICKLY SO YOU CAN MOVE FORWARD, I WOULD LIKE TO DO

IT.

MR. VAN NEST: I THINK TWO WEEKS. LET'S TAKE A LOOK.

MR. BORNSTEIN: YEAH.

MS. GILLEN: THAT WOULD WORK FOR THE FTC AS WELL.

TWO WEEKS.

THE COURT: WELL, LET ME ASK, I CAN'T RECALL, WE

CAN'T SCHEDULE IT ON APRIL 5TH. I THINK APRIL 4TH IS TOTALLY

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FULL.

THE CLERK: YES, YOUR HONOR.

(OFF-THE-RECORD DISCUSSION.)

THE COURT: WHEN DO THE PLAINTIFFS WANT TO COME BACK?

IN THE MDL?

MS. BONN: WE COULD COME BACK ON THE 6TH. I THINK

YOUR HONOR MENTIONED THE 2ND AS WELL. WE COULD COME BACK ON

THE 2ND.

THE COURT: WELL, I WOULD NEED A JOINT CASE

MANAGEMENT STATEMENT IN ADVANCE.

SO IF YOU'RE REALLY SWAMPED NEXT WEEK, BECAUSE THAT'S THE

LAST WEEK OF FACT DISCOVERY, I DON'T KNOW IF YOU WOULD HAVE

TIME TO MEET AND CONFER AND PRODUCE A STATEMENT.

DO YOU HAVE TIME TO DO THAT?

MR. BORNSTEIN: I WOULD SUGGEST NEXT WEEK IS GOING TO

BE A CHALLENGE, YOUR HONOR.

THE COURT: SO IF YOU PROVIDED IT ON THE 2ND, OR I

GUESS IF YOU NEED TIME, IF YOU PRODUCED IT ON, FILED IT ON THE

3RD, WE COULD DO IT ON THE 6TH.

WHAT TIME ARE OUR THINGS ON THE 6TH? I'M SORRY.

THE CLERK: (OFF-THE-RECORD DISCUSSION.)

THE COURT: OKAY. SO I GUESS IF YOU WANTED TO DO IT

IN THE MORNING -- OR, I'M SORRY, YOU ARE FLYING IN FROM

NEW YORK. WHAT IS BETTER FOR YOU, MORNING OR AFTERNOON?

MR. BORNSTEIN: AS LONG AS I CAN CATCH A FLIGHT HOME

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THAT'S NOT A RED-EYE, YOUR HONOR.

THE COURT: WHY DON'T WE DO MORNING.

MS. BONN: THAT'S FINE, YOUR HONOR.

THE COURT: OKAY. SO LET'S SAY YOU WILL FILE A JOINT

CASE MANAGEMENT STATEMENT BY, LET'S SAY BY APRIL 3RD.

MS. BONN: THAT'S FINE, YOUR HONOR.

THE COURT: AND THEN -- AND THAT'S IN BOTH CASES,

BOTH FTC AND MDL, PLEASE.

AND THEN LET'S HAVE ANOTHER CMC ON APRIL 6TH, SHALL WE

SAY, 10:00?

MR. BORNSTEIN: THAT'S FINE FOR ME, YOUR HONOR.

MS. BONN: THAT'S FINE, YOUR HONOR.

MR. BORNSTEIN: THERE ARE FLIGHTS I CAN CATCH FROM

SAN FRANCISCO.

THE COURT: OKAY.

MS. GILLEN: THAT'S FINE FOR THE FTC AS WELL.

THE COURT: OKAY. LET'S SAY 10:00.

NOW I DO HAVE COURT ON THE 4TH AND 5TH, IF WE ARE DOING

THIS IN THE MORNING, IS IT POSSIBLE, ACTUALLY, CAN WE DO THIS

AT 11:00?

LET'S DO THIS AT 11:00, AND THEN I WON'T REQUIRE YOU TO

FILE ON APRIL 3RD BY 2:00. YOU CAN HAVE THE WHOLE DAY.

AND THAT WAY, IF I HAVE TO PREPARE THIS IN THE MORNING ON

FRIDAY, I WILL DO THAT. I WILL BE IN COURT ALL DAY ON THE 4TH.

MR. VAN NEST: 11:00 WORKS, YOUR HONOR.

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THE COURT: IS THAT OKAY FOR YOU?

MR. BORNSTEIN: YES, YOUR HONOR.

I DON'T EXPECT IT WILL BE QUITE SO LONG.

THE COURT: I HOPE NOT. I HOPE MOST THINGS ARE

RESOLVED.

YOU KNOW, I APPRECIATE HOW HARD EVERYONE IS WORKING. I'M

REALLY GRATEFUL TO JUDGE COUSINS, BECAUSE HE IS JUST HANDLING

SO MUCH, SO MUCH.

SO I'M HOPING THAT MOST THINGS WILL ALREADY BE RESOLVED BY

THEN. AND IF IT TURNS OUT THERE'S NOTHING TO TALK ABOUT, I

WILL VACATE, OR I WILL PROBABLY CONTINUE IT OUT TO SOME DATE IN

THE FUTURE, BUT THERE'S NO REASON TO HAVE IT IF THERE'S NOTHING

TO TALK ABOUT.

THE COURT: OKAY, ANYTHING ELSE?

MS. GILLEN: YOUR HONOR, I THINK ONE ISSUE THAT WAS

TOUCHED UPON, BUT I DON'T THINK THERE WAS ANY FINAL RESOLUTION

IS PLAINTIFF'S REQUEST FOR A TWO-WEEK EXTENSION ON THEIR MOTION

FOR CLASS CERTIFICATION.

THE COURT: OH, OH, I'M SORRY. YOU HAD -- BOTH SIDES

HAD A NUMBER OF ISSUES. OKAY.

SO LET'S GO TO THE -- THESE DEPOSITIONS THAT YOU WANTED TO

SCHEDULE IN APRIL, ESSENTIAL PRODUCTS, INTERDIGITAL, LENOVO,

NOKIA, APPLE, THAT'S FINE. THAT'S APPROVED. I ASSUME NOW YOU

WILL HAVE TO ADD ERICSSON TO THAT LIST.

AS FAR AS FTC ACTION WANTING TO EXTEND THE EXPERT

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DISCOVERY, IT LOOKS LIKE BY ABOUT TEN DAYS, ROUGHLY.

MR. BORNSTEIN: THAT'S CORRECT, YOUR HONOR.

THE COURT: OKAY. THAT'S FINE.

AS FAR AS THE CLASS CERT, I AM GOING TO ADOPT THE

PROPOSAL, THE ONLY THING I WOULD DO IS I WOULD MOVE THE CLASS

CERT HEARING TO AUGUST 2ND, JUST BECAUSE OTHERWISE I GET LESS

THAN SIX DAYS WITH THE REPLY BRIEF, WHICH IS NOT ENOUGH TIME.

SO AUGUST 2ND, 2018, WOULD AT LEAST GIVE NOT EVEN QUITE

TWO WEEKS, BUT ALMOST TWO WEEKS. IT WOULD GIVE ME LESS THAN

TWO WEEKS.

MR. VAN NEST: SAME TIME, YOUR HONOR?

THE COURT: YES. 1:30, PLEASE.

SO WAIT, LET'S SAY -- CAN YOU LINE THIS UP ON A THURSDAY,

THEN IT WILL GIVE ME EXACTLY TWO WEEKS BEFORE THE HEARING.

THIS IS REALLY COMPLICATED, AND I COULD USE THE TIME.

MS. BONN: YES, YOUR HONOR.

THE COURT: SO COULD WE SAY JUNE 21ST FOR THE

OPPOSITION?

MR. VAN NEST: MAY 16TH FOR THE MOTION.

THE COURT: THE 17TH IS ON A THURSDAY. MAY 3RD AND

MAY 17TH ARE ON A THURSDAY. SO THAT'S FIVE WEEKS FOR THE

OPPOSITION, THAT'S JUNE 21ST.

AND IT WOULD BE JULY 19TH FOR THE REPLY. AND THEN -- OH,

WAIT, NO, I'M SORRY. OH, YEAH, OKAY. AND THEN THE HEARING

ITSELF WOULD BE AUGUST 2ND, SO THAT WOULD GIVE ME TWO FULL

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WEEKS, AT 1:30.

NOW, WERE YOU ALL INTERESTED IN ANY ADR OR NOT?

MR. BORNSTEIN: YOUR HONOR, WE HAVE HAD PERIODIC

CONFERENCES WITH THE ADR COORDINATOR. AT LEAST FOR PURPOSES OF

THE FTC CASE, I DON'T THINK THAT WOULD BE PRODUCTIVE AT THIS

TIME, PARTICULARLY GIVEN THE STATE OF THE COMMISSION IN

WASHINGTON RIGHT NOW.

THE COURT: RIGHT.

WHEN HAVE THE NEW COMMISSIONERS BEEN CONFIRMED, OR WHEN DO

YOU EXPECT THEM TO BE CONFIRMED?

MR. BORNSTEIN: I DON'T KNOW, YOUR HONOR, AND I'M

CERTAINLY NOT IN A POSITION TO GUESS.

THE COURT: ALL RIGHT. HAVE THEY HAD HEARINGS?

MS. GILLEN: YES, AND I DO NOT HAVE ANY VISIBILITY

INTO WHEN THAT WILL HAPPEN.

THE COURT: YOU SAID YOU DON'T KNOW WHEN THE

CONFIRMATIONS WILL HAPPEN? DO THEY HAVE CONFIRMATION HEARINGS

AT COMMITTEE VOTES?

MR. BORNSTEIN: I UNDERSTAND THAT SOME OF THEM HAVE

GONE THROUGH COMMITTEE.

THE COURT: OKAY. HAVE THEY BEEN VOTED OUT OF

COMMITTEE AND THEY ARE JUST WAITING FOR FLOOR TIME, OR DO YOU

KNOW?

MS. GILLEN: I'M NOT SURE, YOUR HONOR.

I KNOW OUR OFFICE IS STILL WAITING FOR A FIFTH

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COMMISSIONER TO BE APPOINTED.

MR. BORNSTEIN: MY UNDERSTANDING --

THE COURT: YOU MEAN NOMINATED, OR CONFIRMED?

MS. GILLEN: NOMINATED, I'M SORRY.

MR. BORNSTEIN: MY UNDERSTANDING, YOUR HONOR, IS

THERE HAVE BEEN FOUR NOMINATIONS MADE, THAT THOSE FOUR

INDIVIDUALS HAVE BEEN VOTED OUT OF COMMITTEE. AND THERE'S A

FIFTH OPEN SLOT FOR WHICH THERE'S BEEN NO NAME PUT FORTH. AND

THE FOUR THAT WERE VOTED OUT OF COMMITTEE HAVE NOT YET

PROGRESSED ANY FURTHER IN THE PROCESS, TO MY KNOWLEDGE.

THE COURT: OKAY. AND DO YOU KNOW WHEN THEY WERE

VOTED OUT OF COMMITTEE?

MR. BORNSTEIN: I WANT TO SAY IT WAS ABOUT A MONTH

AGO, YOUR HONOR, BUT MS. GILLEN MIGHT HAVE BETTER KNOWLEDGE ON

THAT.

MS. GILLEN: THAT'S MY RECOLLECTION AS WELL, ABOUT A

MONTH AGO.

THE COURT: OKAY. ALL RIGHT. SO NO ON THE FTC,

THEN, I COMPLETELY UNDERSTAND WHY.

NOW WHAT ABOUT THE MDL, IS THAT -- AND IF YOU ARE NOT

INTERESTED, THAT'S FINE. I JUST WANT TO RAISE THE ISSUE.

MR. VAN NEST: I DON'T THINK THE TIMING IS GOOD NOW,

YOUR HONOR. I THINK WE NEED TO GET THROUGH CLASS CERT.

THE COURT: OKAY. SO YOU WILL NEED A CLASS CERT

RULING, YOU THINK?

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MR. VAN NEST: YES, I THINK SO.

THE COURT: OKAY.

MR. VAN NEST: THANK YOU.

THE COURT: ALL RIGHT. THANK YOU ALL.

THANK YOU VERY MUCH.

(THE PROCEEDINGS WERE CONCLUDED AT 3:40 P.M.)

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CERTIFICATE OF REPORTER

I, THE UNDERSIGNED OFFICIAL COURT

REPORTER OF THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

CERTIFY:

THAT THE FOREGOING TRANSCRIPT,

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

TRANSCRIPTION TO THE BEST OF MY ABILITY.

_________________________

SUMMER A. FISHER, CSR, CRR

CERTIFICATE NUMBER 13185 DATED: 3/26/18

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