JOINT CASE MANAGEMENT STATEMENT

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Counsel Listed on Signature Page

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

vs.

QUALCOMM INCORPORATED, a Delaware 

corporation,

Defendant.

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

JOINT CASE MANAGEMENT 

STATEMENT

DATE: June 13, 2018

TIME: 2:00 p.m.

CTRM: Courtroom 8

JUDGE: Hon. Lucy H. Koh

IN RE QUALCOMM ANTITRUST 

LITIGATION Case No. 5:17-MD-02773-LHK-NMC

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Pursuant to the Court’s May 1, 2018 Order Continuing Further Case Management 

Conference (MDL ECF No. 445), Plaintiff Federal Trade Commission (the “FTC”) and the MDL 

Plaintiffs (collectively, “Plaintiffs”) and Defendant Qualcomm Incorporated (“Qualcomm”) 

(collectively, the “Parties”) have met and conferred and hereby submit this Joint Case 

Management Statement.

I. MOTIONS

Since the Parties filed the May 22, 2018 Joint Case Management Statement (FTC ECF 

No. 752), Judge Cousins conducted a Discovery Hearing on May 24, 2018, and entered Orders 

addressing the pending motions. (FTC ECF No. 755.)

Judge Cousins deferred decision on Qualcomm’s request to compel Apple, Inc. to produce 

certain withheld documents that Apple had exchanged with third parties with which Apple asserts 

to have a common legal interest. Pursuant to Judge Cousins’s Order, Qualcomm and Apple filed

a joint discovery letter brief on June 1. (FTC ECF No. 759.) The FTC takes no position on the 

accuracy of statements made in this joint discovery letter brief.

Qualcomm and Apple filed a joint status report regarding Apple’s document production 

on June 4. (FTC ECF No. 760.) The FTC takes no position on the accuracy of statements made 

in this joint status report.

On Thursday, May 31, MDL Plaintiffs sent Qualcomm a copy of their proposed amended 

complaint, requesting that Qualcomm respond by Monday, June 4 indicating whether it would 

agree to MDL Plaintiffs filing an amended complaint or whether MDL Plaintiffs would need to 

seek leave to amend. In an effort to understand the potential prejudice to Qualcomm of plaintiffs’ 

proposed changes to their theory of the case and their expansion of the class after the close of fact 

discovery, Qualcomm responded with written questions on Tuesday, June 5. MDL Plaintiffs 

responded to Qualcomm's written questions on Wednesday, June 6, providing additional 

information in response to some of them.

Qualcomm and the FTC are meeting and conferring over the extent to which the 

Protective Order permits or prohibits the sharing of certain information in the FTC’s expert 

reports, as described in more detail below, and intend to file a joint discovery statement on this 

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issue if they cannot reach agreement.

The Parties have not filed any other motions since the May 22 Joint Case Management 

Statement.

II. PARTY DISCOVERY 

A. Written Discovery

The Parties do not have any open issues concerning written discovery other than those 

referenced in Part I above.

B. Document Discovery Issues

Qualcomm continues the process of re-reviewing documents pursuant to Judge Cousins’s 

April 4, 2018 Order Regarding Privilege Re-Review for Qualcomm and Apple (MDL ECF 

No. 427). Qualcomm produced additional revised log entries and documents on May 29, 2018. 

Qualcomm estimates that, as of May 29, 2018, it had completed re-review of a total of 87,000 

redacted or withheld documents, and that approximately 23,000 documents remain to be rereviewed by July 1, 2018. As a result of this re-review process, Qualcomm has produced 17,662

documents (either in redacted form or without redactions) that had previously been withheld as 

privileged, and has reduced or eliminated redactions on 9,870 previously redacted documents.

Some of the previously withheld or redacted content had already been produced in other 

documents before the re-review productions.

C. Party Depositions

1. Individual Depositions

All depositions of current or former Qualcomm employees have concluded. 

The Parties will meet and confer regarding re-opening of depositions following the 

completion of Qualcomm’s privilege re-review.

2. Rule 30(b)(6) Depositions

Qualcomm and the MDL Plaintiffs met and conferred regarding MDL Plaintiffs’ 

Rule 30(b)(6) Topics 1, 2, 8 and 11. In response to the MDL Plaintiffs’ written questions, 

Qualcomm provided written responses to questions on all topics and deposition time as to certain 

portions of Topic 2. The deposition was completed on May 31, 2018. MDL Plaintiffs are 

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reviewing Qualcomm’s responses. 

D. Expert Discovery

On May 24, 2018, the FTC served its expert disclosures pursuant to Federal Rule of Civil 

Procedure 26(a)(2). 

E. Protective Order Interpretation

The parties disagree regarding the interpretation of the Protective Order with respect to the 

treatment of certain third-party information in the FTC’s expert reports.

FTC’s Position. The Protective Order governs treatment of Protected Material, which 

includes any Discovery Material that third parties designate as Confidential or Highly 

Confidential, as well as “(1) any information copied or extracted from Protected Material; (2) all 

copies, excerpts, summaries, or compilations of Protected Material . . .”. ECF No. 81 ¶ 3. Section 

3 of the Protective Order also provides for exceptions of certain categories of information that are 

not covered by the Order, including “(a) any information that is in the public domain at the time 

of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 

Receiving Party as a result of publication not involving a violation of this Order, including 

becoming part of the public record through trial or otherwise” and “(b) any information known to 

the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure 

from a source who obtained the information lawfully and under no obligation of confidentiality to 

the Designating Party.” Id. 

The parties disagree as to the scope of information that falls within the exceptions in 

Section 3(a) and (b). The FTC’s position is that where it is not clear from the face of the 

document that information is either part of the public domain or known to Qualcomm, then 

Qualcomm must go through the process for challenging the designation, as outlined in Section 6, 

thus affording third parties an opportunity to protect information that they have designated as 

confidential or highly confidential. ECF No. 81 ¶ 6. 

The FTC offered months ago to discuss a schedule for providing redactions to documents 

and pleadings containing Protected Material, but Qualcomm declined. Then, prior to receiving the 

FTC’s expert disclosures, Qualcomm counsel suggested that it would propose initial redactions 

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prior to sharing the disclosures with its client. The FTC has responded promptly to Qualcomm’s 

proposals. In the course of meeting and conferring about appropriate redactions to the FTC’s 

expert disclosures prior to distribution to Qualcomm’s in-house attorneys, Qualcomm’s outside 

counsel has taken the position that it is free to disclose information designated as Protected 

Material by third parties if the underlying facts are public or are already known to someone 

within Qualcomm. The FTC understands Qualcomm’s position to be that its outside counsel may 

use its judgment and discretion in all cases to determine whether such information is covered by 

the Protective Order to begin with. Further, the FTC understands Qualcomm’s position to be that,

so long as the designated information is either public or known to Qualcomm, it may reveal not 

only the information in question to individuals not covered by the Protective Order, but also the 

source of the information (such as the identity of a deposition witness testifying to that 

information). The FTC disagrees with this interpretation of the Order. 

The FTC does not dispute the appropriateness of disclosure of Protected Material to 

Qualcomm employees where it is clear from the face of the source that the information is public 

or already known to Qualcomm, such as (i) countersigned agreements between Qualcomm and an 

OEM, or (ii) emails from Qualcomm to an OEM that were produced by the OEM. During the 

meet and confer process, Qualcomm pointed out some examples where we had, in fact, applied 

such redactions and the FTC agreed to lift the redactions. The FTC also said it would consider 

lifting other redactions for facts that Qualcomm asserts it already knows, or that are “industry 

knowledge.”1

The FTC disagrees, however, that Qualcomm’s outside counsel may unilaterally 

determine that a fact is public or already known to Qualcomm where it is not clear from the face 

of the document. To agree to such a procedure would circumvent the process of challenging 

required by Section 6 of the Court’s Order. In the event that Qualcomm (or the FTC) concludes 

that a third party’s designation of Protected Material is unwarranted, the Challenging Party must 

 1 During a June 5, 2018 meet and confer, the FTC agreed with Qualcomm in principle that such 

information clearly communicated to Qualcomm could be disclosed to Qualcomm employees. 

Qualcomm’s outside counsel agreed to propose such revisions and provide substantiation for its 

claims that any such facts fall within 3(a) or (b), but has not yet done so.

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contact the Designating Party and “initiate the dispute resolution process by providing written 

notice of each designation it is challenging and describing the basis for each challenge.” ECF No. 

81 ¶ 6. Neither Qualcomm nor the FTC can simply ignore a designation based on its own 

assessment of the sensitivity of the information or the purported independent knowledge of the 

information by Qualcomm. Indeed, the FTC has proposed redactions based on designations 

applied by third parties, and has not over-designated “plainly non-confidential information” as 

Qualcomm suggests below. And contrary to Qualcomm’s suggestion, much of the information 

does not clearly fall beyond the scope of the Protective Order, but rather describes market 

conditions and other competitively sensitive information.

Moreover, the FTC disagrees that where Qualcomm contends designated information is 

either public or known to Qualcomm, it may also reveal the source of the information without 

challenging the designation of the testimony under Section 6. The FTC’s position is that the fact 

that a particular witness testified to certain information—where that testimony has been designed 

as Protected Material by a Designated Party—is in and of itself Protected Material under the 

Order.2

The parties continue to meet and confer about specific redactions to the FTC’s expert 

disclosures and will submit a dispute to Judge Cousins if they are unable to reach agreement.

Qualcomm’s Position. The parties’ disagreement here arose when the FTC applied a 

blanket designation of “Highly Confidential” to the entirety of three of its four expert reports, and 

a blanket designation of “Confidential” to the entirety of its fourth report (although it later 

withdrew this designation, again as to the entire report)—even though Qualcomm had proactively 

initiated discussions with the FTC about the confidentiality designations on the FTC’s expert 

reports, even before those reports were served.

3

 To address the FTC’s over-designations, 

 2 The FTC strongly disagrees with Qualcomm’s suggestion below that it is “obstructing 

[Qualcomm’s] access to even public information in the FTC’s expert reports” by, for example, 

“cit[ing] third-party witness testimony rather than the press release as the source of that 

information.” The FTC has made a good faith effort to identify appropriate redactions based on 

third-party designations of Protective Information, in compliance with the Protective Order. 

Moreover, the FTC did not redact statements of fact attributed to multiple sources, where certain 

of the sources were not designated as Protected Material. 

3 Qualcomm disagrees with the FTC’s claim that Qualcomm “declined” to “discuss a schedule for 

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Qualcomm offered to, and did, propose to the FTC redacted versions of the four reports (despite 

the fact that it was the FTC’s obligation under Paragraph 5.1 of the Protective Order to avoid such 

blanket designations in the first place). When the FTC responded to Qualcomm’s proposed 

redactions—on June 4, ten days after it served the reports—the FTC continued to over-designate 

as Protected Material information that plainly does not warrant such designations. 

During meet and confers on June 5 and 6, the FTC finally acknowledged that under 

Paragraph 3 of the Protective Order, public information and information that is already in 

Qualcomm’s possession are not Protected Material subject to the Order’s restrictions. It has now 

stated that it will withdraw the redactions it had applied to such information in its expert reports 

(including, for example, redactions of the terms of Qualcomm’s own agreements), as long as the 

public nature of the information or its prior disclosure to Qualcomm is “clear from the face of the 

document” at issue. But the FTC continues to assert that Qualcomm personnel may not access 

portions of the FTC’s expert reports that contain public information or information previously 

disclosed to Qualcomm, unless Qualcomm can “substantiat[e]” to the FTC’s satisfaction that the 

information is “industry knowledge” or had been “clearly communicated to Qualcomm”. The 

FTC’s delay in providing redacted versions of its expert reports, its systemic over-designation of 

plainly non-confidential information and its apparent position that the Parties should engage in 

protracted discussions and satellite litigation concerning whether Qualcomm possesses obviously 

non-confidential information are prejudicing Qualcomm and hindering its ability to prepare 

rebuttal reports in the short time available. However, while these discussions have proceeded, 

Qualcomm has not disclosed any of the information the FTC has redacted from its expert reports 

to any individual not entitled to receive such information.

The Parties are meeting and conferring regarding these disagreements, and to the extent 

they are unable to resolve any differences they will bring any remaining dispute before Magistrate 

 

providing redactions to documents and pleadings containing Protected Material”. The parties 

discussed such a schedule but were unable to reach agreement. The FTC has asked Qualcomm to 

state that it was unable to review this footnote because, when the FTC sent a revised draft of this 

Statement making this claim at approximately 8:00 p.m. on the date of filing, the FTC stated it 

was unable to review any later responsive changes by Qualcomm. 

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Judge Cousins. At this juncture, however, Qualcomm notes that the FTC above misstates 

Qualcomm’s position. Qualcomm does not argue that it “can simply ignore a designation based 

on its own assessment of the sensitivity of the information or the purported independent 

knowledge of the information by Qualcomm”. Instead, the plain language of the Protective Order 

carves out certain types of information from its scope. In explicit terms, the Protective Order 

provides that “the protections conferred by this Stipulation and Order do not cover . . . any 

information that is in the public domain [or] any information known to the Receiving Party prior 

to the disclosure”. (ECF No. 81 ¶ 3 (emphasis added).) Because public information or 

information already in Qualcomm’s possession is expressly excluded from the “cover[age]” of 

the Protective Order, it does not constitute “Protected Material” subject to the Order’s various 

restrictions on disclosure. 

A third party’s decision to designate public information as “Confidential” does not bring 

that public information within the coverage of the Protective Order; the information is still public 

and therefore excluded from the definition of “Protected Material”. Accordingly, contrary to the 

FTC’s argument, the Protective Order does not require Qualcomm to follow the dispute 

resolution procedure in Paragraph 6 before sharing information that is public or already within 

Qualcomm’s possession. That is true regardless of whether the public nature of the information is 

or is not “clear from the face of the document” the FTC’s expert chose to cite (rather than from 

another public or Qualcomm document containing the same information). For example, the 

parties discussed on a meet and confer whether Qualcomm personnel may be told that an FTC 

expert relied on a fact appearing in a public press release, such as the release date of a 

competitor’s product, if the expert cited third-party witness testimony rather than the press release 

as the source of that information. The FTC’s view is that, if the expert cited witness testimony 

that a third party designated under the Protective Order, the expert’s use of this indisputably 

public information must not be revealed unless and until Qualcomm takes the issue up with the 

relevant third party and, if necessary, goes through the full dispute resolution process in 

Paragraph 6. Qualcomm disagrees. If the FTC were correct, it would enable the FTC (or third 

parties), to impede Qualcomm’s preparation of its defense by obstructing its access to even public 

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information in the FTC’s expert reports. Instead, Paragraph 3 provides that “the protections 

conferred by this Stipulation and Order”, which include the dispute resolution procedures in 

Paragraph 6, “do not cover” such public information or information in Qualcomm’s possession.

4

 

 Further, the FTC also asserts that the Protective Order allows it to conceal from 

Qualcomm the identity of a witness (“or other source of information”) relied upon by its experts, 

simply because the witness’s employer designated his or her deposition as Confidential or Highly 

Confidential. This is improper. To illustrate, on a meet and confer, the FTC postulated that if 

one of its experts cited testimony from a third-party deponent that “it was raining last Tuesday”, 

and the deponent’s employer designated that deposition (in its entirety or in relevant portion) as 

Confidential, then the identity of the cited deponent should be concealed from Qualcomm in the 

expert’s report. Putting aside the facts that witnesses’ identities have not been designated 

Confidential and cannot be Confidential here, the FTC makes this claim even though the weather 

in its hypothetical was publicly available information that is by definition not Protected Material. 

The FTC cites no provision of the Protective Order that requires such an illogical result.

Qualcomm is not seeking at this time to require re-designation of portions of the FTC’s 

expert reports that quote or disclose Confidential or Highly Confidential material from third-party 

discovery sources. Thus, this is not an issue that could or should have been addressed earlier, or 

even now, through challenging specific third-party designations (even if it were practical to do so 

before knowing what the FTC would cite in its expert reports). The information at issue now is 

only information that, pursuant to Paragraph 3, is not covered by the Protective Order at all when 

Qualcomm is the Receiving Party. 

III. THIRD-PARTY DISCOVERY

A. Document Production

The vast majority of third parties subpoenaed have completed their document productions 

 4 By contrast, if designated information is not either public or already known to a Receiving 

Party, but the Receiving Party disputes that the information qualifies as Confidential or Highly 

Confidential Information under the definitions set forth in the Protective Order and by law—for 

example, if there is a dispute as to whether designated non-public information actually qualifies 

for protection under Fed. R. Civ. P. 26(c)—then the Paragraph 6 dispute resolution procedure is 

the appropriate mechanism to pursue a re-designation of the information. 

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in this case. Certain third parties are still producing small volumes of documents, including as a 

result of the Orders and disputes summarized in Part I above. 

As stated above, Qualcomm and Apple filed a joint status report concerning Apple’s 

production on June 4, 2018. (FTC ECF No. 760.) The FTC takes no position on the accuracy of 

statements made in the joint status report.

B. Depositions

The Parties concluded depositions of third-party witnesses on April 20 as reported in the 

May 22 Joint Case Management Statement. (FTC ECF No. 752.)

The MDL Plaintiffs intend to take the deposition of Tim Cook of Apple, who will be 

deposed on June 27 in the coordinated Southern District of California litigation. 

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Dated: June 6, 2018

Respectfully submitted,

By:

FEDERAL TRADE COMMISSION,

/s/ Jennifer Milici

Jennifer Milici

Wesley G. Carson

J. Alexander Ansaldo

Joseph R. Baker

Elizabeth A. Gillen

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

SUSMAN GODFREY LLP

/s/ Kalpana Srinivasan

Kalpana Srinivasan

Marc M. Seltzer

Steven G. Sklaver

Amanda Bonn

Oleg Elkhunovich

Krysta Kauble Pachman

SUSMAN GODFREY L.L.P.

1900 Avenue of the Stars, Suite 1400

Los Angeles, CA 90067

Telephone: (310) 789-3100

Facsimile: (310) 789-3006

Email: ksrinivasan@susmangodfrey.com

Email: mseltzer@susmangodfrey.com

Email: ssklaver@susmangodfrey.com

Email: abonn@susmangodfrey.com

Email: oelkhunovich@susmangodfrey.com

Email: kpachman@susmangodfrey.com

Joseph Grinstein

SUSMAN GODFREY L.L.P.

1000 Louisiana Street # 5100

Houston, TX 77002

Telephone: (713) 651-9366

Facsimile: (713) 654-6666

Email: jgrinstein@susmangodfrey.com

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Joseph W. Cotchett

Adam J. Zapala

Brian Danitz

Mark F. Ram

Michael Montaño

COTCHETT, PITRE & McCARTHY, LLP

840 Malcolm Road, Suite 200

Burlingame, CA 94010

Telephone: (650) 697-6000

Facsimile: (650) 697-0577

Email: jcotchett@cpmlegal.com

Email: azapala@cpmlegal.com

Email: bdanitz@cpmlegal.com

Email: mram@cpmlegal.com

Email: mmontano@cpmlegal.com

Plaintiffs’ Interim Co-Lead Counsel

HAGENS BERMAN SOBOL SHAPIRO 

LLP

Steve W. Berman

HAGENS BERMAN SOBOL SHAPIRO 

LLP

1918 Eighth Avenue, Suite 3300

Seattle, WA 98101

Telephone: (206) 268-9320

Facsimile: (206) 623-0594

Email: steve@hbsslaw.com

Jeff D. Friedman (173886)

Rio S. Pierce (298297)

HAGENS BERMAN SOBOL SHAPIRO 

LLP

715 Hearst Avenue, Suite 202

Berkeley, CA 94710

Telephone: (510) 725-3000

Facsimile: (510) 725-3001

Email: jefff@hbsslaw.com

Email: riop@hbsslaw.com

Plaintiffs’ Steering Committee

Dated: June 6, 2018

By:

CRAVATH, SWAINE & MOORE LLP

/s/ Gary A. Bornstein 

Gary A. Bornstein

Yonatan Even

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza

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825 Eighth Avenue

New York, NY 10019

Tel: (212) 474-1000

Fax: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

Robert A. Van Nest

Eugene M. Paige

Justina Sessions

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 391-5400

Facsimile: (415) 397-7188

rvannest@keker.com

epaige@keker.com

jsessions@keker.com

Richard S. Taffet

MORGAN, LEWIS & BOCKIUS LLP

101 Park Avenue

New York, NY 10178-0060

Tel: (212) 309-6000

Fax: (212) 309-6001

richard.taffet@morganlewis.com

Willard K. Tom

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Ave. NW

Washington, DC 20004-2541

Tel: (202) 739-3000

Fax: (202) 739 3001

willard.tom@morganlewis.com

Donn P. Pickett

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105-1126

Tel: (415) 442-1000

Fax: (415) 442-1001

donn.pickett@morganlewis.com

geoffrey.holtz@morganlewis.com

Attorneys for Defendant Qualcomm 

Incorporated

Case 5:17-cv-00220-LHK Document 763 Filed 06/06/18 Page 13 of 14
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JOINT CASE MANAGEMENT STATEMENT

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

and 5:17-md-02773-LHK-NMC

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FILER’S ATTESTATION

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

to file this Joint Case Management Statement. In compliance with Civil Local Rule 5-1(i)(3), I 

hereby attest that the signatories on this document have concurred in this filing.

/s/ Gary A. Bornstein

Gary A. Bornstein

Case 5:17-cv-00220-LHK Document 763 Filed 06/06/18 Page 14 of 14