PAGES 1 - 19 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

BEFORE THE HONORABLE NATHANAEL COUSINS 

FEDERAL TRADE COMMISSION, ) 

 ) 

 PLAINTIFF, ) 

 ) 

 VS. ) NO. 17-CV-00220-LHK-NMC 

 ) 

QUALCOMM INCORPORATED, A DELAWARE ) 

CORPORATION, ) 

 ) SAN JOSE, CALIFORNIA 

 DEFENDANT. ) WEDNESDAY 

 ) JUNE 28, 2017

___________________________________) 

TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND

RECORDING 1:12 P.M. - 1:36 P.M.

APPEARANCES: 

FOR INTERESTED WILMER CUTLER PICKERING HALE AND DORR 

PARTY 60 STATE STREET 

BOSTON, MA 02109 

 BY: JOSEPH J. MUELLER, ESQUIRE 

FOR DEFENDANT CRAVATH, SWAINE MOORE LLP 

825 EIGHTH AVENUE 

NEW YORK, NEW YORK 10019 

 BY: NICOLE PELES, ESQUIRE 

 GARY A. BORNSTEIN, ESQUIRE 

TRANSCRIBED BY: JOAN MARIE COLUMBINI, CSR #5435, RPR

 RETIRED OFFICIAL COURT REPORTER, USDC 

Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 1 of 20
 2

JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

WEDNESDAY, JUNE 28, 2017 1:12 P.M. 

(TRANSCRIBER'S NOTE: DUE AT TIMES TO COUNSELS' FAILURE TO 

IDENTIFY THEMSELVES WHEN SPEAKING, CERTAIN SPEAKER 

ATTRIBUTIONS ARE BASED ON EDUCATED GUESS.) 

---O0O--- 

PROCEEDINGS 

THE CLERK: CALLING CIVIL 17-0220, FEDERAL TRADE

COMMISSION VERSUS QUALCOMM, INCORPORATED.

THE COURT: ALL RIGHT. COME ON UP. DON'T BE SHY.

MR. MUELLER: GOOD AFTERNOON, YOUR HONOR. JOE

MUELLER ON BEHALF OF INTEL, AND WITH ME IS SHELLY WEBB,

ASSOCIATE GENERAL COUNSEL AT INTEL.

THE COURT: GOOD AFTERNOON. WELCOME BOTH.

MS. PELES: GOOD AFTERNOON, YOUR HONOR. NICOLE PELES

FROM CRAVATH ON BEHALF OF QUALCOMM. WITH ME IS GARY BORNSTEIN,

ALSO FROM CRAVATH.

THE COURT: GREAT. WELCOME BOTH.

WE'RE HERE ON DISCOVERY WITH INTEL HAVING PRESENTED

AT DOCKET 110 ITS MOTION FOR A PROTECTIVE ORDER AND,

CONVENIENTLY FOR THE COURT, AND THANK YOU FOR THAT CONVENIENCE,

WE'VE GOT ATTACHED TO IT EXHIBIT A, WHICH IS INTEL'S PROPOSAL

THAT IS NOT AGREED TO BY QUALCOMM, AND EXHIBIT B, WHICH IS A

LESS STRENUOUS PROTECTIVE ORDER FROM INTEL'S PERSPECTIVE THAT,

AS I UNDERSTAND IT, IS AGREED BY ALL THE PARTIES, AND FTC, OF

COURSE, IS NOT PRESENT IN THE COURTROOM, AT LEAST NOT ON THE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

RECORD, BUT THEY HAVE AN INTEREST IN HOW THE PROTECTIVE ORDER

GETS RESOLVED. AS I UNDERSTAND IT, THEY'VE AGREED TO THE

VERSION IN B.

MR. MUELLER: THAT'S CORRECT, YOUR HONOR.

THE COURT: AND THE PRINCIPAL DISPUTE IS AS TO THE

USE OF HIGHLY CONFIDENTIAL MATERIAL AND THE ACCESS OF

QUALCOMM'S IN-HOUSE COUNSEL TO THOSE MATERIALS, AND THE

PROCEDURE THROUGH WHICH THOSE ATTORNEYS MAY OR MAY NOT ACCESS

THE HIGHLY CONFIDENTIAL MATERIAL.

IS THAT FRAMING PROPERLY THE DISPUTE?

MR. MUELLER: THAT'S CORRECT, YOUR HONOR. THAT'S THE

PRINCIPAL DISPUTE. THERE ARE SOME SMALLER DISPUTES, BUT THAT

IS THE CORE DISPUTE.

THE COURT: VERY WELL. AND JUST TO REMIND BOTH

PARTIES, ON THE DISCOVERY REFERRAL IN THIS CASE AND THE RELATED

CASES HEREIN THE MDL -- AND EITHER PARTY OR BOTH PARTIES, IF I

REALLY MESS IT UP, CAN APPEAL TO JUDGE KOH WITHIN 14 DAYS OF

ANY RULING ON THE PROTECTIVE ORDER.

WITHOUT NEEDING MUCH EXPLANATION, THE STANDARD FOR

PROTECTIVE ORDER IS GOOD CAUSE. THERE IS NO DISPUTE AS TO

WHETHER THERE'S GOOD CAUSE FOR A PROTECTIVE ORDER. THE

QUESTION IS WHAT ARE THE APPROPRIATE PARAMETERS OF THE

PROTECTIVE ORDER IN THIS CIRCUMSTANCE. 

I'M INTENDING TO GRANT ONE OF THE PROTECTIVE ORDERS,

THE QUESTION IS WHICH ONE SHOULD I CHOOSE. AND, OF COURSE, I

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

COULD MELD THEM TOGETHER AND TAKE SOME PARTS OF EACH AND

FASHION SOMETHING IN BETWEEN AS WELL, BUT I'M STARTING FROM

HAVING EXHIBIT A AND EXHIBIT B AS THE TWO PROPOSALS BEFORE ME.

I WOULD APPRECIATE -- THIS, I BELIEVE, IS OUR FIRST

HEARING IN THIS CASE -- GETTING A LITTLE BIT OF CONTEXT FROM

EACH PARTY, NOT THE CLOSING ARGUMENTS AT TRIAL, THAT'S NOT WHAT

WE'RE DOING TODAY, BUT AS TO WHY THIS MATTERS TO EACH PARTY,

BOTH FROM QUALCOMM'S PERSPECTIVE, THE ROLE THAT THE IN-HOUSE

COUNSEL PLAY IN THIS LITIGATION AND PLAY OUTSIDE THIS

LITIGATION, SO HOW IT WOULD IMPACT QUALCOMM IF I GRANTED THE

EXHIBIT A VERSION PROPOSED BY INTEL? 

AND THEN, CONVERSELY, FROM INTEL, I KNOW WE ARE

TALKING ABOUT HIGHLY CONFIDENTIAL INFORMATION, BUT JUST HOW

IMPORTANT THIS IS AND SORT OF WHY IT MAKES A DIFFERENCE TO

INTEL THAT QUALCOMM'S IN-HOUSE COUNSEL ACCESS OR DON'T ACCESS

MATERIAL AND SORT OF WHY THAT MATTERS FROM INTEL'S PERSPECTIVE,

BECAUSE THAT IS THE MOST SIGNIFICANT DIFFERENCE BETWEEN THE

TWO.

AND FOR THOSE IN THE AUDIENCE, THE KEY QUESTION IS

WHOSE BURDEN WILL IT BE LATER ON TO ESTABLISH SOME VARIANCE

FROM THESE GROUND RULES, AND THERE ARE VARIOUS APPLICATIONS OF

THAT, INCLUDING HOW IT'S ACCESSED, HOW IT'S PRESENTED DURING

THE CASE, HOW IT'S PRESENTED AT TRIAL, BUT THE STARTING POINT

IS WHO GETS TO SEE IT.

SO WHY DON'T I START, MR. MUELLER, WITH THE INTEL

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 4 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

SIDE, SINCE YOU'RE THE MOVING PARTY HERE, TO GIVE ME SOME MORE

CONTEXT AS TO WHY THIS MATTERS FROM INTEL, AND THEN I'LL GET

QUALCOMM'S PERSPECTIVE ON WHY IT MATTERS TO THEM.

MR. MUELLER: CERTAINLY, YOUR HONOR. SO I'LL GIVE

YOU A BRIEF OVERVIEW OF THE CASE AND HOW THAT LINKS UP WITH THE

PARTICULAR ISSUE.

THE COURT: I JUST FRESHLY READ JUDGE KOH'S RULING ON

THE MOTION TO DISMISS, WHICH IS AS USUAL VERY THOROUGH AND HAS

A LOT OF CONTEXT FOR THE CLAIMS IN THE CASE AND THE PARTIES.

SO I DON'T THINK I NEED MUCH ON THAT. BUT IF YOU CAN JUMP FROM

THERE INTO WHY THIS MATTERS.

MR. MUELLER: ABSOLUTELY. SO AS YOUR HONOR KNOWS

FROM THE DECISION, THERE'S THREE TYPES OF CONDUCT THAT JUDGE

KOH EXAMINED AS BASIS FOR THE CLAIMS BROUGHT BY THE FEDERAL

TRADE COMMISSION AGAINST QUALCOMM. FIRST, WHAT THE FEDERAL

TRADE COMMISSION DESCRIBES AS QUALCOMM'S NO LICENSE, NO CHIPS

POLICY; SECOND, THE REFUSAL TO LICENSE STANDARD ESSENTIAL

PATENTS TO CHIP COMPETITORS; AND, THIRD A SERIES OF CONTRACTS

THAT THE FTC HAS ARGUED ARE EXCLUSIONARY THAT WHERE ARE

NEGOTIATED BETWEEN QUALCOMM AND APPLE.

NOW, THE MARKET AT ISSUE OR ONE OF THE MARKETS AT

ISSUE IS BASEBAND PROCESSOR CHIPS FOR PREMIUM LTE PRODUCTS, AND

THE ONLY QUALCOMM COMPETITOR FOR THAT PARTICULAR MARKET IS

INTEL. INTEL IS NOT A PARTY TO THE CASE, BUT THE IMPACT OF THE

CONDUCT THAT THE FEDERAL TRADE COMMISSION HAS ASSERTED AS

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 5 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

ANTI-COMPETITIVE IMPACTS QUALCOMM, IMPACTS INTEL AS THE SOLE

COMPETITOR TO QUALCOMM FOR PREMIUM LTE CHIPS. AND JUDGE KOH

GOES THROUGH INTEL AND ITS RELATIVE RELATIONSHIP TO QUALCOMM

AND THE IMPACT OF THE CONDUCT AT ISSUE ON COMPETITORS LIKE

INTEL.

SO THE PARTICULAR CONCERNS THAT INTEL HAS IN THIS

CASE DERIVE ENTIRELY FROM THE NATURE OF THE CLAIMS IN THE CASE.

THERE ARE THESE THREE SETS OF CONDUCT: NO LICENSE, NO CHIPS;

REFUSAL TO ENTER INTO STANDARD ESSENTIAL PATENT LICENSES WITH

COMPETITORS; AND THE EXCLUSIONARY AGREEMENTS BETWEEN APPLE AND

QUALCOMM.

EACH OF THOSE THREE SETS OF CONDUCT INVOLVE LAWYERS.

THE FIRST ONE WOULD INVOLVE AT A BARE MINIMUM LICENSING

ATTORNEYS, AS WELL AS ATTORNEYS WHO MIGHT BE INVOLVED IN SALES

AGREEMENTS OR CONFERRING WITH FOLKS WHO ARE SELLING QUALCOMM

CHIPS, BUT THERE'S LEGAL CONDUCT THAT'S INTERTWINED IN THAT

FIRST SET OF CONDUCT, NECESSARILY.

SO, TOO, WITH THE SECOND SET, REFUSAL TO DEAL ON

STANDARD ESSENTIAL PATENTS. AGAIN, AT A BARE MINIMUM,

LICENSING ATTORNEYS WOULD BE INVOLVED IN THAT REFUSAL TO DEAL. 

AND THE THIRD PIECE OF CONDUCT ALSO WOULD INVOLVE

LAWYERS; THAT IS, THE AGREEMENTS BETWEEN QUALCOMM AND APPLE

WHICH WERE DRAFTED, SURELY, WITH THE ASSISTANCE OF LAWYERS.

AND THE POINT IS FOR EACH OF THE THREE TYPES OF

CONDUCT THAT ARE AT ISSUE IN THIS CASE THAT HAVE BEEN THE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

TARGET OF THE FEDERAL TRADE COMMISSION'S COMPLAINT, LAWYERS'

CONDUCT IS INVOLVED. THE QUALCOMM IN-HOUSE LEGAL DEPARTMENT'S

CONDUCT IS INVOLVED TO THE DETRIMENT OF THE COMPETITORS IN THE

MARKET, INCLUDING INTEL. 

SO WE HAVE CONDUCT INVOLVING LAWYERS THAT'S HARMING

CHIP COMPETITORS, AND THERE'S ONLY ONE CHIP COMPETITOR IN THE

PREMIUM LTE MARKET, INTEL. AND SO THIS CASE, WE BELIEVE

PRESENTS A UNIQUE INTERTWINEMENT OF IN-HOUSE LEGAL CONDUCT AND

THE PARTICULAR WRONGS AT ISSUE AND THE PARTICULAR HARM TO MY

CLIENT, NONPARTY, INTEL.

I WOULD DISTINGUISH THIS FACT PATTERN FROM CASES LIKE

A PATENT CASE, FOR EXAMPLE, WHERE THE ALLEGED INFRINGEMENT IS

ACTIONS THAT ARE CONDUCTED BY ENGINEERS ON A MANUFACTURING LINE

OR IN A LABORATORY, TRADE SECRET THEFT. AGAIN, THAT COULD BE

BY TECHNICAL FOLKS WHO ARE NOT WORKING WITH A LEGAL DEPARTMENT.

IN THOSE CIRCUMSTANCES, YOU COULD ENVISION DISCLOSURE

OF HIGHLY CONFIDENTIAL TECHNICAL MATERIAL TO IN-HOUSE LAWYERS

IN A WAY THAT WOULDN'T JEOPARDIZE THE UNDERLYING OR -- NOT

IMPLICATE THE UNDERLYING HARM AT ISSUE, BECAUSE THERE'S A

DIVISION BETWEEN THE IN-HOUSE LEGAL FOLKS AND THE CONDUCT BEING

TARGETED IN THE CASE; ENGINEERS ON THE ONE HAND, IN-HOUSE LEGAL

FOLKS ON THE OTHER.

HERE IT'S ONE IN THE SAME. THE CONDUCT AT ISSUE IS

INTERTWINED WITH THE ACTIONS OF QUALCOMM'S IN-HOUSE LEGAL

DEPARTMENT. SO THIS IS NOT A CASE WHERE THEY CAN BE SEGREGATED

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

APART AND WHERE THE LAWYERS IN THE IN-HOUSE GROUP ARE REMOVED

FROM THE CONDUCT AT ISSUE IN THIS CASE. IT'S BOUND UP

TOGETHER. THAT PRESENTS SPECIAL CONCERNS TO INTEL, BECAUSE IF

INTEL'S HIGHLY CONFIDENTIAL MATERIAL RELEVANT TO THE CLAIMS IN

THIS CASE, CLAIMS WHICH IMPLICATE THE CONDUCT OF QUALCOMM'S

IN-HOUSE FOLKS, WERE GIVEN TO QUALCOMM'S IN-HOUSE FOLKS, IT

PRESENTS EXACTLY THE RISK OF THE PARTY WHO'S ACCUSED OF BEING

ENGAGED IN WRONGDOING MISUSING THAT INFORMATION.

I WANT TO UNDERSCORE HERE, WE'RE NOT SAYING THIS WILL

BE DONE WITH ILL INTENT. THERE COULD BE ALL THE BEST

INTENTIONS AND WALLS SET UP AND ALL THE REST. BUT IF

INFORMATION ABOUT INTEL'S LICENSES FOR PATENTS OR SALES

PRACTICES OR STRATEGIC PLANNING WERE GIVEN TO QUALCOMM IN-HOUSE

LEGAL DEPARTMENT PERSONNEL, THERE IS A REAL RISK THAT AT SOME

POINT THOSE PERSONNEL COULD BE INVOLVED IN THE TYPES OF CONDUCT

THAT IS SQUARELY AT ISSUE IN THE FEDERAL TRADE COMMISSION'S

COMPLAINT. AND THAT'S THE CONCERN OF INTEL.

AS WE SAID IN OUR BRIEFING, YOUR HONOR, IF THERE WERE

A SHOWING OF TRUE EXIGENT NEED FOR IN-HOUSE PERSONNEL TO HAVE

ACCESS TO INTEL'S HIGHLY CONFIDENTIAL INFORMATION, QUALCOMM

COULD APPROACH THE COURT AT THAT TIME AND MAKE A SHOWING TO

THAT EFFECT. WE DON'T THINK THAT'S GOING TO HAPPEN FOR TWO

REASONS. ONE, THE QUALCOMM IN-HOUSE PERSONNEL WOULD HAVE, EVEN

UNDER OUR PROPOSAL, ACCESS TO CONFIDENTIAL INTEL INFORMATION.

THERE'S TWO TIERS. THERE'S CONFIDENTIAL AND HIGHLY

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 8 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

CONFIDENTIAL. WE ARE NOT DISPUTING THE PROTECTIVE ORDER'S

TREATMENT WITH RESPECT TO CONFIDENTIAL INFORMATION, AND THAT

CAN BE GIVEN TO A DESIGNATED TO A GROUP OF QUALCOMM IN-HOUSE

PERSONNEL.

THE COURT: SORRY TO INTERRUPT. WHAT'S YOUR ESTIMATE

OF THE VOLUME OF HIGHLY-CONFIDENTIAL INFORMATION, EITHER IN

PERCENTAGE OR SOME OTHER BASIS? 

MR. MUELLER: I WOULD SAY ON A PERCENTAGE BASIS,

THERE WOULD BE A FAIRLY HIGH PERCENTAGE OF THE MATERIAL THAT'S

GOING TO BE REQUESTED BY QUALCOMM AND HAS BEEN REQUESTED IN A

SUBPOENA THAT WE'VE RECEIVED SINCE WE FIRST FILED OUR BRIEF, AS

WELL AS MATERIAL THAT WAS GIVEN TO THE FEDERAL TRADE COMMISSION

BEFORE THIS LITIGATION, WHICH WE UNDERSTAND QUALCOMM HAS

REQUESTED FROM THE FEDERAL TRADE COMMISSION.

SO ON A PERCENTAGE BASIS, I'D SAY IT WOULD BE A

DECENTLY HIGH AMOUNT. I CAN'T GIVE YOU AN EXACT VOLUME

ESTIMATE. BUT THERE WOULD BE SOME INFORMATION THAT WOULD BE

NON-HIGHLY CONFIDENTIAL, AND THE IN-HOUSE FOLKS WOULD HAVE

THAT.

WITH RESPECT TO THE HIGHLY CONFIDENTIAL INFORMATION,

OF COURSE, THEY HAVE HIGHLY EXPERIENCED COUNSEL WHO WILL BE

ABLE TO REVIEW ALL OF IT AND WHO HAVE THE ABILITY TO ADVISE

THEIR CLIENTS, AS I THINK ALL OF US ARE ACCUSTOMED TO DOING IN

MANY, MANY CASES, ABOUT THE IMPORT OF WHAT THEY'VE SEEN AND

GIVE THEM THEIR BEST JUDGMENT BASED ON THE INFORMATION THEY

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

HAVE WHICH WOULD BE COMPLETE AND ABSOLUTE.

SO, REALLY, THE QUESTION IS, IS THERE A NEED FOR

QUALCOMM'S IN-HOUSE COUNSEL TO HAVE ACCESS TO THE HIGHLY

CONFIDENTIAL INFORMATION, AND, MOREOVER, UNDER BROWN BAG, IN

THE BROWN BAG BALANCING FRAMEWORK, ARE UNDUE RISKS BEING PLACED

ON INTEL BY VIRTUE OF SUCH A DISCLOSURE. AND WE WOULD SAY AT

LEAST AS DEFAULT IN THIS CASE THE ANSWER IS UNDUE RISK AND

BURDEN TO INTEL OUTWEIGHS ANY INCREMENTAL BENEFIT THAT QUALCOMM

COULD RECEIVE FROM HAVING IN-HOUSE COUNSEL HAVE ACCESS TO THIS

HIGHLY CONFIDENTIAL INFORMATION. AND, AGAIN, WE THINK IT'S

REALLY A FUNCTION OF THE PARTICULAR CLAIMS IN THIS CASE.

WHAT WE THOUGHT WAS NOTABLE ABOUT THE COURSE OF THE

BRIEFING, YOUR HONOR, IS THAT WE FOCUSED IN OUR OPENING BRIEF

ON THE CLAIMS IN THIS CASE, THE SAME CLAIMS JUDGE KOH DEALT

WITH TWO DAYS AGO. THE OPPOSITION BRIEF FOCUSED ON THE MODEL

PROTECTIVE ORDER IN THE ABSTRACT. 

AND, RESPECTFULLY, THAT'S NOT THE ISSUE. THE ISSUE

IS THE PARTICULAR CLAIMS AT ISSUE IN THIS CASE AND THE UNIQUE

WAY IN WHICH THOSE CLAIMS IMPLICATE THE WORK OF QUALCOMM'S

IN-HOUSE COUNSEL. AND INTEL AS A DIRECT COMPETITOR AND A

NON-PARTY FACES RISK FROM DISCLOSING ITS HIGHLY CONFIDENTIAL

INFORMATION TO THE VERY DEPARTMENT WHOSE CONDUCT IS AT ISSUE IN

THIS CASE.

THE LAST POINT I MAKE, YOUR HONOR, IS, AGAIN, WE'RE

SAYING THIS WITH ALL DUE RESPECT TO QUALCOMM AND ITS COUNSEL.

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

WE ASSUME THEY ARE GOING TO TRY TO SET UP SOME SAFEGUARDS, BUT

PEOPLE MOVE IN DEPARTMENTS OVER TIME, AS THE CASES RECOGNIZE,

AS BROWN BAG, FOR EXAMPLE, RECOGNIZES; COMPARTMENTALIZING

INFORMATION IS DIFFICULT. AND IN A CASE WHERE THE COURSE OF

CONDUCT AT ISSUE IS THE WORK OF THIS DEPARTMENT IN EACH OF THE

THREE CATEGORIES AT ISSUE, WE THINK THAT THE RISK THAT FOLKS

WILL MIGRATE FROM A POSITION TO ONE WHICH MIGHT INVOLVE ONE OR

MORE OF THOSE THREE SETS OF CONDUCT IS TOO GREAT A RISK FOR ITS

DIRECT COMPETITOR TO BEAR.

JUST ONE FINAL, FINAL POINT.

THE COURT: I ALREADY GAVE YOU A FINAL, BUT I'LL GIVE

YOU ONE MORE FINAL.

MR. MUELLER: SURE. I APOLOGIZE.

THE FINAL, FINAL POINT IS THE COMPETITOR

DECISION-MAKING BAR, YOUR HONOR, IN THE CURRENT PROTECTIVE

ORDER IS ONE YEAR FROM RECEIPT OF THE INFORMATION, NOT ONE YEAR

AFTER THE CASE IS OVER, ONE YEAR AFTER RECEIPT OF THE

INFORMATION. AND IT PLACES A BURDEN ON INTEL TO ESTABLISH THAT

THE INFORMATION SHOULD NOT BE DISCLOSED AND HOW -- QUALCOMM

IN-HOUSE COUNSEL.

SO WHAT WE'RE FACED WITH IS A CIRCUMSTANCE WHERE

FOLKS IN THE IN-HOUSE DEPARTMENT AT QUALCOMM WOULD RECEIVE THIS

INFORMATION UNLESS WE MET A BURDEN OF SHOWING THEY SHOULDN'T

RECEIVE IT, AND THEN ONE YEAR AFTER IT, THEY COULD MOVE INTO A

POSITION OF COMPETITIVE DECISION MAKING UNDER THE CURRENT

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

PROTECTIVE ORDER.

AND THAT'S SIMPLY TOO GREAT A RISK, WE WOULD ARGUE,

YOUR HONOR, TO ITS DIRECT COMPETITOR IN THE UNIQUE

CIRCUMSTANCES OF THIS CASE.

THE COURT: THANK YOU VERY MUCH.

MS. PELES: A COUPLE OF POINTS IN RESPONSE.

FIRST, QUALCOMM DISAGREES THAT THERE'S A MARKET FOR

PREMIUM LTE CHIPS AND ALSO WOULD DISAGREE THAT INTEL IS THE

ONLY COMPETITOR, EVEN IF THERE IS SUCH A MARKET. I THINK WE

CAN PUT THAT ISSUE ASIDE FOR NOW.

MOST CRITICALLY, INTEL'S ARGUMENT INCORRECTLY ASSUMES

THAT ALL OF QUALCOMM'S IN-HOUSE ATTORNEYS HAVE INVOLVEMENT IN

THE LICENSING AND SALES PRACTICES THAT ARE AT ISSUE AND

ALLEGATIONS IN THE COMPLAINT, AND THAT'S SIMPLY NOT THE CASE.

THERE ARE LAWYERS THAT ARE HOUSED IN THE BUSINESS

UNITS AT QUALCOMM THAT DO HAVE RESPONSIBILITY FOR DRAFTING AND

NEGOTIATING THOSE AGREEMENTS. THERE IS ALSO A CORPORATE LEGAL

DEPARTMENT AT QUALCOMM THAT HAS IN-HOUSE LAWYERS WHOSE PRIMARY

BUSINESS RESPONSIBILITIES INCLUDE MANAGING LITIGATIONS LIKE

THIS ONE, AND THOSE LAWYERS DO NOT HAVE BUSINESS

RESPONSIBILITIES FOR NEGOTIATING THE TYPES OF AGREEMENTS THAT

WOULD BE AT ISSUE HERE.

THE LAWYERS WITH BUSINESS RESPONSIBILITIES FOR

LICENSING AND CHIP SALES NEGOTIATIONS AND AGREEMENTS WOULD BE

BARRED UNDER THE PROTECTIVE ORDER AS CURRENTLY DRAFTED AND

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 12 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

INCLUDING THE EXHIBIT B OF PROVISIONS, WHICH BAR LAWYERS WITH

COMPETITIVE DECISION MAKING FROM HAVING DISCLOSURE FOR HIGHLY

CONFIDENTIAL INFORMATION.

MOST IMPORTANTLY, THIS IS A DISTINCTION THAT THE

SECTION 7.4 PROCESS, WHICH HAS BEEN APPROVED BY THIS COURT,

ALLOWS THE COURT TO MAKE AT THE APPROPRIATE TIME WHEN QUALCOMM

WOULD MAKE A MOTION UNDER SECTION 7.4 TO DISCLOSE PARTICULAR

DOCUMENTS TO PARTICULAR IN-HOUSE LAWYERS, AND AT THAT TIME THE

COURT COULD MAKE A DETERMINATION BASED ON A FULLY-INFORMED

FACTUAL RECORD AS TO WHETHER IT THINKS THE RISKS TO INTEL

OUTWEIGH THE NEED FOR DISCLOSURE. AND SO WE WOULD SUBMIT THAT.

AT THIS POINT WE DON'T HAVE A FULLY-INFORMED FACTUAL

RECORD TO MAKE THAT DETERMINATION AND HAVING A CATEGORICAL BAR

AT THIS EARLY STAGE IS NOT WARRANTED AND THAT THE PROTECTIVE

ORDER WITH THE SECTION 7.4 MECHANISM ADEQUATELY PROTECTS

INTEL'S INTERESTS.

THE COURT: LET ME ASK THIS: FROM QUALCOMM'S

PERSPECTIVE, WHAT IS THE NEED FOR IN-HOUSE COUNSEL TO ACCESS

INFORMATION KNOWING WHAT WE KNOW RIGHT NOW? TELL ME WHAT WOULD

BE LOST IF I GRANTED INTEL'S REQUEST.

MS. PELES: CERTAINLY. YOU KNOW, IT'S HARD TO

PREDICT ALL OF THE CIRCUMSTANCES THAT COULD ARISE THAT WOULD

REQUIRE IN-HOUSE COUNSEL TO HAVE ACCESS TO INTEL'S HIGHLY

CONFIDENTIAL INFORMATION, BUT SOME EXAMPLES THAT WE CAN, YOU

KNOW, THINK OF TODAY IS, YOU KNOW, QUALCOMM'S IN-HOUSE LAWYERS

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 13 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

HAVE TECHNICAL EXPERTISE. THEY'VE BEEN DOING THIS WORK AND

HAVE BEEN INVOLVED WITH QUALCOMM FOR A LONG TIME. 

SO TO THE EXTENT THAT WE WANTED THEIR INTERPRETATION

OF WHAT CERTAIN DOCUMENTS MEAN, WE WOULD LIKE TO BE ABLE TO AT

LEAST SEEK PERMISSION FROM INTEL AND THEN THE COURT IN ORDER TO

BE ABLE TO MAKE THAT DISCLOSURE.

THERE COULD BE DOCUMENTS THAT ARE CRITICALLY

IMPORTANT TO THE STRATEGIC DECISIONS THE LITIGATION WILL TAKE

GOING FORWARD, WHOSE DEPOSITION TO TAKE, WHAT LINE OF

QUESTIONING WE MIGHT WANT TO DO, WHETHER WE WANT TO MOVE FOR

SUMMARY JUDGMENT ON A PARTICULAR GROUND, AND WITHOUT HAVING THE

ABILITY TO DISCLOSE THE FACTUAL BASES ON WHICH WE'RE MAKING

THOSE DECISIONS IT WOULD BE, YOU KNOW, PROHIBITIVELY DIFFICULT

FOR QUALCOMM'S IN-HOUSE COUNSEL WHO HAVE LITIGATION MANAGEMENT

RESPONSIBILITIES TO ACTUALLY EXERCISE THOSE RESPONSIBILITIES.

THE COURT: AND YOU MENTIONED THAT THERE ARE

DIFFERENT DEPARTMENTS WITHIN IN-HOUSE WITH DIFFERENT

RESPONSIBILITIES; THEY'RE NOT ALL DOING THE SAME THINGS, SOME

MIGHT HAVE OVERLAP BETWEEN LICENSING AND LITIGATION, SOME MIGHT

NOT. CAN YOU SPECIFY PARTICULAR PERSONS WITHIN THE IN-HOUSE

WHO WE COULD CARVE OUT FROM INTEL'S PROPOSAL TO SAY THIS PERSON

OR THESE CERTAIN PEOPLE DON'T HAVE THAT OVERLAPPING CONCERN AND

DO HAVE A NEED TO ACCESS THE HIGHLY CONFIDENTIAL INFORMATION,

SO THEY SHOULD BE PERMITTED TO ACCESS THIS HIGHLY CONFIDENTIAL

INFORMATION?

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 14 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MS. PELES: WE CERTAINLY COULD DO THAT. I DON'T HAVE

A LIST SITTING HERE WITH ME TODAY. CERTAINLY, THE FIVE PEOPLE

THAT ARE LISTED IN EXHIBIT B TO THE PROTECTIVE ORDER NOW AS

IN-HOUSE COUNSEL WHO CAN ACCESS CONFIDENTIAL INFORMATION WOULD

BE ON THAT LIST. THERE WOULD LIKELY BE OTHERS. AND, YOU KNOW,

IF THE COURT WOULD LIKE IT, WE'D BE HAPPY TO SUBMIT SUCH A

LIST.

THE COURT: ALL RIGHT. ANYTHING ELSE THAT YOU THINK

I SHOULD CONSIDER IN RULING ON THE MOTION?

MS. PELES: I GUESS ONE OTHER POINT I WOULD MAKE IS

THAT, YOU KNOW, INTEL'S COUNSEL MADE THE POINT THAT THE BURDEN

WOULD BE ON INTEL TO PROVE THAT DISCLOSURES SHOULD NOT BE MADE,

BUT THE -- THAT IS A BURDEN OF PERSUASION THAT IS FOUND IN THE

MODEL PROTECTIVE ORDER, BUT THERE IS SIGNIFICANT BURDEN THAT

QUALCOMM WOULD HAVE TO UNDERTAKE IN ORDER TO INITIATE THE 7.4

PROCESS, AND INCLUDING PROVIDING DETAILED INFORMATION TO BOTH

INTEL AND THE COURT ABOUT THE LAWYERS THAT IT WOULD SEEK TO

MAKE DISCLOSURE TO, AS WELL AS THE PARTICULAR DOCUMENTS AT

ISSUE.

IT WOULD ALSO, IF INTEL WERE NOT TO CONSENT, QUALCOMM

WOULD BE THE ONE MAKING THE MOTION TO A COURT DESCRIBING WITH

REASONABLE PARTICULARITY WHY IT FEELS DISCLOSURE IS NECESSARY,

AS WELL AS, YOU KNOW, WHAT TYPES OF PROTECTIONS ARE PUT IN

PLACE TO GUARD THE RISK OF DISCLOSURE OF INTEL'S HIGHLY

CONFIDENTIAL INFORMATION.

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 15 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THE COURT: ALL RIGHT. MR. MUELLER -- THANK YOU.

THERE'S ONE OTHER ISSUE I WANTED TO ADDRESS. THAT'S PARAGRAPH

15 OF THE EXHIBIT A PROPOSAL, AND THAT CONCERNS THE USE OF

DESIGNATED MATERIAL AT TRIAL OR HEARING, SOMETHING THAT WAS

ADDRESSED IN THE BRIEFS.

MY CONCERN IS THIS PARAGRAPH CONCERNS A TRIAL IN

FRONT OF ANOTHER JUDGE, AND THAT'S JUDGE KOH, AND SHE MAY HAVE

SOME CONCERNS ABOUT THE TYING OF HER HANDS AS TO HOW THINGS

WILL BE USED AT TRIAL, AND SHE MIGHT FIND THIS TO BE OVERLY

STRUCTURED IN PREVENTING HER ORDERLY PRESENTATION OF EVIDENCE

AT TRIAL OR HEARING. 

I'M CONCERNED BY THAT, BUT I DON'T KNOW HOW SHE'LL

RESPOND. SO I WILL PUT AS A CAVEAT, IF I WERE TO GRANT THIS

PARAGRAPH, SHE MIGHT DISAGREE WHEN YOU ACTUALLY GET TO A

HEARING OR TRIAL AND MIGHT IMPOSE SOMETHING DIFFERENT. JUST

BUYER BEWARE, EVEN IF I GRANT THAT REQUEST, IT DOES NOT PREVENT

JUDGE KOH FROM VARYING THE RULE AT HEARING OR TRIAL AND

REQUIRING SOMETHING DIFFERENT.

MR. MUELLER: UNDERSTOOD, YOUR HONOR. MAY I BRIEFLY

RESPOND?

THE COURT: VERY BRIEFLY.

MR. MUELLER: JUST VERY BRIEFLY, YOUR HONOR.

TWO POINTS. FIRST, THAT WITH RESPECT TO THE NEED FOR

QUALCOMM IN-HOUSE COUNSEL TO USE THE INFORMATION, TO THE EXTENT

THAT THE QUALCOMM IN-HOUSE COUNSEL HAVE PARTICULAR SUBJECT

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 16 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MATTER EXPERTISE THAT WOULD LEND ITSELF TO AN ANALYSIS OF THE

MATERIALS PRODUCED BY INTEL, THAT'S EXACTLY OUR CONCERN, THAT

THEY WOULD HAVE THAT EXPERTISE AND THAT PRESENTS THE RISK WE'RE

CONCERNED ABOUT. IF THEY DON'T HAVE THAT PARTICULAR EXPERTISE,

THERE'S LESS NEED SHOW IT TO THEM. 

AND (INDISCERNIBLE) WE'VE ALL DEALT WITH SITUATIONS

IN WHICH WE DON'T HAVE THE ABILITY TO SHOW THESE TYPES OF

MATERIALS TO IN-HOUSE COUNSEL, AND WE'VE ALL FOUND WAYS TO

NONETHELESS ADVISE OUR CLIENTS WITH RESPECT TO SUMMARY JUDGMENT

AND LINES OF QUESTIONING AT DEPOSITIONS AND THE LIKE.

SECOND POINT, YOUR HONOR, IS WITH RESPECT TO THE

EXISTING PROTECTIVE ORDER, THE BURDEN, THE ULTIMATE BURDEN

UNDER PARAGRAPH 7.4 WOULD BE ON INTEL TO SHOW THAT DISCLOSURE

TO DESIGNATED HOUSE COUNSEL WOULD RISK HARM THAT WOULD OUTWEIGH

THE RECEIVING PARTY'S NEED TO DISCLOSE, AND THAT'S THE BURDEN

WE'RE CONCERNED ABOUT. WE DON'T THINK THAT BURDEN SHOULD FALL

ON A NON-PARTY DIRECT COMPETITOR WHO THE FTC IS BEING HARMED BY

THE VERY CONDUCT AT ISSUE IN THE CASE.

FINALLY, THAT'S AMPLIFIED BY THE COMPETITIVE

DECISION-MAKING BAR, WHICH, AS I MENTIONED, IS ONLY ONE YEAR

FROM RECEIPT, MEANING A QUALCOMM IN-HOUSE LAWYER COULD RECEIVE

THE INFORMATION TODAY, ONE YEAR FROM NOW MOVE INTO A DIFFERENT

POSITION THAT INVOLVES COMPETITIVE DECISION MAKING, INCLUDING

IN THE THREE SETS OF CONDUCT BEING CHALLENGED BY THE FTC AND

THAT, AGAIN, MAGNIFIES OUR CONCERN.

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 17 of 20
 18

JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

LAST THING, YOUR HONOR, IS UNDER OUR PROPOSAL THEY

COULD APPROACH YOUR HONOR AND SAY: WE HAVE DISCRETE

INFORMATION THAT WE NEED TO SHOW IN-HOUSE COUNSEL. WE SAID

THAT IN OUR BRIEF. IF THAT CIRCUMSTANCE ARISES, WE COULD BE

BACK IN FRONT OF YOUR HONOR, BUT WE BELIEVE ON THE FACTS OF THE

CASE, THE CLAIMS IN THE CASE, THE PRESUMPTIVE APPROACH SHOULD

BE NO DISCLOSURE OF INTEL HIGHLY CONFIDENTIAL INFORMATION.

THE COURT: THANKS VERY MUCH. HERE'S MY RULING FOR

THE MOTION ON PROTECTIVE ORDER.

I'M GRANTING INTEL'S REQUEST FOR PROTECTIVE ORDER AND

WILL ENTER THE FORM IN EXHIBIT A ATTACHED AS 110-2 IN THE

DOCKET. THE REASONS ARE I FIND THERE'S GOOD CAUSE FOR THAT.

IN PARTICULAR, IT'S THE CIRCUMSTANCES OF THIS CASE

WITH THE CHARGES IN THIS CASE AND THE PROCEDURAL POSTURE OF

THIS CASE. SO I'M NOT SUGGESTING THAT THE COURT'S STANDARD

PROTECTIVE ORDER SHOULD BE MODIFIED IN A WAY THAT EVERY CASE

WILL HAVE THIS SHIFTING OF BURDEN, BUT IN THIS CIRCUMSTANCE

WITH THE ALLEGATIONS AGAINST QUALCOMM AND THE PROFFERED ROLE OF

COUNSEL IN THE COMPANY, AND GIVEN THE TYPE OF INFORMATION THAT

HAS ALREADY BEEN PRODUCED TO THE FTC AND IS SUBJECT TO SUBPOENA

TO QUALCOMM, I AGREE WITH INTEL'S PRESENTATION THAT THE RISK

OUTWEIGHS THE BENEFIT BASED ON THE RECORD BEFORE ME.

BUT IN SO RULING, IF THERE'S A PARTICULAR -- IN THE

FUTURE, IF THERE'S A PARTICULAR IN-HOUSE ATTORNEY OR PARTICULAR

SET OF IN-HOUSE ATTORNEYS WHO CAN DEMONSTRATE WITH MORE

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 18 of 20
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

PARTICULARITY DOWN THE ROAD THAT THERE'S A PIECE OF INFORMATION

THAT THEY DO NEED TO ACCESS AND CAN EXPLAIN WHY, HAPPY TO COME

BACK TO HAVE A FURTHER DISCUSSION ABOUT THAT. THAT WILL BE

LESS ABSTRACT. IT MIGHT BE IN CONNECTION WITH A PARTICULAR

MOTION OR A PARTICULAR HEARING OR A PARTICULAR PIECE OF

EVIDENCE, AND THEN WE CAN GRAPPLE WITH WHETHER THAT PARTICULAR

SET OF INFORMATION SHOULD BE SHARED WITH THOSE INDIVIDUALS.

HERE WE'RE SETTING A TEMPLATE FOR WHAT'S GOING TO

TAKE PLACE OVER THE COURSE OF THE CASE, AND I THINK THE

APPROPRIATE AND PROTECTIVE TEMPLATE, RESPECTING THAT INTEL IS A

THIRD PARTY HERE, IS THE FORM THAT THEY HAVE SUGGESTED TO THE

COURT IN EXHIBIT A.

SO I'M GOING TO ENTER THAT EXHIBIT, KNOWING THERE

MIGHT BE CONTINUED NEED FOR FURTHER CONFERRING AND MODIFICATION

DOWN THE ROAD DEPENDING ON WHAT PARTICULAR CIRCUMSTANCES COME

UP IN THE CASE.

THAT'S THE COURT'S ORDER. THANK YOU VERY MUCH.

MR. MUELLER: THANK YOU, YOUR HONOR.

MS. PELES: THANK YOU, YOUR HONOR.

THE COURT: HAVE A GOOD DAY.

(PROCEEDINGS ADJOURNED AT 1:36 P.M.) 

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 19 of 20
JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

CERTIFICATE OF TRANSCRIBER

 

 I CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT 

TRANSCRIPT, TO THE BEST OF MY ABILITY, OF THE ABOVE PAGES OF 

THE OFFICIAL ELECTRONIC SOUND RECORDING PROVIDED TO ME BY THE 

U.S. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, OF THE 

PROCEEDINGS TAKEN ON THE DATE AND TIME PREVIOUSLY STATED IN THE 

ABOVE MATTER. 

 I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR, 

RELATED TO, NOR EMPLOYED BY ANY OF THE PARTIES TO THE ACTION IN 

WHICH THIS HEARING WAS TAKEN; AND, FURTHER, THAT I AM NOT 

FINANCIALLY NOR OTHERWISE INTERESTED IN THE OUTCOME OF THE 

ACTION. 

 

JOAN MARIE COLUMBINI 

JULY 28, 2017 

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Case 5:17-cv-00220-LHK Document 172 Filed 08/17/17 Page 20 of 20