JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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 

JOINT CASE MANAGEMENT 

STATEMENT 

DATE: January 24, 2018 

TIME: 2:00 PM PST 

CTRM: Courtroom 8 

JUDGE: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 1 of 17
1 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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

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

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

Case Management Statement. 

I. CASE SCHEDULE 

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

this litigation. The November 15, 2017 Case Management Order (ECF No. 308) and December 23, 

2017 Case Management Order (ECF No. 389) supplemented the case schedule, including by 

adding certain interim deadlines. 

II. MOTIONS 

Since filing the November 8, 2017 Joint Case Management Statement (ECF No. 196), the 

Parties have engaged in the following motion practice: 

A. Qualcomm’s Discovery Disputes with the FTC Regarding Privilege Issues 

The Parties submitted several discovery disputes to Magistrate Judge Cousins regarding 

Qualcomm’s privilege review. 

FTC’s Position. On December 14, 2017, the Parties submitted two joint discovery 

statements, ECF 395 and ECF 396. ECF No. 395 addressed the results of Qualcomm’s 

Court-ordered re-review of approximately 3,300 documents previously withheld or redacted based 

on claims of attorney-client privilege.1

 Because Qualcomm withdrew more than 1,100 privilege 

claims following this re-review,2 the FTC asked Magistrate Judge Cousins to order Qualcomm to 

re-review additional withheld and redacted documents involving the same custodians. (Qualcomm 

and the MDL plaintiffs filed a discovery statement addressing the substantive importance of the 

non-privileged documents Qualcomm produced as a result of its re-review; In re Qualcomm 

Antitrust Litigation, No. 17-md-02773-LHK-NMC (N.D. Cal.) (the “MDL Action”), ECF 

 

1

 On November 6, 2017, Magistrate Judge Cousins ordered Qualcomm to re-review approximately 

3,300 withheld or redacted documents, and to produce non-privileged documents. (See ECF 

No. 274.) 

2

 After completing its re-review of these documents, Qualcomm acknowledged that more than 

1,100 of its privilege claims were erroneous, and on November 30, 2017 produced 1,770 

documents either without redactions or in less-redacted form. 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 2 of 17
2 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

No. 223.) Following a December 20, 2017 hearing, Magistrate Judge Cousins ordered Qualcomm 

to re-review 1,000 additional documents identified by the FTC and the MDL plaintiffs, and 

“produce amended logs and any non-privileged documents identified” by January 8, 2018. 

(ECF No. 421.) On January 8, 2018, Qualcomm admitted that 382 of the 1,000 challenged log 

entries erroneously asserted privilege over non-privileged material. Qualcomm withdrew those 

privilege assertions and produced 624 additional non-privileged documents. The FTC intends to 

seek further relief from Magistrate Judge Cousins to address this issue, and is coordinating with the 

MDL plaintiffs to identify an appropriate form of relief. 

ECF No. 396 addressed a document with respect to which Qualcomm did not withdraw its 

privilege claim as a result of its re-review process. The FTC asserted that the privilege claim was 

demonstrably false, based on a different version of the document produced without redactions, and 

requested that Qualcomm provide a privilege log for any documents that were part of Qualcomm’s 

privilege re-review that Qualcomm had redacted for privilege.3

 On December 14, 2017, Qualcomm 

withdrew its privilege claim over the disputed document. On December 21, 2017, Magistrate Judge 

Cousins denied the FTC’s request. (ECF No. 421.) 

The FTC filed a Motion for Relief from Magistrate Judge’s Nondispositive Pretrial Order 

Regarding Qualcomm’s Privilege Assertion with respect to Magistrate Judge Cousins’s decision 

not to examine content redacted from a slide presented to a Special Committee of Qualcomm’s 

Board of Directors. (ECF No. 334.) On January 8, 2018, the FTC’s motion was deemed denied 

pursuant to Civil Local Rule 72-2. 

Qualcomm’s Position. The Parties submitted two successive rounds of joint discovery 

statements to Magistrate Judge Cousins concerning (i) the FTC’s request that Qualcomm provide a 

log for nearly 40,000 partially redacted documents that Qualcomm produced to the FTC in 2016 

(during the pre-Complaint investigation) (ECF No. 249, filed by the FTC on October 30, 2017; 

ECF No. 396, filed by the FTC on December 14, 2017), and (ii) the FTC’s request that Qualcomm 

re-review over 25,000 documents for privilege (ECF No. 248, filed by the FTC on October 30, 

 

3

 On November 6, 2017, Magistrate Judge Cousins had denied the FTC’s request that Qualcomm 

log all of its redacted documents. (ECF No. 274.) 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 3 of 17
3 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

2017; ECF No. 395, filed by the FTC on December 14, 2017). As reported by the Parties in the 

November 8, 2017 Joint Case Management Statement, on November 6, 2017, Magistrate Judge 

Cousins (i) denied the FTC’s first request for a log of redacted documents, and (ii) denied the 

FTC’s first request to order Qualcomm to re-review over 25,000 documents, ordering instead that 

by November 30, 2017, Qualcomm re-review 3,571 document families selected by the FTC that 

were likely to pose the most challenging privilege determinations in Qualcomm’s production. 

(ECF No. 274.) These document families were selected by the FTC through a process that the FTC 

described as having been intended to identify documents sent by five of Qualcomm’s licensing 

executives—four of whom are lawyers—to certain other Qualcomm executives, while excluding 

certain clearly privileged documents such as documents sent to outside litigation counsel. (See 

ECF No. 395, Ex. A (Decl. of J. Alexander Ansaldo).) 

On December 14, 2017, citing a single partially redacted document, an unredacted duplicate 

of which Qualcomm had previously produced to the FTC elsewhere in its production, the FTC 

moved again to compel Qualcomm to provide a log for the nearly 40,000 documents Qualcomm 

produced in partially redacted form during the pre-Complaint investigation. (ECF No. 396.) 

Magistrate Judge Cousins again denied the FTC’s request “for lack of good cause, consistent with 

the Court’s earlier order”. (ECF No. 421.) 

Also on December 14, citing the results of Qualcomm’s re-review of the 3,571 document 

families that the FTC originally selected, the FTC again moved to compel Qualcomm to re-review 

over 25,000 more documents from the files of Qualcomm’s licensing personnel. Qualcomm 

objected to the need for such re-review but, as a compromise, proposed to re-review 1,000 

additional documents of the FTC’s choice. On December 21, 2017, Magistrate Judge Cousins 

denied the FTC’s request and accepted Qualcomm’s compromise proposal, ordering it to re-review 

1,000 documents of the FTC’s (and the MDL plaintiffs’) choosing by January 8, 2017. (ECF 

No. 421.) Qualcomm has timely completed this re-review. Qualcomm disagrees with the FTC’s 

portrayal above of the results of this re-review, but the parties will meet and confer on the issue and 

present any dispute to Magistrate Judge Cousins. 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 4 of 17
4 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

B. Qualcomm’s Discovery Dispute with the FTC Regarding Interrogatories 

On December 30, 2017, the Parties submitted a joint discovery statement concerning the 

FTC’s responses to interrogatories served by Qualcomm. The FTC contended that Qualcomm’s 13 

interrogatories contain discrete subparts involving separate and distinct inquiries; that Qualcomm 

thus exceeded the number of permissible interrogatories under the April 12, 2017 Case 

Management Statement; and that the FTC was therefore under no obligation to answer 6 of the 13 

interrogatories propounded by Qualcomm. Qualcomm contended that its interrogatories did not 

exceed the permitted limit of 20 interrogatories and sought answers to the interrogatories to which 

the FTC had objected as beyond the limit. (ECF No. 434.) On December 31, 2017, Magistrate 

Judge Cousins ordered the FTC to respond to all of Qualcomm’s interrogatories and their subparts 

by January 8, 2018, which the FTC did. (ECF No. 435.) Qualcomm believes the FTC’s amended 

responses are deficient in certain ways. The parties continue to meet and confer regarding the 

FTC’s responses and will submit a dispute to the Court if they cannot reach agreement. 

C. Qualcomm’s Discovery Disputes with Apple 

Qualcomm and Non-Party Apple Inc. (“Apple”) submitted three discovery disputes to 

Magistrate Judge Cousins regarding Apple’s document production. 

Qualcomm’s Position. First, on November 9, 2017, Qualcomm and Apple submitted a 

joint discovery statement regarding Apple’s proposed use of technology-assisted review (“TAR”), 

which Apple raised for the first time on November 3, 2017. Qualcomm argued that Apple’s 

proposal (i) was untimely because it followed three months of negotiations and two rounds of 

motion practice regarding Apple’s use of search terms, (ii) was inconsistent with Magistrate Judge 

Cousins’s October 18, 2017 Order (ECF No. 239) (the “October 18 Order”), which required Apple 

to conduct a review of all documents that had hit on search terms proposed by Qualcomm and to 

produce by December 15, 2017 all responsive documents identified through that review, and 

(iii) was methodologically improper for various reasons. (ECF No. 287.) After a hearing on 

November 15, 2017, Magistrate Judge Cousins (a) denied Apple’s request to reconsider the 

October 18 Order, (b) authorized Apple to use TAR if it could “satisfy Qualcomm and the Court 

that the results of this process are as accurate and timely as what the Court already ordered”, and 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 5 of 17
5 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(c) directed Apple to “be transparent with the Court and Qualcomm as to its use of a TAR process”. 

(ECF No. 315.) 

Second, on November 20, 2017, following Apple’s failure to comply with a production 

milestone in the October 18 Order (ECF No. 239), Qualcomm filed a discovery statement seeking 

the Court’s assistance, including the imposition of certain interim production deadlines. (ECF 

No. 320.) After receiving a response from Apple (ECF No. 327) and holding a hearing on 

November 27, 2017, Magistrate Judge Cousins reaffirmed the discovery deadlines in the 

October 18 Order but denied Qualcomm’s request for additional interim production deadlines. 

(ECF No. 336). Magistrate Judge Cousins also entered a stipulated Order pursuant to Federal Rule 

of Evidence 502(d) allowing Apple to produce documents without manual review and without 

waiving attorney-client or other privileges (and Apple accordingly has made the majority of its 

document production without manual review). (ECF No. 353.) 

Third, on December 16, 2017, Qualcomm and Apple submitted a joint discovery statement 

regarding (i) Apple’s failure to comply with the December 15, 2017 deadline, set forth in the 

October 18 Order, to substantially complete its document production, and (ii) Apple’s refusal to 

include on its privilege log post-Complaint communications with other entities, including the FTC 

and the named plaintiffs in the MDL Action, which Apple claimed to be protected by the common 

interest doctrine. (ECF No. 404.) Following a hearing on December 20, 2017, Magistrate Judge 

Cousins (a) ordered that Apple complete its production of a set of 1.3 million documents identified 

by Apple by a revised date of December 29, 2017, (b) found that Apple was in breach of the 

October 18 Order, which had set a deadline of December 15, 2017 for substantial completion of 

Apple’s production, and imposed a sanction of $25,000 per day beginning on December 16, 2017, 

until document production was complete, and (c) ordered that Apple complete its review of 

potentially privileged documents by December 29, 2017, which was the date set for service of its 

privilege log, and produce documents that were initially deemed privileged but later deemed to be 

non-privileged by January 2, 2018. (ECF No. 421 (the “December 21 Order”).)4

 Magistrate Judge 

 

4

 At the Court’s direction, Apple and Qualcomm filed a joint status report on December 29, 2017 

concerning Apple’s document review and production efforts. During a follow-up hearing on 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 6 of 17
6 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Cousins further ordered that Apple was not required to log post-Complaint documents withheld 

pursuant to an assertion of the common interest doctrine. (ECF No. 421.) 

On January 3, 2018, Apple filed a motion with the Court for relief from Magistrate Judge 

Cousins’s sanctions order. (ECF No. 445.) On January 12, 2018, the Court entered a briefing 

schedule on Apple’s motion and set a hearing for February 15, 2018. (ECF No. 480.) 

FTC’s Position. The FTC takes no position on whether Qualcomm’s summary of this 

dispute is complete or accurate. 

D. Qualcomm’s Discovery Disputes with the CMs 

Qualcomm’s Position. On November 18, 2017, Qualcomm and Non-Parties Compal 

Electronics, Inc., FIH Mobile Ltd., Hon Hai Precision Industry Co., Ltd., Pegatron Corporation and 

Wistron Corporation (collectively, the “CMs”) submitted a joint discovery statement concerning 

custodians and search terms governing the CMs’ document production. Qualcomm argued that the 

CMs’ delay in identifying custodians and their unreasonably restrictive proposed search terms were 

denying Qualcomm access to evidence critical to its defense. The CMs responded that Qualcomm 

was not entitled to additional custodians and that its search terms were overbroad. (ECF No. 319.) 

After a hearing on November 30, 2017, Magistrate Judge Cousins (i) denied Qualcomm’s requests 

to compel production of documents from the files of additional custodians and to compel the use of 

broader search terms, (ii) ordered Qualcomm and the CMs to further meet and confer, and 

(iii) ordered Qualcomm and the CMs to file an updated status report by December 4, 2017. 

(ECF No. 356.) Qualcomm and the CMs filed status reports on December 4, 2017 (ECF No. 370), 

and again on December 7 (ECF No. 375), December 12 (ECF No. 387), December 27 (ECF 

No. 425) and December 29 (ECF No. 433). At a hearing on January 2, 2018, Magistrate Judge 

 

January 5, 2018, Magistrate Judge Cousins ordered Qualcomm and Apple to file a further joint 

status report by January 12, 2018 regarding Apple’s document production, the status of discussions 

regarding Apple’s privilege log and the scheduling of depositions of Apple witnesses. 

(ECF No. 450.) Magistrate Judge Cousins also ordered Qualcomm to provide by January 12, 2018 

its opinion on whether and, if so, when Apple complied with the production obligations in the 

December 21 Order so as to stop the running of the sanctions, and ordered Apple to file a response 

by January 19, 2018. (ECF No. 450.) Qualcomm and Apple timely made the required January 12 

filings. (ECF Nos. 482, 483.) 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 7 of 17
7 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Cousins ordered a compromise under which the CMs would withdraw one custodian and run eight 

of eleven disputed search strings. (ECF No. 439) Magistrate Judge Cousins also ruled on certain 

searches for non-custodial documents. (Id.)

5

 

On January 13, 2018, the CMs moved to extend the time for them to complete document 

production from January 5, 2018 to February 9, 2018 for their original 27 custodians and to 

February 16, 2018 for their remaining six custodians. (ECF No. 484.) Qualcomm opposes the 

CMs’ motion, and its response is due on January 17, 2018; the FTC and the MDL plaintiffs do not 

oppose the CMs’ motion. (Id.) Also on January 13, Qualcomm and the CMs submitted a joint 

discovery statement to Magistrate Judge Cousins regarding the CMs’ document productions. (ECF 

No. 485.) Qualcomm seeks an order directing the CMs to complete document production by 

January 19, 2018 and seeking sanctions for the CMs’ failure to comply with the Court’s order that 

third parties to this action complete document production by January 5, 2018. (Id.) 

FTC’s Position. The FTC takes no position on whether Qualcomm’s summary of this 

dispute is complete or accurate. 

E. Qualcomm’s Discovery Disputes with LGEMU 

Qualcomm’s Position. On November 28, 2017, Qualcomm and Non-Party LG Electronics 

MobileComm U.S.A., Inc. (“LGEMU”) submitted a joint discovery statement in which Qualcomm 

sought discovery of an unredacted complaint for infringement of cellular standard essential patents 

(and resulting settlement thereof) that LGEMU and its parent, LG Electronics, Inc. (“LGE”), had 

filed with the U.S. International Trade Commission against BLU Products, Inc. and CT Miami LLC 

(collectively, “BLU”) in the case captioned In re Certain LTE Wireless Communications Devices 

and Components Thereof, Inv. No. 337-TA-1051. LGEMU refused to produce the documents, 

asserting that they were neither relevant nor in LGEMU’s possession, custody and/or control. 

(ECF No. 343.) After a hearing, on November 30, 2017, Magistrate Judge Cousins found that the 

documents are relevant and ordered Qualcomm, LGEMU and BLU to further meet and confer. 

(ECF No. 356.) On December 11, 2017, Qualcomm informed the Court that BLU had agreed to 

 

5

 On January 16, 2018, the CMs filed a motion with the Court for relief from the portion of 

Magistrate Judge Cousins’s order requiring the use of one of the disputed search terms. 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 8 of 17
8 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

produce the documents at issue. (ECF No. 381.) 

FTC’s Position. The FTC takes no position on whether Qualcomm’s summary of this 

dispute is complete or accurate. 

III. COORDINATION WITH RELATED CASES 

Negotiations are ongoing between the Parties, counsel in the MDL Action, and plaintiffs in 

In re Qualcomm Litigation, No. 17-cv-0108 (S.D. Cal.) (the “Southern District Action”), with 

respect to coordination of discovery in this case, the MDL Action, and the Southern District Action. 

The proposed coordination order will provide procedures for coordinated written and deposition 

discovery, the service of unredacted pleadings and motions, and protection of confidential 

information. The parties have reached an agreement in principle on the terms, and anticipate 

executing the proposed order this week and submitting it to this Court and to Judge Curiel in the 

Southern District Action for approval. 

IV. PARTY DISCOVERY 

A. Document Discovery 

Both the FTC and Qualcomm have substantially completed their respective document 

productions, and on December 19, 2017 exchanged privilege logs. 

In response to the Parties’ Supplemental Case Management Statement of December 8, 

2017, describing a dispute between the Parties regarding when Qualcomm should be required to 

make its supplemental document production from certain custodians relevant to current 

competitive conditions, the Court ordered Qualcomm to produce (i) the additional documents from 

the e-mail files of Messrs. Cristiano Amon and Keith Kressin by December 14, 2017, (ii) the 

additional documents from the e-mail files of Messrs. Derek Aberle, Paul Jacobs, Steve 

Mollenkopf and Alex Rogers by December 18, 2017, and (iii) the privilege log for these refreshed 

productions by December 21, 2017. (ECF No. 389.) Qualcomm complied with the Court’s 

deadlines. As of January 17, 2018, Qualcomm has made 22 productions, totaling 1,387,169 

documents, in response to the FTC’s post-Complaint requests for production. 

B. Written Discovery 

On November 14, 2017, Qualcomm served its first set of interrogatories on the FTC; the 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 9 of 17
9 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

FTC provided its responses and objections on December 14, 2017, and its amended responses and 

objections on January 8, 2018. (See supra Section II.B.) 

C. Depositions 

As of January 17, 2018, the FTC has requested the depositions of 30 current or former 

Qualcomm employees, and the parties have agreed on dates for all but one of those depositions. 

Four such depositions have taken place. 

V. THIRD-PARTY DISCOVERY 

A. Document Production 

In its November 15, 2017 Case Management Order, the Court set a deadline of 

December 15, 2017 to brief disputes regarding third-party production, and a deadline of January 5, 

2018 for third parties to complete their document productions. (ECF No. 308). On December 15, 

2017, Qualcomm filed a status report confirming that it had concluded negotiations with the vast 

majority of the 55 third parties that had been subpoenaed, and identified the third parties for whom 

negotiations had not concluded and the circumstances that prevented such conclusion. 

(ECF No. 402.) 

As of January 17, 2018, the vast majority of third parties subpoenaed have substantially 

completed their document productions in this case. Certain third parties have not yet substantially 

completed document discovery, including as discussed in Section II above and Section V.D below, 

and the Parties are conferring with each other and with those third parties. The Parties do not 

expect that other third parties’ failures thus far to complete their productions will have an effect on 

the Court’s schedule or otherwise require intervention by the Court.6

B. Depositions 

As of January 17, 2018, notice pursuant to Section 8 of the Coordination Order (ECF 

 

6

 In the January 12, 2018 status report to Magistrate Judge Cousins regarding Apple’s document 

production, Qualcomm identified serious concerns with Apple’s privilege log and the extent to 

which, in Qualcomm’s view, Apple has withheld from production documents that should have been 

produced. To the extent that Apple belatedly produces documents that should not have been 

withheld, it is possible that Qualcomm may need to seek permission to depose Apple witnesses on 

the belatedly produced documents after the scheduled close of fact discovery. 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 10 of 17
10 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

No. 207) has been provided for the depositions of 58 individuals, as well as three corporations 

pursuant to Federal Rule of Civil Procedure 30(b)(6). 

C. Hague Requests 

On January 5, 2018, the FTC submitted a Hague Request for a deposition from LGE 

(ECF No. 448), which request Magistrate Judge Cousins granted on January 9, 2018 (ECF 

No. 460). Qualcomm intends promptly to submit a Hague Request for document production from 

LGE. LGE has produced no documents during this litigation. On January 10, 2018, Qualcomm 

submitted a Hague Request for a deposition from Nokia Corporation and Nokia Technologies OY 

(together, “Nokia”). 

D. Other Issues Regarding Foreign Discovery 

Qualcomm contends that Huawei Device Co. Ltd. (“Huawei”), a Chinese company that is a 

competitor, customer and licensee of Qualcomm, has refused to provide meaningful document 

discovery. As a result, Qualcomm has requested that the parties remove all Huawei witnesses from 

their respective Rule 26 disclosures and preliminary witness lists. The FTC’s position is that it is 

premature to assess the admissibility of testimony of Huawei witnesses. The parties are preparing a 

joint discovery statement on this issue for submission to Magistrate Judge Cousins. 

VI. STATUS OF MEET AND CONFER DISCUSSIONS 

To date, the Parties have met and conferred at least 25 times concerning the scope of 

discovery, trial preparation, and scheduling issues, including the following issues: 

A. Deposition Limits 

As reported in the November 8, 2017 Joint Case Management Statement (ECF No. 196), the 

parties agreed to make reasonable efforts to narrow and amend their respective Rule 26(a) 

disclosures to include only the specific individuals each party believes in good faith it is reasonably 

likely to rely upon at trial. 

Since that time, Qualcomm provided the FTC with an amended Rule 26 Disclosure listing 

specific individuals Qualcomm believed in good faith it is reasonably likely to rely upon at trial, 

identifying 17 current Qualcomm employees, 6 former Qualcomm employees, 58 individual 

third-party witnesses and 15 Rule 30(b)(6) third-party witnesses. Because at the time Qualcomm 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 11 of 17
11 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

had not yet received sufficient document productions from dozens of third parties, Qualcomm also 

identified 23 additional individuals from whom it expected to receive custodial files, and reserved 

its right to supplement its disclosures from among these individuals upon review of their 

documents. 

The FTC provided Qualcomm with a list of the specific individuals it believes in good faith 

it is reasonably likely to rely upon at trial, identifying 7 current or former Qualcomm employees 

and 46 individual third-party witnesses. On December 6, 2017, the Parties met and conferred and 

agreed to continue narrowing their respective lists in January 2018. On January 12, 2018, the FTC 

provided Qualcomm with an amended list, stating that it believes in good faith it is reasonably 

likely to rely upon the same 7 current or former Qualcomm employees, an updated list of 34 

individual third-party witnesses, and any other witness whose deposition is taken in this action. 

Qualcomm is working on narrowing its own list and expects to provide the FTC with a narrower list 

of individuals shortly. 

The Parties have agreed in principle to set certain limits on the number of depositions in this 

action, as follows: 

 The Parties agree that, going forward, only depositions noticed in this action will be deemed 

to have been taken in this action. 

 Each Party will not notice more than an agreed-to number of additional depositions of fact 

witnesses, beyond the depositions already discussed between the Parties in the FTC case. 

For the avoidance of doubt, the depositions “discussed between the Parties” in the FTC case 

include, among others, the Qualcomm witnesses for whom the Parties have discussed 

scheduling depositions, the Hague convention deposition notices for LGE and Nokia, the 

third-party witnesses identified in emails from Qualcomm counsel to the FTC and MDL 

plaintiffs’ counsel on December 6, 2017, December 29, 2017 and January 17, 2018, and 

notices of Rule 30(b)(6) depositions shared between the Parties. Cross notices do not count 

against this limit. Neither Party will oppose reasonable substitutions of a small number of 

deponents, upon providing reasonable notice to the other Party, and such substitutions will 

not count as “additional depositions”. The FTC takes the position that substituting one 

witness for another is unlikely to constitute a “reasonable substitution” unless the 

substituted witness is a current or former employee of the same entity as the witness for 

whom he or she is substituted. Qualcomm believes that the reasonableness of any 

substitution should be reviewed in context rather than in the abstract, and expects that the 

parties will meet and confer about substitutions should the need arise. 

 To the extent neither Party takes the deposition in this action of any individual identified by 

name as of January 31, 2018 on either Party’s witness list, and such individual is 

subsequently identified by name on a Party’s final trial witness list or provides a Party with 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 12 of 17
12 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

a sworn declaration, such Party will not oppose a request for permission by the other Party 

to conduct an out of time deposition of such individual. This provision does not apply to 

current or former Qualcomm employees identified on either Party’s witness list as of 

January 31, 2018. 

 Each Party reserves the right to oppose the supplementation of the other Party’s witness list 

or the provision by the other Party of a sworn declaration from a witness not identified on 

that Party’s witness list as of January 31, 2018. This provision does not apply to any 

individual deposed in this action. 

The Parties continue to meet and confer regarding the number of additional depositions 

to be permitted for each party as described in the second bullet point above (the FTC proposes 10, 

Qualcomm proposes 20), and will submit a dispute to the Court if they cannot reach agreement. 

B. Division of Deposition Time 

The Parties have met and conferred with each other, and intend to meet and confer also with 

Apple, the CMs and the MDL plaintiffs, regarding the appropriate division of deposition time for 

depositions of Apple, the CMs, and other third-party witnesses. The FTC proposed that for 

depositions noticed by Qualcomm and one or more plaintiff party (the FTC, MDL Plaintiffs, Apple, 

or the CMs), participating plaintiffs should collectively be allotted no more than half the deposition 

time, and Qualcomm should be allotted no more than half the deposition time. Qualcomm and the 

FTC are discussing this proposal with the MDL Plaintiffs, Apple, and the CMs and will submit a 

dispute to the Court if they cannot reach agreement.

C. Financial Data Maintained by Qualcomm 

The Parties continue to discuss and exchange correspondence regarding the financial data 

maintained by Qualcomm and the proper scope of financial data production in this case. The 

parties will continue to meet and confer and will submit a dispute to the Court if they cannot reach 

agreement. 

D. Trial Time 

Qualcomm has suggested that the Parties continue to discuss the appropriate time they 

believe it will take to try this case. The FTC’s position is that further discussions regarding trial 

time are premature. 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 13 of 17
13 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

VII. ADR 

On September 12, 2017, the parties engaged in an ADR Phone Conference. The next ADR 

conference is scheduled for February 20, 2018. 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 14 of 17
14 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Dated: January 17, 2018 

 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 

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 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 15 of 17
15 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Donn P. Pickett 

Geoffrey T. Holtz 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1126 

Tel: (415) 442-1000 

Fax: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 16 of 17
16 JOINT CASE MANAGEMENT STATEMENT

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

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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

 

 

Case 5:17-cv-00220-LHK Document 496 Filed 01/17/18 Page 17 of 17