QUALCOMM’S STATUS REPORT REGARDING 

THIRD-PARTY DISCOVERY

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

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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 

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 

QUALCOMM’S STATUS REPORT 

REGARDING THIRD-PARTY 

DISCOVERY 

Case 5:17-cv-00220-LHK Document 402 Filed 12/15/17 Page 1 of 8
1 QUALCOMM’S STATUS REPORT REGARDING 

THIRD-PARTY DISCOVERY 

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

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

set (1) a deadline of December 15, 2017 to brief disputes regarding third-party production, and (2) a 

deadline of January 5, 2018 for third parties to complete their document productions, Defendant 

Qualcomm Incorporated (“Qualcomm”) hereby submits this status report regarding its efforts to 

secure third parties’ compliance with these deadlines.1

Qualcomm has concluded negotiations over the scope of third-party productions 

—including custodians, search terms and non-custodial document collections—with the vast 

majority of the 55 third parties it has subpoenaed in the related cases. Prior to December 15, 

Qualcomm submitted to the Court disputes concerning the scope of third-party productions with 

Apple, Inc. (“Apple”), Apple’s contract manufacturers (the “CMs”), Intel Corp. and LG 

Electronics MobileComm U.S.A. Inc. (ECF Nos. 166, 212, 244, 287, 319, 320 and 343.) Except 

for the disputes with the CMs (set for another hearing on December 20), and a remaining dispute 

with Apple that will be filed by Qualcomm today, the other disputes have been resolved by 

Magistrate Judge Cousins. 

Apple, Inc. Today, Qualcomm will file a Joint Discovery Statement with Apple regarding 

Apple’s logging of communications it has withheld pursuant to common interest agreements and 

Apple’s non-compliance with the December 15 deadline set by Judge Cousins for the substantial 

completion of document production. 

The Contract Manufacturers. On November 17, 2017, Qualcomm and third 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 for the CMs’ document production. (ECF 

No. 319.) On November 30, 2017, the Court held a hearing and ordered the parties to continue to 

meet and confer and to file a status report regarding the parties’ negotiations by December 4, 2017. 

 

1

 On December 4, 2017, at the request of non-party ZTE (USA) Inc., this Court applied the 

third-party discovery deadlines to the related case In re Qualcomm Antitrust Litig., 

No. 17-md-02773. (ECF No. 210.) 

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2 QUALCOMM’S STATUS REPORT REGARDING 

THIRD-PARTY DISCOVERY 

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

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(ECF No. 356.) Since the hearing, the parties have met and conferred by telephone six times. 

Qualcomm submitted status reports regarding the parties’ dispute on December 4, 7 and 12. (ECF 

Nos. 370, 375, 387.) On December 14, the Court set a second hearing on the CM discovery dispute 

for December 20, 2017. (ECF No. 394.) Qualcomm and the CMs continue to meet and confer in 

advance of that hearing. 

Lenovo. On June 7, 2017, Qualcomm served a subpoena on third party Lenovo (United 

States) Inc. (“Lenovo”). Qualcomm and Lenovo previously agreed on the scope of document 

production, and Lenovo expects to substantially complete document production by December 31, 

2017. On December 4, 2017, the FTC disclosed that it is likely to rely at trial on the testimony of 

Ira Blumberg, a Lenovo employee. Qualcomm and the FTC have filed a stipulation and proposed 

order with the Court to extend the deadline for any motion to compel production of Mr. Blumberg’s 

documents until 30 days after Lenovo completes document production from its other agreed 

custodians, which would allow Qualcomm to review Lenovo’s document production to determine 

if it needs any additional documents related to Mr. Blumberg. (ECF No. 401.) 

MediaTek. On June 16, 2017, Qualcomm served a subpoena on MediaTek USA Inc. 

(“MediaTek”), which has the District of Massachusetts as its place of compliance. Qualcomm and 

MediaTek have met and conferred and agreed on the scope of the production, including custodians 

and search terms. On December 15, 2017, counsel for MediaTek represented that it will “endeavor 

to comply with the court’s deadlines for third-party production” but was not willing or able to 

commit to substantially completing its production by January 5, 2018 because counsel did not 

know whether MediaTek could collect and review certain non-email documents from one of the 

three agreed custodians in time to complete review by that deadline. Because the District of 

Massachusetts is the court of compliance under the subpoena, Qualcomm has not filed a joint 

discovery statement in this Court seeking an order that MediaTek substantially complete 

production by January 5. Counsel for MediaTek has also urged that any such request—to this 

Court or the court of compliance—would be “premature” at this point, given MediaTek’s stated 

willingness to try to meet the deadline. 

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THIRD-PARTY DISCOVERY 

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

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Huawei. On June 23, 2017, Qualcomm served a subpoena duces tecum on Huawei Device 

USA, Inc. (“Huawei USA”). Huawei USA is a subsidiary of a Chinese company Huawei 

Technologies Co., Ltd. (“Huawei Technologies”). In the subpoena and in meet and confer 

discussions, Qualcomm requested that Huawei USA produce documents from the files of certain 

custodians located in China. In response, Huawei USA asserted that it did not have possession, 

custody or control of those documents, which were held by Huawei Technologies or one of its 

Chinese affiliates. 

On December 4, 2017, pursuant to an agreement between Qualcomm and the FTC to 

exchange revised Rule 26(a) disclosures, reflected in the Case Management Statement dated 

November 8, 2017 (ECF No. 286), the FTC disclosed for the first time that it believes in good faith 

it is reasonably likely to rely at trial on the testimony of four Huawei employees based in China. On 

December 5, 2017, Qualcomm requested that Huawei produce documents from the files of the four 

witnesses identified by the FTC. Given Huawei’s apparent willingness to make evidence available 

to the FTC, Qualcomm also identified one Huawei employee in China from whom it sought 

documents and testimony. Following meet and confer discussions, on December 14, 2017, Huawei 

agreed to some of Qualcomm’s requests but rejected others. Qualcomm provided Huawei’s 

counsel with a further counterproposal earlier today, which counsel has promised to discuss with its 

client in China. 

Because Huawei USA originally rejected all requests for the production of documents from 

Huawei Technologies in China, and because Qualcomm was not aware until December 4, 2017 that 

Huawei Technologies had nevertheless agreed to make Chinese employees available for 

depositions at the FTC’s request, this issue could not have been raised with Huawei earlier, and the 

parties have not yet reached an impasse. 

PAE subpoenas. On November 6, 2017, Judge Cousins denied Qualcomm’s motion for

production of documents submitted to the FTC by certain third parties as part of the so-called 

Patent Assertion Entity (“PAE”) Study. (2017/11/06 Transcript at 42:8-43:14.) During the 

hearing, the Court stated that Qualcomm could “go against those third parties directly . . . .” (Id. at 

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THIRD-PARTY DISCOVERY 

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

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43:9-10.) Accordingly, Qualcomm sought the documents submitted to the FTC directly from the 

third parties who participated in the PAE Study.2 The vast majority of those entities have agreed to 

produce the responsive documents. Qualcomm has not yet received a response from two of the 

entities. 

Pillsbury. On October 25, 2017, the FTC informed Qualcomm that its Rule 26(a)(1) initial 

disclosures, served on April 12, 2017, listed all the entities on whom the FTC would rely at trial. 

Although ZTE Corporation (“ZTE”), a Chinese entity, was included on those disclosures, its 

outside counsel, Pillsbury Winthrop Shaw Pittman LLP (“Pillsbury”) was not. On December 4, 

2017, however, the FTC disclosed for the first time that it is likely to rely at trial upon the testimony 

of Pillsbury partners Michael Hird and Richard Baylock. Accordingly, on December 8, 2017, 

Qualcomm served subpoenas on Pillsbury seeking documents from the files of Messrs. Hird and 

Baylock that are relevant to these actions. The return date for the subpoenas to Pillsbury is 

December 22, 2017. The FTC has previously acknowledged that exceptions to the third party 

discovery deadline may appropriate in the event of “the identification of new individuals in a 

party’s Rule 26 initial disclosures” (October 19, 2017 Ltr. from D. Matheson to G. Holtz) or “where 

certain third parties may be unable to comply” (November 8, 2017 Case Management Statement 

(ECF. No. 286)). 

Dated: December 15, 2017 

 Respectfully submitted, 

CRAVATH, SWAINE & MOORE LLP, 

/s/Gary A. Bornstein

Gary A. Bornstein

Yonatan Even 

Worldwide Plaza 

 

2

 Because the identity of the entities that submitted documents to the FTC as part of the PAE Study 

is Highly Confidential pursuant to the Protective Order entered in this action, Qualcomm does not 

list the relevant third parties in this status report. 

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5 QUALCOMM’S STATUS REPORT REGARDING 

THIRD-PARTY DISCOVERY 

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

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825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

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

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FILER’S ATTESTATION 

I, _______________________, 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. 

 

 

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