Admin. Motion To File Under Seal 

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

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KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest - # 84065 

rvannest@keker.com 

Eugene M. Paige - # 202849 

epaige@keker.com 

Justina Sessions - # 270914 

jsessions@keker.com 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: 415 391 5400 

Facsimile: 415 397 7188 

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 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

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 

MORGAN, LEWIS & BOCKIUS LLP 

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone: (202) 739-3000 

Facsimile: (202) 739-3001 

MORGAN, LEWIS & BOCKIUS LLP 

Geoffrey T. Holtz (SBN 191370) 

gholtz@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

JOINT ADMINISTRATIVE MOTION 

TO FILE UNDER SEAL PORTIONS OF 

DEFENDANT QUALCOMM’S 

OPPOSITION TO MOTION FOR 

PARTIAL SUMMARY JUDGMENT 

AND SUPPORTING REQUEST, 

DECLARATIONS AND EXHIBITS 

Case 5:17-cv-00220-LHK Document 872 Filed 09/24/18 Page 1 of 9
1 Admin. Motion To File Under Seal 

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

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INTRODUCTION 

Pursuant to Civil Local Rules 7-11 and 79-5(d), Defendant Qualcomm Incorporated 

(“Qualcomm”) and the Federal Trade Commission (the “FTC”) hereby jointly move the Court to 

issue an administrative order authorizing the filing under seal of certain portions of Defendant 

Qualcomm’s Opposition To Motion For Partial Summary Judgment (the “Opposition”) and 

Supporting Request for Judicial Notice, Declarations and Exhibits (collectively, the “Supporting 

Documents”). In accordance with the Court’s Local Rules, public, redacted versions of 

Qualcomm’s Opposition and Supporting Documents have been filed. Neither Qualcomm nor the 

FTC have requested that any information filed herewith be sealed. This motion applies only to 

information identified by third parties as confidential or otherwise appropriate for sealing, and 

neither the FTC nor Qualcomm takes a position on sealing the information at issue. Qualcomm 

will file, or it has been informed that the third parties who have requested that certain information 

be sealed will file, supporting declarations in accord with this Court’s Order (ECF 821). 

LEGAL STANDARD 

Local Rule 79-5 provides that documents, or portions thereof, may be sealed if a party 

“establishes that the documents, or portions thereof, are privileged, protectable as a trade secret, 

or otherwise entitled to protection under the law.” Civ. L. R. 79-5(b). Where a party seeks to file 

under seal documents designated as confidential by an opposing party or non-party pursuant to a 

protective order, the submitting party “must identify the document or portions thereof which 

contain the designated confidential material and identify the party that has designated the material 

as confidential.” Civ. L. R. 79-5(e). The burden then falls to the party that has previously 

designated the material as confidential to establish that the designated material is sealable. Id. 

Courts apply a “strong presumption in favor of access” to court records. Kamakana v. 

City and Cty. Of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). However, sealing may be

justified to prevent judicial documents from exposing trade secrets or being used as business 

information that might harm a litigant’s competitive standing. In re High-Tech Employee 

Antitrust Litig., 2013 WL 163779, at *1; United States v. Zhang, 590 Fed. App’x 663, 665 (9th 

Case 5:17-cv-00220-LHK Document 872 Filed 09/24/18 Page 2 of 9
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Cir. 2014) (notifying users of trade secrecy and restricting access protected trade secret interest). 

Courts frequently grant requests to seal such confidential business documents where the company 

has a strong interest in maintaining confidentiality regarding its technology and internal business 

operations. See, e.g., In re iPhone Antitrust Litig., 2013 WL 12335013, at *2 (N.D. Cal. Nov. 25, 

2013); see also Ehret v. Uber Techs., Inc., 2015 WL 12977024, at *2 (N.D. Cal. Dec. 2, 2015) 

(granting motion to seal exhibit that contains company’s sensitive, proprietary business strategy 

and financial information). 

When evaluating the application, a court must “conscientiously balance the competing 

interests” of the public and the party who seeks to keep certain judicial records sealed. Id. at 

1179; see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2010) (a court should 

weigh “relevant factors,” base its decision “on a compelling reason,” and “articulate the factual 

basis for its ruling, without relying on hypothesis or conjecture”). Relevant factors to be 

considered by the court include the “public interest in understanding the judicial process and 

whether disclosure of the material could result in improper use of the material for scandalous or 

libelous purposes or infringement upon trade secrets.” Id. at 679 n.6. Even where a case 

generates a great deal of public interest, “it does not necessarily follow that the public has a 

legally cognizable interest in every document filed,” especially where the release of information 

will cause competitive harm to a business. Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 

1221-22, 1226 (Fed. Cir. 2013). 

ARGUMENT 

A. Qualcomm’s Opposition, Request For Judicial Notice, And Exhibits To The 

Declaration Of Geoffrey T. Holtz Contain Third-Party Trade Secrets And 

Confidential Information 

Qualcomm does not ask the Court to seal any Qualcomm information submitted with its 

Opposition. Rather, Qualcomm’s Opposition, Request for Judicial Notice, and exhibits to the 

Declaration of Geoffrey T. Holtz (“Holtz Declaration”) contain information designated as 

confidential by third parties under the governing Protective Orders and Supplemental Protective 

Orders in In re: Qualcomm Antitrust Litigation, No. 17-md-02773-LHK-NMC (N.D. Cal.) 

(“MDL Action”); Federal Trade Commission v. Qualcomm Incorporated, No. 17-cv-00220-

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LHK-NMC (N.D. Cal.) (“FTC Action”); and Apple, Inc. v. Qualcomm Incorporated, No. 17-cv0108-GPC-MDD (“S.D. Cal. Action”) (together, “Protective Orders”). See Declaration of 

Geoffrey Holtz in Support of Qualcomm’s Administrative Motion to File under Seal, ¶ ¶ 2-5. 

Qualcomm has met and conferred with the interested third parties and they have requested that 

Qualcomm file the materials listed below under seal. Qualcomm understands that the interested 

third-parties will provide declarations in support of this Motion to seal either with this Motion or 

within seven days, per the Court’s Order (ECF 821). 

Specifically, Qualcomm’s Opposition contains and references the following information 

designated by third parties Nokia Technologies OY and Nokia USA Inc. (collectively, “Nokia”); 

Ericsson Inc. (“Ericsson”); InterDigital, Inc. (“InterDigital”); Via Licensing Corporation (“Via 

Licensing”); Samsung Electronics Co. Ltd. and Samsung Semiconductor, Inc. (collectively, 

“Samsung”), and MediaTek USA Inc. and MediaTek Inc. (collectively, “MediaTek”) as 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” under the Protective Orders: 

Table 1: Proposed Redactions In Qualcomm’s Opposition 

Page and Line Number Party Requesting 

8:18-26 Nokia 

9:6-11 Ericsson 

9:10-11 Huawei 

9:16-23 InterDigital 

9:25-10:2 MediaTek 

10:2-4 Intel 

10:4-8 MediaTek, Marvell, 

Ericsson

10:8-9 Samsung 

21:16-19 Via Licensing 

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Additionally, Exhibits 22-27, 31 and 36 to the Holtz Declaration are or contain the 

following materials that have been designated confidential by third parties under the Protective 

Orders: 

Table 2: Requested Exhibits Under Seal 

Document Portion Under Seal Party Requesting 

Exhs. 22 and 27 Partial Nokia 

Exh. 23 Partial Ericsson 

Exh. 24 Entire exhibit InterDigital 

Exh. 25 Entire exhibit MediaTek 

Exh. 26 Entire exhibit Samsung 

Exh. 31 Entire exhibit Via Licensing 

Exh. 36 Entire exhibit Huawei, Ericsson 

Exhibit 17-20 to Qualcomm’s Request for Judicial Notice contains licensing information 

designated as confidential by third parties Ericsson, MediaTek, Intel Corporation (“Intel”), and 

Marvell Semiconductor, Inc. (“Marvell”). 

The information above describes internal trade secret discussions about business partners, 

potential competitors, and licensing practices, as well as confidential contractual terms between 

themselves and other third parties or nonparties. See, e.g., In re Elec. Arts, Inc., 298 Fed. App’x 

568, 569–70 (9th Cir. 2008) (sealing “pricing terms, royalty rates, and guaranteed minimum 

payment terms”); Sun Microsystems Inc. v. Network Appliance, No. C–08–01641–EDL, 2009 WL 

5125817, at *9 (N.D. Cal Dec. 21, 2009) (sealing confidential business information, which if 

disclosed could cause harm to the parties). Qualcomm has been informed that this information 

retains independent economic value from not being generally known to, and not being readily 

ascertainable through proper means to the general public. See Declaration of Geoffrey Holtz in 

Support of Qualcomm’s Administrative Motion to File under Seal, ¶ 2; 18 U.S.C. § 1839(3)(B). 

If disclosed, this information would cause respective third-parties competitive and commercial 

harm because it would provide competitors and counterparties insights into the third parties’ 

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business that they would not otherwise have, and could disadvantage third-parties in future 

negotiations with potential licensees and customers. See Nixon v. Warner Commc’ns., Inc., 435 

U.S. 589, 598 (1978) (“[C]ourts have refused to permit their files to serve as ... sources of 

business information that might harm a litigant’s competitive standing”); In re Elec. Arts, Inc., 

298 Fed. App’x at 569–70. 

B. The Declarations Of Edward G. Tiedemann, Jr. And Lorenzo Casaccia 

Contain Copyrighted Information Accessible Only After Payment 

Exhibits 1-15 to the Declaration Of Dr. Edward G. Tiedemann, Jr. in support of 

Qualcomm’s Opposition (“Tiedemann Declaration”) and Exhibits 1-10 of the Declaration Of 

Lorenzo Casaccia in support of Qualcomm’s Opposition (“Casaccia Declaration”) contain the 

complete published versions of standards sold by third parties the Telecommunications Industry 

Association (“TIA”) and the Alliance for Telecommunications Industry Solutions (“ATIS”). 

These standards are copyrighted and accessible only through purchase. Declaration of Geoffrey 

Holtz in Support of Qualcomm’s Administrative Motion to File under Seal, ¶ 6. If made 

publically accessible, these standards could lose commercial value, thus depriving TIA and ATIS 

of their ability to profit from their intellectual property. The presence of a complete copy of 

copyrighted work on the public docket, available for public download, poses risks of material 

commercial harm. See Bartech Int’l, Inc. v. Mobile Simple Solutions, Inc., 2016 U.S. Dist. LEXIS 

59852 (D. Nev. May 5, 2016) (granting motion to seal copyrighted source code in copyright 

infringement/trade secrets misappropriation action); Viable Solutions, LLC v. Solace Consulting, 

LLC, 2009 WL 2590284 (W.D.N.C. Aug. 17, 2009) (granting motion to seal plaintiff’s and 

defendant’s works in copyright infringement action); Corbello v. DeVito, 2011 U.S. Dist. LEXIS 

124774, *4-7 (D. Nev. Oct. 27, 2011) (same), rev’d on other grounds, 777 F.3d 1058 (9th Cir. 

2015). As the Corbello court held, “[m]aking the entire Jersey Boys Script publically and 

digitally available through the Court’s PACER and ECF system greatly compromises the 

opportunity to exploit the various subsidiary rights and/or their value because the digital copy can 

be easily, literally and quickly reproduced in its entirety and pirated.” Id. at *6; accord id. at *4 

(“disclosure of the Jersey Boys DVD could reasonably become a vehicle for improper purposes, 

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such as unauthorized reproduction, distribution and viewing”). 

Qualcomm has conferred with the FTC and represented that it has been informed that 

third parties have requested that the information described above is confidential or otherwise 

appropriate for filing under seal. In light of that representation, the FTC joins this motion. The 

FTC takes no position as to the merits of Qualcomm’s request to seal the information. 

CONCLUSION 

Accordingly, at the request of third-parties, and with the FTC taking no position on the 

matter, Qualcomm respectfully moves this Court to keep sealed the portions of Qualcomm’s 

Opposition To Motion For Partial Summary Judgment and accompanying exhibits as described 

above and in accordance with the proposed redactions filed as attachments to Qualcomm’s 

Administrative Motion to File under Seal. Filed concurrently herewith are declarations from 

counsel for both parties attesting to compliance with the requirements of the Court’s September 5, 

2018 order regarding administrative motions to seal (Dkt. 821).

Dated: September 24, 2018 MORGAN, LEWIS & BOCKIUS LLP 

/s/ Geoffrey T. Holtz 

 Geoffrey T. Holtz 

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 Robert A. Van Nest (SBN 84065) 

Eugene M. Paige (SBN 202849) 

Justina Sessions (SBN 270914) 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

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 

Richard S. Taffet (pro hac vice)

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 (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Tel.: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Geoffrey T. Holtz (SBN 191370) 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Tel.: (415) 442-1000 

Fax: (415) 442-1001 

gholtz@morganlewis.com 

 Attorneys for Defendant 

QUALCOMM INCORPORATED 

 

FEDERAL TRADE COMMISSION 

/s/ Jennifer Milici

 Jennifer Milici 

Jennifer Milici (D.C. Bar No. 987096) 

Joseph R. Baker (D.C. Bar No. 490802)

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Wesley G. Carson (D.C. Bar No. 1009899) 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

Telephone: 202-326-3695 

Facsimile: 202-326-3496 

jmilici@ftc.gov 

Attorneys for Plaintiff Federal Trade 

Commission 

Case 5:17-cv-00220-LHK Document 872 Filed 09/24/18 Page 9 of 9