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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

Jennifer Milici, D.C. Bar No. 987096

Daniel Matheson, D.C. Bar No. 502490

J. Alexander Ansaldo, Va. Bar No. 75870

Joseph R. Baker, D.C. Bar No. 490802

Elizabeth A. Gillen, Ca. Bar No. 260667

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

Tel: (202) 326-2912; Fax (202) 326-3496

jmilici@ftc.gov

Lin W. Kahn, Ca. Bar No. 261387

Federal Trade Commission

901 Market Street, Suite 570

San Francisco, CA 94103

Tel: (415) 848-5115; Fax: (415) 848-5184

lkahn@ftc.gov

Attorneys for Plaintiff

FEDERAL TRADE COMMISSION 

SUSMAN GODFREY L.L.P.

Kalpana Srinivasan (237460)

1901 Avenue of the Stars, Suite 950

Los Angeles, CA 90067

(310) 789-3100; (310) 789-3006 (fax)

ksrinivasan@susmangodfrey.com

Plaintiffs’ Interim Co-Lead Counsel

CRAVATH, SWAINE & MOORE LLP

Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

825 Eighth Avenue

New York, NY 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest 

633 Battery Street 

San Francisco, CA 94111-1809

Telephone: (415) 676-2289

Facsimile: (415) 397-7188

rvannest@keker.com

MORGAN, LEWIS & BOCKIUS LLP

Donn P. Pickett (SBN 72257)

Geoffrey T. Holtz (SBN 191370)

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

Donn.pickett@morganlewis.com

Geoffrey.holtz@morganlewis.com

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

DEFENDANT QUALCOMM 

INCORPORATED, PLAINTIFF 

FEDERAL TRADE COMMISSION

AND MDL PLAINTIFFS’ JOINT

STATUS REPORT 

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 688 Filed 04/16/18 Page 1 of 11
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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

Defendant Qualcomm Incorporated (“Qualcomm”), and Plaintiffs Federal Trade 

Commission (“FTC”) and the MDL Plaintiffs (collectively, “Plaintiffs”) hereby submit this joint 

status report pursuant to Magistrate Judge Cousins’ March 30, 2018 Order. (ECF No. 664.)

A. Qualcomm’s Position.

1. Status of Re-Review

The Court’s April 4, 2018 Order (the “Re-Review Order”) required that Qualcomm 

“complete the re-review and any related production of documents for which the log entry (for a 

withheld document) or document metadata (for a redacted document) indicate that the document 

was authored, sent, or received by Dr. [Paul] Jacobs no later than April 11, 2018.” (MDL ECF 

No. 427.) Qualcomm has complied with that portion of the Re-Review Order by timely rereviewing Dr. Jacobs’ documents, revising its production of those documents to the extent 

necessary, and preparing or revising log entries for documents withheld in whole or in part. On 

April 11, 2018, Qualcomm produced revised privilege log entries for 885 documents on its 

privilege logs and produced new log entries for 1,197 previously redacted documents whose 

redactions did not change. Qualcomm produced 1,438 documents (either in redacted form or 

without redactions) that had previously been withheld as privileged and reduced or eliminated 

redactions on 749 previously redacted documents. The newly redacted documents were logged 

as well.1

The Re-Review Order provides that in each status report, Plaintiffs “may collectively 

request in camera review for up to 50 document families. The status report must certify that 

counsel for the parties have met and conferred in person or by phone in an effort to resolve the 

 1 Plaintiffs contend that their “initial review indicates that some of Qualcomm’s revised 

privilege log entries still do not clearly indicate which specific Qualcomm employees either 

requested or provided the legal advice.” Because Plaintiffs do not identify any specific log 

entries that they maintain are deficient, Qualcomm cannot meaningfully respond to this 

contention.

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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

privilege disputes for any document submitted in camera.” (MDL ECF No. 427.) In order to 

prepare for such a meet-and-confer, Qualcomm requested that Plaintiffs identify any documents 

they intended to submit for in camera review by Friday, April 13 at 5:00 pm Pacific. As 

Qualcomm advised Plaintiffs, “[i]f we are to have a meaningful meet and confer, in which each 

side actually listens to the other in an effort to resolve any remaining dispute, we need to know 

reasonably in advance of the call what documents you want to meet and confer about, so we can 

be prepared to discuss them.” (Apr. 12, 2018 email from T. Homesley to D. Matheson.) 

Plaintiffs rejected that request, stating that “[t]here is no further conversation to be had. We will 

identify 50 of these documents and there will be a dispute about those documents.” (Apr. 12, 

2018 email from D. Matheson to T. Homesley.) 

Ultimately, Plaintiffs provided Qualcomm with a list of the documents on which they 

intend to seek in camera review at 1:26 p.m. Eastern today, in advance of a meet and confer 

scheduled for 1:30 p.m. By refusing to identify the documents meaningfully in advance, 

Plaintiffs all but guaranteed that the meet and confer would be futile. Indeed, by insisting that 

“there will be a dispute about those documents”, Plaintiffs expressly stated their intention to 

submit the selected document families to the Court for in camera review regardless of 

Qualcomm’s explanation for its privilege determinations. As a result, although the parties spoke 

earlier today, Qualcomm cannot certify to the Court that the parties have meaningfully met and 

conferred regarding the document families Plaintiffs ask the Court to review in camera. 

2. Schedule of Future Productions

Following the production of the documents associated with Dr. Paul Jacobs, Qualcomm 

estimates that 105,633 withheld and redacted documents remain to be re-reviewed by the July 1 

deadline.

The Court initially endorsed a re-review process proposed by Plaintiffs that would have 

required weekly document productions. (MDL ECF No. 411, ECF No. 664.) After Qualcomm 

explained to Plaintiffs that each production requires Qualcomm to interrupt re-review for a 

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CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

period of time in order to attend to the production process, Plaintiffs agreed to revise the 

proposed re-review protocol so that productions would be made on a bi-weekly basis, and this 

protocol was endorsed in the Re-Review Order. (ECF No. 427.) Under that Order, Qualcomm 

was required to produce documents on April 11, and then every other Wednesday thereafter, i.e., 

on April 25, May 9, etc.

On April 6, 2018, Judge Koh modified the schedule contained in the Re-Review Order by 

ordering Qualcomm to complete its privilege re-review of documents involving former 

Qualcomm employee Derek Aberle by May 2. (ECF No. 678.) Qualcomm is working to meet 

this modified schedule, as well as the other deadlines contained in the Re-Review Order. 

Because there are approximately 51,000 Aberle documents at issue (nearly 50% of the remaining 

documents), the interim May 2 deadline requires Qualcomm to front-load its re-review process 

making it more challenging to conduct the re-review and logging with the care and consistency 

that Qualcomm wishes to achieve. In order to facilitate the orderly and uninterrupted re-review 

of Mr. Aberle’s documents by May 2, Qualcomm requested that Plaintiffs waive the interim 

production deadline of April 25 contained in the Re-Review Order. Qualcomm made this 

proposal to avoid back-to-back productions in consecutive weeks, which the parties had agreed 

to avoid when proposing the Re-Review Order. Given the unusually large number of documents 

involving Mr. Aberle, the most efficient means of ensuring the orderly, uninterrupted review of 

his documents is to forgo the April 25 interim deadline. 

Accordingly, Qualcomm requests that the Court allow Qualcomm to forgo the interim rereview production deadline of April 25 to allow for the orderly, uninterrupted completion of the 

re-review of the approximately 51,000 documents involving Mr. Aberle by May 2, as ordered by 

Judge Koh. (ECF No. 678.) Plaintiffs do not oppose this request, based on the following 

agreement between the parties: in the event that Plaintiffs request in camera review of fewer 

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than 50 documents on May 16, Qualcomm will not object to Plaintiffs’ June 16 request for in 

camera review on the grounds that the request exceeds the number permitted by the Court,

2 so 

long as the total number of documents Plaintiffs identify on May 16 and June 16 does not exceed 

100 documents. (E.g., Plaintiffs identify 32 documents on May 16, and then 68 documents on 

June 16.) If the Court grants this request, Qualcomm’s bi-weekly re-review production timeline 

will restart on May 2, so that the next re-review production would occur on May 15, which is the 

deadline for the production of Jeff Altman’s re-reviewed documents pursuant to the Re-Review 

Order. (MDL ECF No. 427.) Qualcomm would then continue bi-weekly productions every 

other Wednesday thereafter, beginning on Wednesday, May 30.

B. Plaintiffs’ Position.

Qualcomm’s statistics confirm the value of this exercise, as they indicate that Qualcomm 

has withdrawn more than 60% of its privilege claims upon re-reviewing previously withheld 

documents that relate to Mr. Jacobs.3 With respect to redacted documents, Qualcomm withdrew 

redactions (in whole or in part) from approximately 38% of the redacted documents that relate to 

Mr. Jacobs.4 

1. Status of Re-Review

Qualcomm’s statistics indicate that it completed re-review of approximately 4,269 

withheld or redacted documents by April 11, and that roughly 105,000 remain. 

 2 Qualcomm is free to oppose the request on any other appropriate grounds. 

3 According to Qualcomm’s statistics, it produced 1,438 documents that had previously been 

withheld as privileged, and maintained its claims for 885 documents. 1438 / (1438 + 885) = 

61.9%. 

4 According to Qualcomm’s statistics, it reduced or eliminated redactions on 749 previously 

redacted documents, and maintained redactions for 1,197 previously redacted documents whose 

redactions did not change. 749 / (749 + 1197) = 38.4%. 

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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

2. Schedule of Future Productions

Plaintiffs do not oppose Qualcomm’s request to waive the April 25 interim deadline, 

based on the parties’ agreement identified in Qualcomm’s section above. 

3. Request for In Camera Review of up to Fifty Documents 

On April 16, 2018, Plaintiffs identified to Qualcomm eight documents for which 

plaintiffs planned to request in camera review. Qualcomm should provide the Court with (1) an 

unredacted version of each document, with redactions indicated in colored highlighting, and (2) 

each relevant privilege log entry provided to the plaintiffs on April 11. Plaintiffs believe that 

each of Qualcomm’s log entries should provide sufficient information to establish that each 

privilege assertion is meritorious.

5 The below-listed entries for redacted documents, when 

considered along with the non-redacted content of the document, fail to support a privilege 

assertion and good cause exists for the Court to review in camera each document. The vast 

majority of relevant documents have not yet been re-reviewed and logged, thus the parties will 

benefit tremendously from the Court’s guidance regarding the substance of each of these 

assertions and the sufficiency of each privilege description. 

1. QNDCAL04961414 – “Email chain disclosing a request for legal advice and legal advice 

regarding licensing of QC patents.” [Fails to identify who requested the legal advice. And 

if the redacted advice relates to the advisability of terminating a license rather than the 

interpretation of a contract, it is business advice about how to negotiate with a 

competitor]

 5 On March 16, the Court instructed Qualcomm that each log entry involving in-house counsel 

but not outside counsel must “elaborate on: (1) the subject matter of each individual 

communication, and (2) the attorneys involved in the communication, and how their involvement 

renders the communication privileged. Simply stating that a communication ‘discloses legal 

advice’ regarding ‘QC business plans’ is insufficient. The description should say who requested 

or provided the legal advice, and for what purpose.” See ECF No. 627. See also United States v. 

ChevronTexaco Corp., 241 F.Supp.2d 1065, 1076 (N.D. Cal. 2002) (A privilege log “must make 

a clear showing that the speaker made the communications for the purpose of obtaining or 

providing legal advice.”).

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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

2. QNDCAL04960938 – “Email disclosing a request for legal advice and legal advice 

regarding licensing of QC patents. (Attorney: Altman, Steve).” [Fails to identify who 

requested the legal advice, and no request for advice is apparent because the only 

redacted comment is from Mr. Altman. And all of Mr. Altman’s non-redacted 

commentary relates to business negotiations, not to legal advice regarding the licensing 

of QC patents.]

3. QNDCAL04960947 – “Email disclosing legal advice regarding licensing of QC patents 

(Attorney: Altman, Steve).” [All of the non-redacted Steve Altman commentary relates to 

business negotiations, not to legal advice regarding the licensing of patents]

4. QNDCAL04963783 – “Email chain disclosing legal advice regarding royalties.” [All 

non-redacted portions of the email relate to business negotiation, not to legal advice]

5. QNDCAL04961555 – “Email chain disclosing a request for legal advice and legal advice 

regarding SULA licensing (Attorney: Lupin, Lou).” [Fails to identify who requested the 

legal advice or who provided it. In email chain, Mr. Blecker sent an email to Mr. Lupin 

after receiving an email from Mr. Lupin from which “advice” was redacted. Fails to 

identify from whom Mr. Blecker requested legal advice.] 

6. QNDCAL04961537 – “Email chain disclosing legal advice regarding royalties” [the nonredacted portion of the message from Mr. Lupin, if he is the attorney who provided legal 

advice, does not relate to royalties] 

7. QNDCAL04960985 – “Email chain disclosing a request for legal advice, legal advice 

and attorney work product regarding arbitration issues (Samsung chip business).” [Bill 

Keitel’s email, to which Sanjay Jha responds, appears to represent a business 

communication sent from one non-lawyer to another for a business purpose]

8. QNDCAL04966104 - “Presentation/Report disclosing legal advice regarding licensing of 

QC patents (disclosing legal implications of corporate reorganization for licensing and 

litigation).” [Fails to identify attorney who provided legal advice, and 

QNDCAL04966103, which is the cover email to this document, indicates this 

presentation was sent from one business executive to another for a business purpose]

To the extent Qualcomm objects to the timing of the list plaintiffs provided, plaintiffs 

note that Qualcomm requested a list of documents for in camera review by the previous Friday 

(April 13). As the documents were not produced until the evening of April 11, Qualcomm 

provided plaintiffs with less than 48 hours to reach conclusions about which documents merit 

review by the Court. There is no reason that Plaintiffs should be required to identify all entries 

meriting discussion on a short turnaround, more than two days in advance of a meet and confer. 

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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

Qualcomm should not need an extended period to assess its privilege claims before discussing 

them. If Qualcomm cannot be prepared to discuss and defend its privilege assertions based on the 

log entries (or information appearing on the face of redacted communications), then the 

information provided is facially deficient. Indeed, this Court has previously instructed 

Qualcomm that acceptable log entries must “say who requested or provided the legal advice, and 

for what purpose.” ECF No. 627 (Mar. 16, 2018 Order).

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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

Dated: April 16, 2018

Respectfully submitted,

FEDERAL TRADE COMMISSION,

_______/s/ Daniel Matheson__________________

Jennifer Milici

Daniel Matheson

J. Alexander Ansaldo

Joseph R. Baker

Kenneth H. Merber

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-2912; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Federal Trade Commission

________/s/ Rio S. Pierce___________________

HAGENS BERMAN SOBOL SHAPIRO LLP

Rio S. Pierce

715 Hearst Ave., Suite 202

Berkeley, CA 94710

(510) 725-3042

riop@hbsslaw.com

Attorneys for MDL plaintiffs

CRAVATH, SWAINE & MOORE LLP

/s/ Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

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JOINT STATUS REPORT

CASE NOS. 17-CV-0220-LHK-NMC, 17-MD-2773-LHK-NMC

Robert A. Van Nest

Asim M. Bhansali

Eugene M. Paige

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

Telephone: (415) 676-2289

Facsimile: (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

Telephone: (212) 369-6000

Facsimile: (212) 309-6001

richard.taffet@morganlewis.com

Willard K. Tom

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

Telephone: (202) 739-3000

Facsimile: (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

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

 donn.pickett@morganlewis.com

 geoffrey.holtz@morganlewis.com

Attorneys for Qualcomm Incorporated

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CASE NOS. 17-CV-0220-LHK-NMC, 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

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