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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC

BOIES SCHILLER FLEXNER LLP

William A. Isaacson (Pro Hac Vice App. to be 

filed) 

DC Bar No. 414788, wisaacson@bsfllp.com 

Karen L. Dunn (Pro Hac Vice App. to be 

filed) 

DC Bar No. 1002520, kdunn@bsfllp.com 

Amy J. Mauser (Pro Hac Vice App. to be 

filed) 

DC Bar No. 424065, amauser@bsfllp.com 

1401 New York Avenue, N.W. 

Washington, DC 20005 

Telephone: (202) 237-2727 

Facsimile: (202) 237-6131 

BOIES SCHILLER FLEXNER LLP 

Edward H. Takashima, SBN 270945 

etakashima@bsfllp.com 

401 Wilshire Blvd, Suite 850 

Santa Monica, CA 90401 

Telephone: (310) 752-2400 

Facsimile: (310) 752-2490 

Attorneys for Non-Party APPLE INC. 

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, NY 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest, SBN 84065 

rvannest@keker.com 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 676-2289 

Facsimile: (415) 397-7188 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

Attorneys for Defendant 

QUALCOMM INCORPORATED

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION

Plaintiff, 

v. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

Defendant. 

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

NON-PARTY APPLE INC. AND 

DEFENDANT QUALCOMM 

INCORPORATED’S JOINT STATUS 

REPORT 

Courtroom: 7, 4th Floor 

Judge: Hon. Nathanael M. Cousins 

IN RE QUALCOMM ANTITRUST 

LITIGATION 

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

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 1 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC

Pursuant to the Court’s February 5, 2018 docket entry, Non-Party Apple Inc. (“Apple”) 

and Defendant Qualcomm Incorporated (“Qualcomm”) submit this Joint Status Report to update 

their January 12, 2018 Joint Status Report (ECF 482). 

I. Apple’s Document Production 

A. Apple’s Position 

To date, Apple has produced more than 3.9 million documents totaling over 34 million 

pages. 

Apple’s anticipated document production is complete, with the following exceptions: 

(1) Approximately 3,500 documents have not been produced due to potential third 

party notice/consent issues. Notice and consent issues are being resolved for those 

documents. Apple anticipates it will be able to resolve those issues and produce 

these documents by February 28, 2018. All responsive non-privileged documents 

that were being withheld due to third party notice/consent issues as of January 12, 

2018 have cleared the notice/consent process and have been produced. The 

remaining documents consist of documents that were previously on Apple’s 

privilege logs but have been downgraded for production. 

(2) One written common interest agreement has not been produced pursuant to an 

objection from the other party to the agreement. That agreement is the subject of a 

joint discovery statement and has been submitted for in camera review. (ECF 

536). 

(3) Apple has obtained access to an email repository belonging to Aaron Schafer that 

was previously inaccessible. Apple is in the process of searching and reviewing 

files from that repository and will produce responsive non-privileged documents as 

soon as possible. Apple anticipates that it will be able to produce these documents 

by February 14, 2018. 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 2 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC

(4) Apple will be downgrading some documents from its privilege logs, and will 

produce any such downgrades that are responsive and non-privileged on a rolling 

basis. 

B. Qualcomm’s Position 

When Qualcomm sought a substantial completion deadline for Apple’s document 

production, one of its concerns was that there would continue to be documents that were not 

produced as of the deadline, which would need to be the subject of continued meeting and 

conferring, and potentially disputes before the Court, into January and February 2018 – and “with 

the completion date that Judge Koh has set for fact discovery, that puts us very tight up against 

the wall”. (10/11/2017 Hrg. Tr. 7:22-8:10.) Because of Apple’s failures to comply with the 

Court’s orders on the timing of document production and the service of a privilege log, those 

concerns have come to pass. With just seven weeks left in the fact discovery period—in which 

eight depositions of Apple witnesses will be taken—Qualcomm still does not have a complete 

production, and there appear to be a meaningful set of documents that Apple has yet to produce. 

Tracking the categories of documents identified by Apple: 

i. Apple’s Documents Withheld for “Third Party Consent”. 

At the January 5 hearing, Apple represented that it had “about five or six documents 

literally” that it had withheld due to pending third party notice/consent issues. (1/5/2018 Hrg. Tr. 

6:23-24.) In the January 12 Status Report, the number increased to approximately 1,000 

documents. Apple now reports that the number of withheld documents has grown to 

“[a]pproximately 3,500”. During meet and confer discussions, Apple represented that the notice 

period to third parties would expire on January 31, after which Apple would produce the 

documents or advise Qualcomm that it could not produce them because of third-party objections. 

That date came and went. Since then, Qualcomm has raised the issue through numerous meet and 

confers and written communications but did not receive an answer as to when or whether this 

growing number of documents would be produced. Not until receiving a revised draft of this 

status report less than an hour before filing did Apple inform Qualcomm that any of these 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 3 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC

documents “have cleared the notice/consent process and have been produced”. Even now, Apple 

does not explain why it should take over two more weeks to produce the remaining documents, 

given that Apple could and should have given notice to the relevant third parties weeks or even 

months ago. Depositions of Apple witnesses begin on February 28, 2018, so Qualcomm will be 

prejudiced if it does not get the documents sufficiently in advance of the depositions to be able to 

consider and use them. 

ii. Apple’s Purported Common Interest Agreement with Samsung. 

Qualcomm and Apple filed a joint discovery statement regarding production of Apple’s 

purported common interest agreement with Samsung. (ECF No. 536-03.) Pursuant to the Court’s 

February 5 Order (MDL ECF No. 321), the agreement has been submitted for in camera review. 

iii. Apple’s Late Notice of Additional Documents for Aaron Schafer. 

Not until 5 p.m. yesterday (Sunday, February 11)—when Apple sent its first draft of this 

joint status report—did Qualcomm learn about the “email repository belonging to Aaron Schafer 

that was previously inaccessible”. Apple subsequently informed Qualcomm that Apple was able 

to access these documents nearly two weeks ago, on January 30, and has been processing them. 

Apple also stated that this repository contains “approximately 900 non-cumulative documents that 

hit on search terms, or are in families with search term hits”. Depending on the circumstances of 

production, including the timing and the accuracy of Apple’s current estimate of volume, 

Qualcomm reserves the right to re-open the deposition of Mr. Schafer, which is scheduled to 

begin on February 28. 

iv. Apple’s “Downgrades”. 

The so-called “downgrades” from the privilege log are the most important category of asyet-unproduced documents. As Qualcomm raised in the January 12 Status Report, both the size 

and content of Apple’s privilege logs suggested that it over-withheld documents, including from 

key witnesses. It is now clear that Apple did so. On January 24, six weeks after Apple’s 

December 15 substantial completion deadline and four weeks after the December 29 privilege log 

deadline, Apple produced over 145,000 documents that it had “downgraded” from its logs. Apple 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 4 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC

now says there are more “downgrades” to come, but it does not indicate how many additional 

documents there will be or when they will be produced. Qualcomm is meaningfully concerned 

that these “downgrades” are a means of reserving the production of key documents until the last 

minute. 

II. Apple’s Privilege Log 

A. Apple’s Position 

Apple served Part I of its Amended Privilege Log on February 9, 2018. Apple is 

completing its log re-review and will serve the remainder of its Amended Privilege Log on a 

rolling basis. Apple anticipates that it will complete that service by February 19, 2018. 

To the extent Qualcomm has concerns concerning entries on Apple’s Amended Privilege 

Log (including entries that may be in error), Apple is available to meet and confer concerning 

those log entries and issues. 

B. Qualcomm’s Position 

In the January 12 Status Report, Qualcomm reported a number of structural and 

substantive issues with Apple’s privilege log, such as its overwhelming use of a generic privilege 

description that did not indicate whether documents were withheld on the basis of attorney-client 

privilege, work product protection, or both; and its inclusion of a large number of documents that 

were obviously not privileged. In its portion of the January 12 Status Report, Apple agreed to 

address a number of these issues. 

But in the month that has passed—and now six weeks after Apple’s deadline to serve its 

privilege log—Apple has yet to provide a completed revised log. On a January 25 meet and 

confer, Apple stated that it anticipated serving its entire revised log to Qualcomm by the week of 

January 29. Apple failed to do so. On a February 8 meet and confer, Apple indicated that it 

planned to serve only approximately 30% of the revised log in the next one or two days and 

would then also provide an update as to the timing of the remainder.1

 Apple now says it will 

 

1

 While Qualcomm had agreed on January 9 to accept Apple’s log revisions on a rolling basis, it 

did so in the interest of receiving Apple’s changes sooner so that it could assess Apple’s privilege 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 5 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC

complete its revisions by February 19, 2018, which is over seven weeks after the privilege log 

was initially due, and just nine days before the depositions of the first two Apple witnesses. This 

delay is effectively a self-granted extension of the December 29 privilege log deadline and is 

plainly prejudicial. 

Making matters worse, the first portion of the revised log, which Apple served on 

February 9 and which contains approximately 58,000 entries, continues to manifest substantial 

problems. For example, the log still contains a number of entries for communications with third 

parties, where it is unclear what the basis for attorney-client privilege or work product protection 

could be, including 25 communications with the U.S. Department of Justice, 70 communications 

with the European Commission’s Directorate-General of Competition, 27 communications with 

Samsung, and well over 100 communications with each of Intel and Infineon. Apple even logged 

several withheld communications with Qualcomm. Qualcomm is continuing to review the 

recently served first portion of the revised log but remains concerned that Apple is continuing to 

over-withhold documents. 

III. Deposition Scheduling 

Apple and the parties have scheduled depositions for five of the six current Apple 

employees2 subpoenaed by Qualcomm. Apple has offered deposition dates for Isabel Mahe, the 

remaining Apple witness, which Qualcomm has accepted, but neither the FTC nor the Class 

Plaintiffs have accepted. 

Apple and the parties have also scheduled the deposition of one of the two former Apple 

employees subpoenaed by Qualcomm. Apple is working to provide a deposition date for former 

employee Bruce Sewell, but has not yet provided dates to Qualcomm. 

 

claims with sufficient time for possible new productions. Apple’s timing serves only to jam 

Qualcomm’s ability to evaluate Apple’s revised log while preparing to depose Apple’s witnesses. 2

 Qualcomm has withdrawn its request to depose one current Apple employee in connection with 

these actions. 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 6 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC

Dated: January 12, 2017 Respectfully submitted, 

By: /s/ William A. Isaacson 

William A. Isaacson 

wisaacson@bsfllp.com 

Karen L. Dunn 

kdunn@bsfllp.com 

Amy J. Mauser 

amauser@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

1401 New York Avenue, N.W. 

Washington, DC 20005 

Telephone: (202) 237-2727 

Facsimile: (202) 237-6131 

Edward H. Takashima 

etakashima@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

401 Wilshire Blvd, Suite 850 

Santa Monica, CA 90401 

Telephone: (310) 752-2400 

Facsimile: (310) 752-2490 

Attorneys for Non-Party APPLE INC. 

By: /s/ Gary B. Bornstein 

Gary A. Bornstein 

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019-7475 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 7 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC

Robert A. Van Nest 

Asim M. Bhansali 

Eugene M. Paige 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

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

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 8 of 9
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC

FILER’S ATTESTATION 

I, Edward H. Takashima, am the ECF user whose identification and password are being 

used to file this Joint Discovery 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/ Edward H. Takashima 

Edward H. Takashima 

Case 5:17-cv-00220-LHK Document 562 Filed 02/12/18 Page 9 of 9