SUPP. JOINT CASE MANAGEMENT STATEMENT

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

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Jennifer Milici, D.C. Bar No. 987096

J. Alexander Ansaldo, Va. Bar No. 75870 

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

Wesley G. Carson, D.C. Bar No. 1009899 

Elizabeth A. Gillen, Cal. Bar No. 260667 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

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

jmilici@ftc.gov

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice) 

yeven@cravath.com 

825 Eighth Avenue 

New York, New York 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest (SBN 84065) 

Asim M. Bhansali (SBN 194925) 

Eugene M. Paige (SBN 202849) 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

Lin W. Kahn, Cal. Bar No. 261387 

Federal Trade Commission 

901 Market Street, Suite 570 

San Francisco, CA 94103 

(415) 848-5115; (415) 848-5184 (fax) 

lkahn@ftc.gov 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com 

Willard K. Tom (pro hac vice) 

willard.tom@morganlewis.com 

Donn P. Pickett (SBN 72257) 

donn.pickett@morganlewis.com 

Geoffrey T. Holtz (SBN 191370) 

geoffrey.holtz@morganlewis.com 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

vs. 

QUALCOMM INCORPORATED, a Delaware 

corporation, 

Defendant. 

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

SUPPLEMENTAL JOINT CASE 

MANAGEMENT STATEMENT 
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Pursuant to the Court’s November 15, 2017 Case Management Order (ECF No. 308), 

Plaintiff Federal Trade Commission (“FTC”) and Defendant Qualcomm Incorporated 

(“Qualcomm”) (collectively, the “Parties”) have met and conferred and hereby submit this Joint 

Case Management Statement providing an update on Qualcomm’s production. 

I. CASE SCHEDULE 

The Court’s April 19, 2017 Case Management Order (ECF No. 75) sets forth deadlines for 

this litigation, and the November 15, 2017 Case Management Order (ECF No. 308) amends the 

case schedule by adding various interim deadlines. In addition to these dates, and as set forth in the 

Case Management Statement the Parties filed on September 6, 2017, the Parties agreed that 

Qualcomm would substantially complete its production of documents by November 28, 2017, 

which Qualcomm has confirmed to the FTC it has done. 

II. PARTY DISCOVERY 

A. September 2017 Refresh Proposal 

As set out in the parties’ November 8, 2017 Case Management Statement (ECF No. 286), 

Qualcomm believes that recent competitive conditions will be relevant to the defenses it plans to 

assert. After several meet and confer calls about the scope of a “refresh” collection capturing recent 

documents, on November 10, 2017, at the FTC’s request, Qualcomm sent the FTC a written 

proposal for refreshing through September 2017 certain non-custodial document collections, 

including but not limited to marketing plans, price management reports and presentations, product 

roadmaps and strategic plans. Qualcomm also stated that it would refresh the custodial productions 

from the e-mail files of two senior Qualcomm executives who would have documents concerning 

recent competitive conditions in the baseband processor markets alleged by the FTC: Cristiano 

Amon (President, QCT), who heads Qualcomm’s chips and software for mobile devices business, 

and Keith Kressin (Senior Vice President, Product Management, QCT), who manages Qualcomm’s 

roadmap for chips that integrate baseband processors and other components for mobile devices. In 

response, on November 15, 2017, the FTC requested that Qualcomm also refresh through 

September 2017 the collection and production of email files of Paul Jacobs (Qualcomm’s 
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Chairman of the Board); Steve Mollenkopf (Qualcomm’s Chief Executive Officer); Derek Aberle 

(President of Qualcomm Inc.); Alex Rogers (President of Qualcomm Technology Licensing); and 

any other individuals that Qualcomm will call at trial to testify about the time period in question. 

The FTC agreed to limit the custodial searches required for the additional custodians to emails 

only. On December 1, 2017, Qualcomm agreed to refresh the productions of the additional four 

custodians requested by the FTC. 

The Parties have thus reached agreement on the scope of the refresh collection and 

production through September 2017. However, the Parties have been unable to reach agreement on 

a completion date for this production of refresh materials. 

FTC’s Position. Qualcomm has represented that it is able to produce the additional 

documents for Messrs. Amon and Kressin by December 14, 2017,1

 and to produce additional 

documents from Messrs. Jacobs, Mollenkopf, Aberle, and Rogers by December 22, 2017. The 

FTC’s position is that there is no valid reason it should take Qualcomm more than a month to 

produce emails for four custodians, covering a four- to five-month period. Moreover, Qualcomm 

should have anticipated the need to refresh its collection at least as early as October, when it 

demanded documents from the period ending September 30, 2017 from third party Intel 

Corporation, and taken steps to do so. In order to complete its review of Qualcomm’s document 

production and schedule depositions in a timely manner prior to the March 30, 2018 fact discovery 

deadline, the FTC requests that Qualcomm produce any documents from the additional four 

custodians by December 14, 2017, and provide privilege logs for all refreshed custodial 

productions by December 21, 2017.2

The FTC disagrees with Qualcomm’s position set out below that the FTC will not be 

prejudiced by delays in producing additional documents. The parties are already in the process of 

scheduling some depositions of current Qualcomm employees. The refresh productions 

 

1 See November 15, 2017 Case Management Conference Tr. at 23:19-20. 

2

 The FTC has also received reports from third parties that, in the course of their negotiations 

regarding the scope of their subpoena responses, Qualcomm recently requested documents from 

extended time periods, some of which are beyond September 2017. While this issue is not part of 

the parties’ instant dispute, the FTC reserves its right to seek additional discovery. 
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undoubtedly will contain documents authored by or sent to witnesses other than the document 

custodians, including witnesses whose depositions are scheduled to go forward in mid-January. 

Under Qualcomm’s proposal, the FTC may be deprived of the ability to use potentially key 

documents with these witnesses. Moreover, Qualcomm’s “solution” of moving witnesses whose 

documents are produced late to the end of the deposition schedule is no solution at all. Qualcomm 

has identified 17 current employees as potential trial witnesses, and any of those individuals may 

have authored key documents that will be produced as part of the refresh.3

 It is for this very reason 

that a substantial completion deadline was necessary: the FTC must have access to Qualcomm’s 

entire production—not simply individual custodial productions—before proceeding with 

depositions generally. While, as noted by Qualcomm below, the FTC requested that the first five 

depositions scheduled occur no earlier than two weeks following Qualcomm’s completion of 

production of those witnesses’ custodial documents in the interest of expediting the scheduling 

process, this request was specific to those individuals and was not to be applied on a global basis 

where a large number of documents authored by or sent to a particular witness typically exist 

outside that witness’s custodial files. 

Moreover, the parties have identified well over 50 third party witnesses.4

 Because the 

Stipulated Order Re: Discovery of Electronically Stored Information (ECF No. 142) allows the 

parties to object to any third party deposition scheduled within 30 days of the third party’s 

substantial completion of its document production, most of the third party depositions cannot begin 

until February.5 The FTC will be prejudiced if it is forced to choose between taking virtually all of 

 

3

 Qualcomm has also identified six former employees as potential trial witnesses. The FTC has 

asked for deposition dates for those individuals, but Qualcomm has not provided any dates yet and 

has not committed to producing those witnesses early in the deposition period. 

4

 This estimate is based on the parties’ agreement to make reasonable efforts to identify the specific 

individuals each believes in good faith it is reasonably likely to rely upon at trial, and their 

exchange of that information on December 4, 2017. As part of its list, the FTC identified 46 

individuals that are current or former employees of third parties. For its part, Qualcomm identified 

58 individuals that are current or former employees of third parties, and stated that it intended to 

notice a number of 30(b)(6) depositions and is likely to add additional witnesses. There is some 

overlap between the parties’ lists. 

5

 The refresh productions may also include documents regarding Qualcomm’s negotiations with 

third parties. 
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the depositions of seventy-five witnesses in a sixty-day period or taking some depositions without 

having adequate time to review the witness’s documents. 

Qualcomm’s Position. Qualcomm is working as quickly as possible to collect, process and 

review the documents from the refresh custodians. For example, Qualcomm began this process for 

Messrs. Jacobs, Mollenkopf, Aberle and Rogers on November 16, one day after the FTC first 

requested that Qualcomm refresh the productions from those custodians’ emails. Qualcomm 

conducted the refresh collections on a high-priority basis, even while Qualcomm attorneys and 

discovery professionals were hard at work to meet the November 28 substantial completion date for 

the production of documents from the previously agreed time periods (which ultimately constituted 

a production of over 1.2 million documents). As Qualcomm has explained to the FTC, however, 

the collection and processing of these individuals’ emails require the involvement of several 

professionals in Qualcomm’s IT Department and at its external e-discovery vendor. Though these 

refresh collections represent a smaller volume of data relative to the amount of data that Qualcomm 

has previously processed and produced in this case, the collection and processing protocol remains 

the same and takes as much as two to three weeks before documents are ready for review, 

depending on the volume of other collections being processed in parallel. Qualcomm expects that 

the processing of documents of Messrs. Jacobs, Mollenkopf, Aberle and Rogers will be completed 

tonight or tomorrow morning. Additional time will then be needed to review these documents and 

to prepare them for production. Qualcomm therefore believes it will be in a position to produce the 

documents from the custodial files of Messrs. Amon and Kressin (which had been identified by 

Qualcomm as refresh custodians five days prior to the FTC’s November 15 letter) by 

mid-December, and to produce the documents from the files of the other four custodians no later 

than December 22, 2017. But due to the time that was necessary for electronic processing of the 

documents, Qualcomm cannot, based on the information currently available to it, responsibly 

commit to producing the documents any earlier than those dates, particularly given the 

simultaneous competing demands on its review team for this case and the related litigation in the 

Southern District of California. 

Importantly, the FTC will not be prejudiced in any way by the timing of Qualcomm’s 
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refresh production. The FTC recently requested that the depositions of the six refresh 

custodians—as well as 17 other current and former Qualcomm employees—be scheduled for 

between January 8 and March 9, 2018.6 Thus, the depositions of the additional four refresh 

custodians requested by the FTC can be conducted during the window requested by the FTC, and 

the FTC would still have several weeks to review the update productions before proceeding with 

those depositions. If the FTC prefers, it can take the depositions at any point through the end of 

March 2018 and then have up to three months with the refresh documents.7

 And while the FTC 

appears to complain that Qualcomm has identified an excessive number of witnesses, the FTC itself 

has designated 46 third-party witnesses upon whom it asserts it is reasonably likely to rely at trial. 

The Parties thus have many other depositions to conduct while Qualcomm completes, and the FTC 

reviews, the refresh productions. 

B. Proposal for Subsequent Refresh Productions Closer to Trial 

In addition to the September 2017 refresh described above, Qualcomm believes that the 

Parties should have the mutual opportunity to conduct a limited update of document and deposition 

discovery closer to the time of trial to ensure that the record contains necessary contemporaneous 

evidence bearing on elements of the FTC’s claims (e.g., market power) and whether the FTC is 

entitled to forward-looking injunctive relief. The FTC disagrees that, based on the allegations in its 

Complaint, it will inevitably be necessary to reopen discovery. The FTC’s position is that whether 

the Court should, in its discretion, reopen discovery at some later date based on events that have not 

 

6

 The FTC’s complaint in footnote 3 above, regarding the scheduling of Qualcomm witnesses for 

deposition, is unwarranted. The parties’ Joint Stipulation and Discovery Coordination Order (ECF 

No. 207) establishes a process for the scheduling of depositions, which Qualcomm has followed 

and will continue to follow. Pursuant to that process, Qualcomm has already scheduled the 

depositions of the first five individuals requested by the FTC, the first of which will begin on 

December 19. On December 1 and 4, the FTC requested Qualcomm to provide it with deposition 

dates falling between January 8 and March 9, 2018, for 23 additional Qualcomm employees and 

former employees (including the six refresh custodians). Qualcomm is working to determine these 

individuals’ schedules and will provide proposed deposition dates by no later than the date required 

by the Coordination Order. 

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 The FTC has requested that depositions of Qualcomm employees not be scheduled until at least 

14 days after Qualcomm has substantially completed the production of documents from such 

employees’ files. 
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yet occurred will depend on the relevance of the additional discovery, the time to trial, and whether 

a party will be prejudiced, among other factors. 

The Parties have agreed to meet and confer regarding the need for a further refresh of 

discovery closer to trial and the scope of any such refresh. 

Dated: December 8, 2017 

 Respectfully submitted, 

FEDERAL TRADE COMMISSION, 

 /s/ Jennifer Milici ________________ 

Jennifer Milici 

Wesley G. Carson 

J. Alexander Ansaldo 

Joseph R. Baker 

Elizabeth A. Gillen 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

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

jmilici@ftc.gov 

Attorneys for Federal Trade Commission

CRAVATH, SWAINE & MOORE LLP, 

/s/Gary A. Bornstein 

Gary A. Bornstein

Yonatan Even 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 
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SUPP

.JOINT CASE MANAGEMENT STATEMENT

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Robert A. Van Nest Asim M. Bhansali Eugene M. Paige KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111 

Tel: (415) 676-2289 

Fax: (415) 397-7188 

rvannest@keker.com 

abhansali@keker.com 

epaige@keker.com 

Richard S. Taffet MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178-0060 

Tel: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

Willard K. Tom MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Ave. NW 

Washington, DC 20004-2541 

Tel: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Donn P. Pickett Geoffrey T. Holtz MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1126 

Tel: (415) 442-1000 

Fax: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 
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FILER’S ATTESTATION 

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

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

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

 

/s/Gary A. Bornstein 

 Gary A. Bornstein