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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 

FILED UNDER SEAL 

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 745-3 Filed 05/19/18 Page 1 of 21
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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 May 4, 2018 Order (ECF No. 724), Non-Party Apple Inc. 

(“Apple”) and Defendant Qualcomm Incorporated (“Qualcomm”) submit this Joint Status Report. 

I. Apple’s Documents Withheld Pursuant to a Claim of Common Interest. 

A. Qualcomm’s Position 

Qualcomm contests Apple’s assertion of a common interest with certain third parties as a 

basis for withholding numerous documents from production. Apple has withheld as privileged at 

least 3,921 documents exchanged between Apple and third parties on the basis of assertions of 

both privilege and a common interest between Apple and the third party with whom the 

documents were exchanged. Although Qualcomm is skeptical of the appropriateness of a very 

large portion of those assertions, it focused its challenge to only 44 such documents (see 

Appendix A), in an effort to be targeted, and with the expectation that Apple would apply the 

Court’s guidance on the issues relevant to these documents to re-assess the remaining claims. 

Qualcomm identified those documents to Apple on May 14 and proposed to meet and confer, but 

Apple did not respond. Instead, Apple said nothing until after receiving Qualcomm’s portion of 

this Joint Status Report. At 6:23 pm on the day this report was due, Apple withdrew its assertion 

of common interest over 37 of the 44 documents Qualcomm had identified—and for the first time 

provided its explanation for withholding the other 7 documents. Thus, Apple’s portion of the 

Joint Status Report defends its claim of common interest regarding those 7 documents, on 

grounds that Apple did not share with Qualcomm until hours before this report needed to be 

submitted. Because of Apple’s failure to meet and confer, Qualcomm’s ability to respond to 

those arguments on such short notice is necessarily limited. 

Although Apple has withdrawn its common interest claim over most of the documents 

Qualcomm challenged, Qualcomm still explains here the basis for its challenge, because it 

believes Apple should apply these principles to its remaining claims of common interest, relating 

to other documents that were not among the 44 that Qualcomm targeted. Apple’s withdrawal of 

Case 5:17-cv-00220-LHK Document 745-3 Filed 05/19/18 Page 2 of 21
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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

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the vast majority of its common interest assertions shows that it has broadly misapplied the 

doctrine, and that needs to be corrected more globally. 

i. The Withheld Communications Were Not Made in Furtherance of a 

Common Legal Interest. 

Qualcomm identified and challenged common interest claims covering communications 

between Apple and third parties regarding efforts to influence SEP licensing practices in the 

cellular industry and communications between Apple and third parties related to regulatory 

investigations of Qualcomm. These documents were generated as part of a broad effort by Apple 

and others to coordinate their attacks on Qualcomm to further their respective business interests. 

But the common interest doctrine prevents the waiver of privilege through disclosure of 

privileged information to a third party only when the parties share a common legal interest, and 

when the communications were made in furtherance of that interest. See Nidec Corp. v. Victor 

Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007) (doctrine protects only communications and 

documents exchanged for “matters of common legal interest, for the purpose of preparing a joint 

strategy”) (emphasis added). Common interest protection is a “narrow exception” that “does not 

extend to communications about a joint business strategy that happens to include a concern about 

litigation.” Elan Microelectrs. Corp. v. Apple, Inc., No. C 09 01541 RS (PSG), 2011 WL 

3443923, at *2 (N.D. Cal. Aug. 8, 2011) (“Generally, as the alternative name ‘joint defense 

privilege’ suggests, the doctrine applies to cases where ‘allied lawyers and clients’ work together 

in prosecuting or defending a lawsuit.”). 

Here, the business advantage that Apple and the other third parties sought to achieve 

together was a purely commercial interest that does not justify withholding their communications. 

First, Apple’s communications with third parties about SEP licensing practices reflect only shared 

financial interests as implementers of standardized technology, rather than any legal interests. 

These documents include subject lines such as “RE: First Draft for Review - re 5G Forum” (Row 

60789), “Re: NGMN IPR Forum - Documents to be considered by Pillar 1 and Pillar 3” (Row 

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

42016) and “Revised draft articles and internal rules” (Row 37865). Even if these documents 

were privileged in the first instance, their evident purpose was to discuss efforts to influence SSO 

licensing policies in a direction that would be favorable to Apple and other implementers, and not 

to prepare a joint legal strategy to prosecute or defend legal rights. 

Second, Apple cannot claim a common legal interest over its communications with third 

parties related to regulatory investigations of Qualcomm. The communications that Qualcomm 

challenges here were all made prior to any litigation in which Apple was a party, and they were 

all with Samsung and/or Intel – two parties that to this day have no pending litigation with 

Qualcomm. Neither of those companies shared a common legal interest with Apple relating to 

the Qualcomm investigations. As to Samsung, its interest (like Apple’s) was solely commercial: 

to reduce the price of Qualcomm’s patented inventions. Samsung’s internal documents 

demonstrate the commercial purpose of its cooperation with Apple. Samsung states 

 

 

Samsung joined forces with Apple in instigating these investigations and advocating its positions 

in order to achieve their common business purposes, i.e., reducing Qualcomm’s royalties and 

impairing Qualcomm’s strength in the development and sale of baseband processors. 

Likewise, Apple and Intel do not share a commercial legal interest. Instead, they share a 

commercial interest in weakening Qualcomm as a competitor in the baseband processor business. 

The Samsung document noted above . Intel 

competes with Qualcomm in the sale of baseband modem chips, including for use in Apple 

devices. Intel therefore had a strong commercial interest in helping Apple in its use of 

investigations of Qualcomm to impair Qualcomm’s position in baseband chip sales. And Apple, 

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

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for its part, 

 This shared business 

purpose does not constitute a common legal interest that justifies withholding the documents at 

issue. 

To support its claim of a common interest, Apple pointed to a series of nearly identical 

common interest agreements that it entered into with Samsung and Intel (as well as several other 

companies over the span of five weeks in 2016). Each agreement claims the same interest “in 

responding to requests from and thereby cooperating with various governmental agencies 

worldwide in connection with those agencies’ on-going investigations”.1 But the facts discussed 

above show that the true interest underlying these agreements was commercial rather than legal. 

Courts have repeatedly rejected attempts to convert a shared business interest into a purported 

legal one, even when related to litigation. For example, in Johnson Mattey Inc. v. Research 

Corp., the Court found that a party receiving royalty income from certain patents did not have a 

common interest in litigation between the owner of those patents and a third party regarding their 

licensing, even though the outcome of the litigation would likely lower the party’s royalty 

income. 2002 WL 1728566, at *6 (S.D.N.Y. Oct. 3, 2002). The court explained that “[a] shared 

desire to succeed in an action does not, however, rise to the level of a common legal interest” and 

“[t]he shared desire to maximize royalty income is . . . simply a commercial concern.” Id. 

Similarly, in McAirlaids, Inc. v. Kimberly-Clark Corp., the court found that a customer selling 

products made using a patent that was subject of litigation did not have a common legal interest 

with the patent holder because “interest in enforcement of the patent” was “purely commercial” 

 1 See “Common Interest Agreement” between Apple and Intel signed June 9, 2016 (with an 

amendment signed May 7, 2017), APL-QC-FTC_37224841, APL-QC-FTC_32291745; 

“Common Interest Agreement” between Apple and Samsung signed June 23, 2016, APL-QCFTC_32291747. 

Case 5:17-cv-00220-LHK Document 745-3 Filed 05/19/18 Page 5 of 21
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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

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and “mutual concern about litigation does not transform a common commercial interest into a 

legal matter”. 2014 WL 12782814, at *3 (W. D. Va. Sept. 26, 2014). 

As the Court suggested when first reviewing the agreement between Apple and Samsung, 

Apple and these other parties may have a united interest, but it is a business interest, not a legal 

one. (See 12/20/2017 Hr’g Tr. Re Disc. Ltr. Br. (“I am skeptical about the scope of the commoninterest privilege that’s been asserted”); see also ECF No. 600 (“The Court is skeptical that the 

Agreement qualifies as a common interest agreement, because it seems to the Court, upon 

reviewing the Agreement, that Apple and Samsung did not have a joint legal interest. Rather, the 

Court is inclined to find that the Agreement expresses Apple and Samsung’s joint commercial 

interest instead.”).) Apple has now acknowledged as much with respect to 37 of the 44 

documents Qualcomm challenged, meaning that it has to date applied the common interest 

privilege far too broadly. Apple must now apply the principles discussed above to the remaining 

documents over which it claimed a common interest and assess whether those assertions can 

properly be maintained. 

ii. Apple’s New Categories of Withheld Documents. 

Given the deadline for filing this report, Qualcomm offers below its initial responses to the 

newly minted arguments that Apple raised for the first time after 6 pm on the filing day. 

Qualcomm notes that Apple’s arguments should be assessed against the backdrop of Apple’s 

extensive over-assertion of common interest to withhold documents from production, which has 

already resulted in Apple withdrawing its assertion as to 84% of the documents Qualcomm 

identified.. 

Friends of FRAND: Apple contends that three of the seven documents relate to a “nonprofit association” it calls “Friends of FRAND”. Apple does not contend that it formed this 

association as part of a joint effort to pursue or defend against litigation, or that its members 

Case 5:17-cv-00220-LHK Document 745-3 Filed 05/19/18 Page 6 of 21
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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

shared a common legal interest regarding any particular patent or license agreement.2 Instead, 

regardless of the window dressing Apple tries to apply, Friends of FRAND is a group of 

commercial actors whose common interest is in lowering the royalties paid for the use of patented 

standardized technologies. The group seeks to achieve this goal through advocacy and lobbying – 

not through litigation in which the members, or even the group, is a party. Even if Apple and the 

other participants set up articles of association and other internal rules, their shared interest 

remained commercial rather than legal—just like the shareholders of a corporation have a shared 

commercial interest while interacting pursuant to a charter and bylaws. The nature of the 

common interest is governed by the substance of the interest, rather than the form in which it may 

or may not be documented. Therefore, the documents should not be withheld from production. 

Wireless Gigabit Alliance: Apple cannot assert a privilege or protection from production

over its communications with the Wireless Gigabit Alliance, because a Qualcomm entity was a 

member of that association. (See Wi-Fi Alliance (merger of Wireless Gigabit Alliance and Wi-Fi 

Alliance) Member Companies, https://www.wi-fi.org/membership/member-companies, including 

Qualcomm Atheros.) On this basis alone, the documents must be produced. 

Expert Selection: Apple’s claim of common interest protection over documents relating 

to the retention of experts in the KFTC proceeding against Qualcomm is unavailing because, as 

noted above, Apple joined with Samsung and Intel before the KFTC to pursue the shared 

commercial goal of reducing royalties and weakening Qualcomm’s competitiveness as a supplier 

of baseband processors. None of Apple, Samsung or Intel was a party to that proceeding, and 

none of them had any legal rights at stake; instead, they voluntarily retained experts to present 

arguments in that proceeding to further their joint business purpose of injuring Qualcomm. And 

even if the documents were considered attorney work product, to the extent these documents 

 2

 Apple’s reliance on In re Regents of the University of California, 101 F.3d 1386, 1390 (Fed. 

Cir. 1996), is therefore misplaced, because the common interest parties there had the same interest 

in particular patents, not in the rules of patent protection more generally. 

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

reflect efforts by Apple to coordinate an attack on Qualcomm’s business model, they bear directly 

on the potential bias of important witnesses from key industry participants. Communications 

among Apple, Intel or Samsung are a unique and essential source of that information, for which 

Qualcomm has substantial need. See Fletcher v. Union Pac. R.R. Co., 194 F.R.D. 666, 671 (S.D. 

Cal. 2000) (work product protection is conditional, and may be overcome by a showing of 

substantial need). Apple should be ordered to produce these documents. 

B. Apple’s Position 

There are no “newly-minted” positions. On May 14 at 11:11 pm eastern, Qualcomm 

emailed its list of documents that it intended to include in this filing. In the email, Qualcomm 

stated that it “disputes Apple’s withholding of certain third party communications under claims of 

a common interest.” Apple then narrowed the dispute so that the focus here is on seven 

documents: it has agreed to produce all but seven of the documents Qualcomm challenges in this 

joint status report. Those seven documents fall into three categories. 

Friends of FRAND (three documents):

3

 These documents are attorney-client privileged. 

They relate to “Friends of FRAND,” a non-profit association created to promote rules for the 

licensing of SEPs on FRAND terms. It was not part of an effort to “coordinate . . . attacks on 

Qualcomm,” and, in fact, the privileged communications make no mention of Qualcomm. (Supra

at 1.) The organization was governed by Articles of Association and a set of Internal Rules, and 

had retained outside counsel for legal advice on its formation and activities. Apple was a member 

of the Friends of FRAND. And before becoming a member, Apple was involved in its formation, 

including communicating with other potential members about the rules and legal principles that 

should govern and guide the association. On June 30, 2015, Apple signed a Non-Disclosure 

Agreement in which it agreed to maintain these communications in confidence. 

 3

 Three of the documents identified by Qualcomm concern the Friends of FRAND: 

EM0cu600000001676203, EM0cu600000001683149, and EM0cu600000001702801. 

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

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Because the documents fall within the common interest doctrine, privilege over the 

communications was not waived when they were shared with the third parties sharing the interest. 

The organizers of the Friends of FRAND shared a common interest because they were “allied in a 

common legal cause” (1) in seeking to form an association that offered an accurate and consistent 

interpretation of FRAND terms; and (2) in seeking to create rules and guidelines to govern the 

association. In re Regents of the University of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996) 

(upholding common interest where “[b]oth parties had the same interest in obtaining strong and 

enforceable patents”); see Apple Inc. v. Qualcomm Inc., No. 317CV00108GPCMDD, 2017 WL 

3966944, at *1 (S.D. Cal. Sept. 7, 2017) (“The ‘FRAND commitment’ or ‘FRAND bargain,’. . . is 

a contractual obligation between the SEP holder and the SSO.”). The privileged documents fall 

within this latter category: they are emails among counsel in the common interest group 

providing legal advice regarding the rules and guidelines that should govern the association, as 

well as a request for legal advice to outside counsel regarding the same subject. 

Contrary to Qualcomm’s contention, the fact that the organizers of the Friends of FRAND 

may have also had unrelated commercial interests “does not negate the effect of the legal interest 

for purposes of the common interest doctrine.” Harris v. Lang Pharma Nutrition, Inc., No. MC 

14-1154-UA (AGRX), 2015 WL 12832093, at *2 (C.D. Cal. May 22, 2015). Like all 

organizations and companies, it needed internal guidelines and rules to guide its operations. And 

like other organizations and companies, lawyers assisted with this process. The privilege 

determination does not turn on the ultimate business goals of the organization. It turns on the 

purposes of the communications-in-question. 

Moreover, where business concerns and legal concerns coexist, courts still apply the 

common interest doctrine to shield communications between separately represented parties with 

common interests. For example, in Hewlett-Packard, the court held there was no waiver of 

attorney-client privilege where the client shared its attorney’s opinion letter with a potential 

purchaser. Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308, 310, 312 (N. D. Cal. 

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

1987). Even though the parties shared privileged information in the context of the potential sale 

of the company—a decidedly commercial endeavor—the non-waiver principle still applied 

because the parties also shared a common interest in defending against anticipated litigation. See 

id.; see also Youngevity Int’l, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 WL 4227025, 

at **4-6 (S.D. Cal. Sept. 22, 2017); Morvil Technology, LLC v. Ablation Frontiers, Inc., 2012 WL 

760603, at *2-3 (S.D. Cal. Mar. 8, 2012). 

 Nor does it matter that the Friends of FRAND was not facing impeding litigation: 

neither attorney-client privilege nor the common interest exception to waiver require the threat of 

litigation. See id. at *1; United States v. Zolin, 809 F.2d 1411, 1417 (9th Cir. 1987) (nonparty 

who “has never been sued on the matter of common interest and faces no immediate liability” can 

“still be found to have a common interest with the party seeking to protect the communications”), 

vacated on other grounds, 491 U.S. 554 (1989). The members of the Friends of FRAND formed 

a non-profit organization to pursue a legal goal, and sought legal advice from outside counsel 

regarding its Articles of Association and Internal Rules. Because the communications fall within 

the scope of the common interest doctrine, privilege is not waived.

Wireless Gigabit Alliance:

4

 The Wireless Gigabit Alliance documents are protected for 

three reasons. First, the documents are communications between an association’s members and 

the association’s counsel. See In re Fresh & Process Potatoes Antitrust Litig., No. 2:13-CV2182-LAH, 2015 WL 1222278, at *5 (D. Idaho Mar. 17, 2015) (“[T]rade associations may 

properly assert privilege over confidential communications made between its attorneys and its 

members concerning legal advice for the association.”; holding that communications between a 

cooperative's general counsel and the lawyers of its member corporations were privileged). The 

Alliance was a trade association that developed and promoted the adoption of multi-gigabit per 

second speed wireless communications technology. Apple was not only a member of the 

 4

 Two of the documents concern the Wireless Gigabit Alliance: EM0ctu00000002015554 and 

EM0ctu00000002015552. 

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Alliance—it was on the board. The two documents identified by Qualcomm are privileged 

communications between the Alliance board and the Alliance’s outside counsel concerning 

interpretation of its IPR policy and a legal dispute and potential mediation between the Alliance 

and Qualcomm. 

Second, even if Apple counsel and the Alliance outside counsel did not have an attorneyclient relationship, privileged communications shared among them is not waived because the 

members of the Alliance share a common legal interest with regard to a potential mediation 

against an adverse party. See United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) 

(“Whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or 

potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: 

persons who share a common interest in litigation should be able to communicate with their 

respective attorneys and with each other to more effectively prosecute or defend their claims.”). 

Third, these documents are protected from disclosure under the work product doctrine, as 

they were prepared in anticipation of litigation between the Alliance and Qualcomm. Work 

product protection is not waived here because the communications were not shared (or likely to 

be shared) with an adversary. See Great American Assur. Co. v. Liberty Surplus Ins. Co., 669 F. 

Supp. 2d 1084, 1092 (N.D. Cal. 2009) (“[W]aiver of attorney work-product protection requires 

more than the disclosure of confidential information, it requires an act inconsistent with the 

adversary system.”). 

Qualcomm contends that one of its subsidiaries was a member of the organization. First, 

unless that subsidiary ignores corporate formalities, it is a different entity than Qualcomm. 

Second, privileged documents relate to a potential dispute with Qualcomm and the organization. 

Third, that dispute is not at-issue in this case. 

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Expert Selection:

5

 The final two documents (emails) are quintessential privileged 

communications falling within the common interest doctrine. In June 2, 2016 (the date of the 

documents), Apple, Samsung, and Intel legal counsel worked together, with the assistance of 

outside counsel, for the purpose of, among other things, preparing a joint expert report in the 

KFTC’s investigation of Qualcomm. These two documents concern the selection of the expert to 

use for that report, and disclose outside counsel’s legal advice about the expert selection and 

about the law related to consulting experts. As parties sharing a common interest in preparing a 

legal document related to their shared legal interest in ensuring that a patent holder complied with 

their legal obligations, their communications are protected from disclosure. See Griffith v. Davis, 

161 F.R.D. 687, 693 (C.D. Cal. 1995) (“[T]he joint client doctrine typically has been applied to 

overcome what would otherwise have constituted a waiver of confidentiality because a 

communication had been shared between two clients.”). 

Apple, Samsung, and Intel shared a common legal interest in cooperating with agency 

investigations and in the outcome of those agency investigations relating to Qualcomm’s market 

dominance and compliance with its FRAND obligations. The two disputed documents fall 

squarely within the scope of that interest. 

The common interest doctrine applies here even assuming for the sake of argument that 

Qualcomm is correct that Apple, Samsung, and Intel had an aligned business interest in working 

together with one another. The alignment and coexistence of business and legal goals does not 

eliminate the common interest exception. See supra discussion of Hewlett-Packard, 115 F.R.D. 

308, 310, 312; Youngevity, 2017 WL 4227025, at **4-6; and Morvil Tech., 2012 WL 760603, at 

*2-3. Here, similar to a joint defense group in a litigation, the parties cooperated and shared 

advice with one another about their joint response to an agency, the expert that can be used to 

assist in the response, and legal advice on the use of consulting experts. 

 5

 Two of the documents concern the selection of and expert: EM0cur00000002986750 and 

EM0cur00000002989244. 

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

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Finally, the two challenged emails predate by a few weeks the written agreements that the 

parties entered into memorializing their common interest related to, among other things 

responding to agency requests involving investigations into standard essential patents. Even 

without those written agreements, however, the common interest exception would still apply 

because the communications concern a common legal strategy that the parties understood they 

were pursuing, and that they understood would be maintained in confidence. See Ellis v. J.P. 

Morgan Chase & Co., No. 12CV03897YGRJCS, 2014 WL 1510884, at *7 (N.D. Cal. Apr. 1, 

2014) (holding that communications prior to the execution of the written agreement were 

protected by the common interest doctrine because “[d]ocuments created prior to formation of the 

common interest still may be protected by that interest; it is the purpose for which the documents 

were disclosed, and not whether they predated or post-dated the inception of the common interest, 

which determines whether the common interest doctrine applies.” (internal quotation and citation 

omitted)); see also U.S. v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012) (“[I]t is clear that no 

written agreement is required, and that a JDA may be implied from conduct and situation, such as 

attorneys exchanging confidential communications from clients who are or potentially may be 

codefendants or have common interests in litigation.”); In re Regents of the University of 

California, 101 F.3d 1386, 1390 (Fed. Cir. 1996) (common interest protection can be inferred). 

* * * * 

If the Court is inclined to find that any of these documents are not subject to the common 

interest doctrine or protected from discovery, Apple requests the opportunity to fully brief this 

issue. 

II. Apple’s Non-Responsive Log. 

A. Qualcomm’s Position 

On March 30, Apple served its Court-ordered “Non-Responsive Log”, which included 

more than 188,000 entries that Apple had originally withheld as privileged but then recoded as 

not responsive when revising its privilege logs. On April 15, 2018, Qualcomm sent to Apple a 

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list of 20,720 entries that appeared, based on their subject lines, so likely to be responsive as to 

warrant re-review. On April 30, 2018, after two weeks of delay and shortly before the parties 

were scheduled to appear at a May 2 hearing before the Court, Apple offered to re-review a 

random selection of 500 entries. Qualcomm maintained that a re-review of all 20,720 entries was 

warranted, but as a compromise, that Apple should re-review 1,000 entries as an intermediate 

step, consisting of 500 entries selected at random by Apple and a non-overlapping set of 500 

entries selected by Qualcomm. 

Apple provided the results of its re-review on May 11, 2018. The results are astounding. 

Apple reversed its responsiveness determinations of 405 out of 500 entries (over 80%) selected 

by Qualcomm and 150 out of 496 entries (over 30%) selected by Apple.6 These high reversal 

rates for Apple’s responsiveness calls speak to a systemic issue in Apple’s review. Even among 

the 441 entries that Apple maintains are “non-responsive”, there continue to be many entries that 

appear facially responsive to Qualcomm’s requests based on the subjects lines and the revised 

descriptions provided by Apple, including: 

 EM0cur00000003050093, “KFTC Decision: Tomorrow”, “Document prepared in 

anticipation of litigation and/or reflecting/requesting legal advice re: Qualcomm case 

before the KFTC”; 

 EM0cur00000003003780, “Re: KFTC Meeting - List of Information Requested by 

KFTC”, “Email chain between counsel (K Andeer and S Dillon) collaborating on legal 

advice/analysis re: KFTC requests for information about Qualcomm”; 

 EM0cur00000002986651, “Re: KFTC Hearing - Contents to be included in Apple's 

presentation at second hearing”, “Email chain requesting legal advice from attorneys K. 

Andeer, B. Sewell, BJ Watrous, re: KFTC Qualcomm hearing”; 

 EM0d3w00000008527664, “Q/NXP”, “Email reflecting request for information for the 

purpose of providing legal advice from B. McNamara re: competition effects of 

Qualcomm/NXP acquisition”; and 

 EM0cu600000001682137, “Fwd: Ericsson on (F)RAND”, “E-mail from attorney Helene 

Workman to attorneys including BJ Watrous related to legal advice re: Ericsson approach 

to FRAND”. 

 6

 Apple has represented that 4 document families in its sample set have technical issues that it 

is working to resolve to evaluate those families for responsiveness. 

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Apple now concedes that the first four of these documents are indeed responsive, meaning that its 

reversal rates are even higher than stated above. Apple provides no explanation for how, even in 

this small re-review of documents, it continued to identify as non-responsive documents that 

expressly refer to Qualcomm (nor does it explain how the fifth document, which expressly refers 

to FRAND licensing, could possibly be non-responsive). Compounding these concerns, Apple 

has extensively revised its privilege assertions with respect to these documents. Although all 

1,000 documents originally appeared on its privilege log, Apple has now determined that among 

the 500 entries randomly selected by Apple, 267 entries (53.4%) are not privileged, and Apple 

withdrew its privilege claims over a further 93 entries from the set of 500 selected by Qualcomm. 

Given the results of Apple’s re-review of the 1,000 documents from its Non-Responsive 

Log, Qualcomm maintains that Apple should re-review all 20,720 entries from Apple’s NonResponsive Log that Qualcomm identified on April 15, 2018. Following that re-review, the 

parties can meet and confer on whether any further steps are necessary. 

B. Apple’s Position 

Apple agrees to re-review the 20,720 entries Qualcomm identified from Apple’s NonResponsive Log. After that review, Apple will meet and confer to discuss whether further rereview is necessary. 

In response to Qualcomm’s speculation about “a systemic issue in Apple’s review,” these 

entries are not representative of the documents reviewed or produced in the case. Qualcomm 

chose 20,720 entries from the approximately 188,000 entries on the non-responsive log because it 

believed they all are “facially responsive to Qualcomm’s document requests.” (4/15/18 

Qualcomm letter.) 7 And it chose 500 of those entries for a targeted re-review—presumably 

 7

 As the Court is aware, both Qualcomm’s and Apple’s productions and logs were massive 

and contained errors. For example, Qualcomm continues to address its erroneous logging of 

entries for its former CEO, Paul Jacobs—an issue of significant importance to the case. Given the 

rate of error in Qualcomm’s privilege log—and its large productions—it also undoubtedly made 

non-responsiveness errors. These errors, however, are not visible because there is no log of 

Qualcomm’s non-responsive calls. 

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No. 17-cv-0220-LHK-NMC 

because they were in Qualcomm’s view the most likely to be responsive. These 500 entries 

represent less than .025% of the more than 4.1 million documents produced in this action. 

Though the responsiveness rate from that small sample is high, the rate on the random-sample 

batch is much lower. And even of the entries upgraded to responsive in Qualcomm’s sample of 

500, over 340 were withheld on privilege grounds (and logged). Qualcomm cites five specific rereviewed entries designated as non-responsive that it contends are responsive. However, those 

documents have been logged as privileged, and as such are not discoverable anyway.8 Again, 

Apple will re-review the remainder of the 20,720 entries identified by Qualcomm. But any meet 

and confer after that review should take into account the marginal value of any further re-review 

in light of the massive amount of information already produced and the burden on non-party 

Apple. 

III. Apple’s Re-Review of 1,000 Privilege Log Entries. 

A. Qualcomm’s Position 

On April 30, Qualcomm received the results of Apple’s re-review of 1,000 entries from its 

amended privilege log. From that re-review set, Apple produced 384 documents from 274 

document families, reflecting a reversal rate of over 27% of the 1,000 entries Apple re-reviewed. 

Pursuant to the Court’s March 30 Order (ECF No. 664), Qualcomm has identified a subset of 

documents that it may wish to submit, subject to the Court’s discretion, for in camera review. 

Qualcomm has shared this list with Apple. Once the parties conclude meeting and conferring 

about these documents, Qualcomm will advise the Court if there are any documents for which it 

requests in camera review. 

B. Apple’s Position 

On April 24, Apple served a revised privilege log pursuant to the Court’s March 30 Order. 

(ECF 664.) Late today—three-and-a-half weeks later—Qualcomm identified entries from that 

 8

 The first four of the entries were inadvertently tagged as non-responsive. 

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log that it may wish to submit, subject to the Court’s discretion, for in camera review. Apple will 

review and then meet and confer with Qualcomm about those entries. 

As to the results of the re-review, Apple maintains a privilege claim for 83% of the 

documents. It produced 17% of the re-reviewed documents in full,9 and it produced an additional 

7% of the re-reviewed documents in redacted form. 

IV. Additional Issues. 

Apple’s Production Status. Consistent with the Court’s March 7 recognition of the need 

for “clarification as to what’s being produced and what’s not being produced” (3/7/2018 Hr’g Tr. 

40:17-20), Qualcomm has evaluated the combination of Apple’s productions, original privilege 

logs, amended privilege logs and the Non-Responsive Log to try to trace which documents 

continue to be withheld as privileged, which have been withheld as non-responsive and which 

have been produced. At this time, Qualcomm is concerned that there are discrepancies based on 

the information Apple has provided thus far. Apple states that to the extent Qualcomm identifies 

further issues, Apple will be available to meet and confer. The process remains ongoing. No 

assistance from the Court is needed on this issue at this time. 

Apple’s Pending Notice/Consent Issues. In the April 16, 2018 Status Report (ECF No. 

687), Apple reported that it was withholding from production two document families pending 

resolution of third party notice/consent issues. Apple anticipates that it will be able to produce 

those two document families by the end of next week. 

 9

 The 1,000 entries represented 1,000 document families with 1,567 total documents. Of 

those documents, 272 were downgraded to not privileged. 

Case 5:17-cv-00220-LHK Document 745-3 Filed 05/19/18 Page 17 of 21
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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

Dated: May 18, 2018 Respectfully submitted, 

By: /s/ Eric J. Maurer 

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 A. 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 745-3 Filed 05/19/18 Page 18 of 21
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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

Robert A. Van Nest 

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 

Willard K. Tom 

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 

richard.taffet@morganlewis.com 

willard.tom@morganlewis.com 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated

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APPLE AND QUALCOMM’S JOINT STATUS REPORT 

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

Appendix A 

Documents Qualcomm is Challenging 

Communications related to changing licensing practices 

EM0cu600000001698120 (Row 40022) EM0cu600000001722487 (Row 40877) 

EM0cu700000001662329 (Row 43351) EM0cu600000001733784 (Row 42016) 

EM0cu700000001662330 (Row 43352) EM0cu600000001735888 (Row 42342) 

EM0cu700000001673826 (Row 44881) EM0cu600000001735889 (Row 42343) 

EM0cu700000001700183 (Row 48339) EM0cu600000001735893 (Row 42346) 

EM0cu700000001665604 (Row 44064) EM0cu600000001702801 (Row 40380) 

EM0cu700000001662355 (Row 43368) EM0cu600000001676203 (Row 37865) 

EM0cu700000001665583 (Row 44057) EM0cu600000001683149 (Row 38621) 

EM0cu700000001662367 (Row 43370) EM0d4p00000009060849 (Row 43352) 

EM0cu700000001662372 (Row 43373) EM0cu600000001688112 (Row 39066) 

EM0cu700000001665545 (Row 44052) EM0cu600000001699669 (Row 40171) 

EM0cu700000001665496 (Row 44041) EM0cu600000001715886 (Row 40596) 

EM0cu700000001665268 (Row 44020) EM0cu600000001715893 (Row 40599) 

EM0ctu00000002158677 (Row 29776) EM0cu600000001716491 (Row 40645) 

EM0d4p00000009065272 (Row 60789) EM0cu600000001717272 (Row 40689) 

EM0d4p00000009011650 (Row 42403) 

Communications related to regulatory investigations of Qualcomm

EM0ctu00000002122664 (Row 29757) EM0cur00000002989244 (Row 36448) 

EM0cur00000002980076 (Row 34340) EM0cyd00000007205421 (Row 37806) 

EM0cur00000002996944 (Row 37659) EM0cur00000002985126 (Row 35492) 

EM0cu600000001699707 (Row 40173) EM0cur00000002990750 (Row 36835) 

EM0cu600000001699709 (Row 40174) EM0cur00000003007429 (Row 39718) 

EM0c0x00000000047340 (Row 9115) EM0cur00000003051211 (Row 43304) 

EM0cur00000002986750 (Row 35880) 

Communications about letters to Qualcomm 

EM0ctu00000002015552 (Row 16558) EM0ctu00000002015554 (Row 16559) 

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

FILER’S ATTESTATION 

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

to file this Joint Status Report. 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 745-3 Filed 05/19/18 Page 21 of 21