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

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

BOIES SCHILLER FLEXNER LLP

William A. Isaacson, DC Bar No. 414788

wisaacson@bsfllp.com

Karen L. Dunn, DC Bar No. 1002520

kdunn@bsfllp.com

Amy J. Mauser, 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 

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.

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’S AND NON-PARTY APPLE 

INC.’S JOINT STATEMENT ON APPLE’S 

DOCUMENT PRODUCTION STATUS AND 

DOCUMENT LOGGING

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 404 Filed 12/16/17 Page 1 of 9
1

Defendant Qualcomm Incorporated (“Qualcomm”) and Non-Party Apple Inc. (“Apple”) 

submit this joint discovery statement regarding two issues. The first issue is the status of 

Apple’s compliance with the Court’s order to substantially complete its production of documents 

by December 15, 2017. The second issue is whether Apple should be required to log certain

withheld communications over which it asserts a non-waiver of privilege pursuant to the 

common interest doctrine. Qualcomm and Apple met and conferred about these issues on 

November 29 and December 1, 5, 7, 11 and 13, but were unable to come to resolution.

I. Qualcomm’s Position

A. Apple Has Not Met the Court’s Substantial Completion of Production 

Deadline.

Apple’s figures below definitively prove it failed to meet this Court’s December 15 

deadline to substantially complete its production of documents. (ECF No. 239). Apple states 

that it has produced 2.6 million documents and determined another 350,000 documents to be 

non-responsive. But Apple admits that there are another 1.3 million documents hit by the Courtordered search terms, on which Apple has done only an “initial review”. In other words, the 

deadline for substantial completion has arrived, and Apple still has not produced well over one 

million documents. Nor does Apple even venture an estimate as to when those documents will 

be produced.1

 To make matters worse, the as-yet unproduced documents are heavily weighted 

toward custodians that Qualcomm has said it will depose, meaning that Apple’s failure to 

comply with the deadline is materially impairing Qualcomm’s ability to prepare for depositions. 

Qualcomm also notes that approximately 2.25 million documents remain unaccounted for in 

Apple’s statistics. In Apple’s December 15 Status Report (ECF No. 403), Apple stated that 

“6.5 million documents have been slated for review”. Apple’s numbers below add up to only 

4.25 million documents. Apple does not explain what has happened to the remainder.

This Court warned Apple that its Orders are “not just made-up deadlines; they’re 

necessary in order to get the depositions done in an orderly fashion in this case.”2 Depending on 

how long it takes Apple to complete its production, Qualcomm now faces the prospect of being 

meaningfully prejudiced in its ability to defend itself—being squeezed between Apple’s delayed 

production of documents and the March 30, 2018 close of fact discovery. Given Apple’s failure

to meet a critical deadline it has known about for months, Qualcomm now petitions the Court to 

require Apple to produce immediately, subject to the already-entered Rule 502(d) Order (ECF 

No. 355), (i) all 1.3 million potentially responsive documents for which Apple has conducted an 

“initial review”, and (ii) any documents hitting the Court-ordered search terms that Apple has yet 

to review. Moreover, Qualcomm reserves its right to seek appropriate sanctions in the light of 

the additional burdens to be imposed on Qualcomm. 

B. Apple Should Be Required To Log Communications Withheld on the Basis of 

a Common Interest Agreement.

Apple has indicated that it intends to withhold from production, on the basis of a 

purported privilege, communications that Apple and its representatives had with a variety of 

third parties. In particular, Apple asserts that it has common interest agreements with the 

 1 Qualcomm’s concerns about timing are born of experience: in Apple’s November 17 Status Report, Apple noted 

that it was “in the process” of producing roughly 1.1 million documents to Qualcomm (ECF No. 318). Qualcomm 

first received a subset of those documents on November 27—sixteen days after Apple said those documents were “in 

the process” of being produced. And to date, Apple has produced fewer than 100 documents for several key 

custodians Apple knows are likely to be deposed. 

2 Nov. 27, 2017 Hearing Tr. 21:16-18.

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 2 of 9
2

plaintiffs in these actions—both the FTC and counsel for the putative class—as well as with 

Intel, MediaTek, Samsung, Compal, Foxconn, Pegatron and Wistron.3

 The validity of Apple’s 

privilege claims over these external communications is dubious, and will depend on the 

circumstances and content of each communication. Accordingly, Qualcomm is entitled to a

privilege log (which is due to Qualcomm on December 29, 2017) containing those 

communications, because Qualcomm may wish to challenge some or all of the privilege claims. 

However, Apple has refused to log—or provide any other information about—any such

communications dated after the January 17, 2017 filing of the FTC’s Complaint. Qualcomm 

hereby seeks an order requiring Apple to log any responsive post-Complaint communications 

that it withholds on the basis of common interest agreements.

Notably, for no other category of documents is Apple drawing a distinction between 

documents dated before the Complaint and documents dated after the Complaint. It is otherwise 

producing and logging both pre- and post-Complaint documents. It has singled out for special 

treatment only those documents withheld on the basis of a common interest agreement. For 

those documents, Apple proposes to provide Qualcomm no information at all, allowing its 

responsive post-Complaint communications with the plaintiffs, and with important third-party 

sources of documents and testimony, to remain completely secret. 

Apple’s primary basis for opposing this reasonable request is to rely on cases that discuss 

the logging of communications between a party and its own counsel, not those involving a 

common interest agreement.4

 The concerns expressed in those cases about chilling attorneyclient communications are obviously not present when Apple communicates with a third party, 

such as its arch-rival Samsung. Apple’s responsibility to log documents withheld subject to its 

common interest agreements should be strictly enforced here given the tenuous nature of Apple’s 

claim to any cognizable common legal interest. 

To withhold a document under a common interest agreement, Apple must establish that 

the communication is privileged and that a common legal interest exists between the 

communicating parties with respect to the communication. See Elan Microelectronics Corp. v. 

Apple Inc., No. C 09-1531 RS (PSG), 2011 WL 3443923, at *2 (N.D. Cal. Aug. 8, 2011); Nidec 

Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). Courts have rejected the 

application of common interest agreement protections where the overriding commonality in the 

parties’ communication is commercial in nature. Elan Microelectronics Corp., 2011 WL 

3443923, at *2 (“[Common interest agreements] ‘do[] not extend to communications about a 

joint business strategy that happens to include a concern about litigation.’”). Here, there is no 

shared legal interest. Apple is a party to agreements with Qualcomm that the FTC and MDL 

Plaintiffs challenge as violations of the antitrust laws. Apple cannot share a common legal 

interest with consumers and a government agency who consider agreements signed by Apple to 

be part of an unlawful antitrust conspiracy.

 3 Aug. 7, 2017 Ltr. from E. Takashima to G. Bornstein, at 1. Apple notably has only an oral agreement with the 

FTC, a fact that further underscores the need for close scrutiny of the privilege claim.

4 See Ryan Inv. Corp. v. Pedregal de Cabo San Lucas, No. C 06-3219 JWRS, 2009 WL 5114077, at *3 (N.D. Cal. 

Dec. 18, 2009); Netbula, LLC v. Chordiant Software, Inc., No. C08-00019 JW (HRL), 2009 WL 3919495, at *3 

(N.D. Cal. Nov. 18, 2009); Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 140 n.22 (3d Cir. 2009); 

Kellgren v. Petco Animal Supplies, Inc., No. 13-CV-644 L (KSC), 2016 WL 4097522, at *6 (S.D. Cal. July 7, 2016). 

In re Imperial Corp. v. America, 174 F.R.D. 475 (S.D. Cal. 1997), addressed a common interest agreement, but the 

key issue revolved around the level of detail that would be required by the log, given three years of litigation, 50 

parties and 20 law firms, and potentially millions of documents.

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 3 of 9
3

Furthermore, the common interest Apple shares with the entities besides the FTC and 

MDL Plaintiffs is a commercial interest, not a legal interest. Of the nine entities with which 

Apple has entered into its purported common interest agreements, four are Apple’s own contract 

manufacturers – entities that have stopped paying royalties to Qualcomm on Apple’s directive 

and are litigating with Qualcomm on Apple’s dime (through publicly disclosed indemnification 

agreements between Apple and each contract manufacturer); two more (Intel and MediaTek) are 

Qualcomm competitors hoping to hamstring Qualcomm and pursue future chip supply 

opportunities with Apple; and another (Samsung) is both a Qualcomm competitor and a 

Qualcomm licensee that shares Apple’s commercial interest in depressing the value of 

Qualcomm’s intellectual property. This Court recognized that “Apple is not an uninvolved, 

uninterested third party, but has a strong commercial interest in the [FTC’s] proceeding.” Aug. 

31, 2017 Hearing Tr. 13:11-18 (emphasis added).

5

Apple has not substantiated any burden objection from logging post-Complaint 

communications withheld on the basis of a common interest agreement. Indeed, Apple has not 

provided any information about the volume or frequency of such communications.

6

Qualcomm respectfully requests that the Court require Apple to log otherwise responsive 

post-Complaint communications that Apple withholds on the basis of a common interest 

agreement.

II. Non-Party Apple’s Position

A. Qualcomm Has No Basis to Demand that Apple Produce a Burdensome Log 

of Irrelevant, Post-Complaint Privileged Communications with Parties that 

Share a Common Interest.

The common interest doctrine allows material subject to the attorney client privilege or 

work product doctrine to be shared with third parties without waiving any applicable privilege.

See, e.g., United States v. Gonzalez, 669 F.3d 974 (9th Cir. 2012); U.S. v. AT&T, 642 F.2d 1285 

(D.C. Cir. 1980). The rationale for the rule is that “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.” Gonzalez, 669 F.3d at 978. Apple has 

entered into common interest agreements with the plaintiffs in these actions as well as several 

third parties in light of the overlapping issues between this litigation and related actions, 

including Apple’s suit against Qualcomm7 and Qualcomm’s suit against Apple’s contract 

manufacturers.

8 Apple, the FTC,9 Class Plaintiffs, and the Contract Manufacturers have a 

common interest in, among other things, coordinating their litigation against Qualcomm. Apple 

and the non-parties have a common interest in, among other things, ensuring Qualcomm’s 

compliance with its FRAND commitments. 

Just as with any privileged documents, communications covered by common interest 

 5 Apple contends that a shared commercial interest is a sufficient basis to prevent waiver of work product protection, 

but that issue remains open in the Ninth Circuit, Rembrandt Patent Innovations, LLC v. Apple Inc., No. 14-cv-05094 

WHA, 2016 WL 9114005, at *1 (N.D. Cal. Feb. 12, 2016), and even Apple does not contend that a shared 

commercial interest is sufficient to prevent waiver of attorney-client privilege. 6 In fact, if there is a significant volume of communications withheld pursuant to Apple’s common interest 

agreements, it would only increase the importance of a log to assess Apple’s privilege assertion. 7 Apple Inc. v. Qualcomm, Inc., No. 17-cv-00108 (S.D. Cal. filed Jan. 20, 2017). 8 Qualcomm Inc. v. Compal Elec., Inc., No. 17-cv-1010 (S.D. Cal. filed May 17, 2017).

9 Qualcomm’s claim that additional scrutiny is warranted because Apple’s common interest agreement with the FTC 

is an oral agreement is meritless. Gonzalez, 669 F.3d at 979 (“it is clear that no written agreement is required, and 

that a JDA may be implied from conduct and situation”).

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 4 of 9
4

doctrine that post-date the filing of the complaint are not required to be entered into a privilege 

log.10 See In re Imperial Corp. of Am., 174 F.R.D. 475, 478-79 (S.D. Cal. 1997) (subpoenaed 

party not required to produce detailed privilege log after the commencement of litigation because 

documents involved parties and counsel who shared a common interest); Dear v. Crown Castle 

S., LLC, No. 3:13-CV-212-WHB-RHW, 2016 WL 7985436, at *8-9 (S.D. Miss. June 9, 2016)

(common interest agreements not required to be logged); see also Ryan Inv. Corp. v. Pedregal de 

Cabo San Lucas, No. C 06-3219 JWRS, 2009 WL 5114077, at *3 (N.D. Cal. Dec. 18, 2009) 

(“[C]ounsel's communications with the client and work product developed once the litigation 

commences are presumptively privileged and need not be included on any privilege log.”); 

Netbula, LLC v. Chordiant Software, Inc., No. C08-00019 JW (HRL), 2009 WL 3919495, at *3 

(N.D. Cal. Nov. 18, 2009). A contrary rule “requiring creation of an ongoing log of all postcomplaint privileged communications would have a chilling effect on the attorney-client 

relationship.” Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 140 n.22 (3d Cir. 

2009); Kellgren v. Petco Animal Supplies, Inc., No. 13-CV-644 L (KSC), 2016 WL 4097522, at 

*6 (S.D. Cal. July 7, 2016) (adopting the reasoning in Grider). Subsequent to the filing of the 

FTC’s complaint, Apple’s communications with the FTC, the Class Plaintiffs, and other thirdparties that are related to the litigations against Qualcomm are covered by the common interest 

doctrine, and need not be entered on privilege logs.

Moreover, Apple’s post-suit communications with the FTC, the Class Plaintiffs, or other 

third parties are irrelevant to the antitrust claims and defenses at issue in this case. The lawsuits 

against Qualcomm are about Qualcomm’s anticompetitive conduct over the past decade and 

beyond.

Qualcomm argues that Apple should be required to log post-complaint communications 

subject to the common interest doctrine because it claims the common legal interest among the 

parties is “tenuous.” All of the parties with whom Apple has a common interest agreement have 

been sued by Qualcomm, have sued Qualcomm, or have been subpoenaed by Qualcomm in this 

litigation or related actions; thus, the relationship that these parties have with Apple is not merely 

a commercial one. See AT&T, 642 F.2d at 1299-1300 (parties may have a common interest if 

they “anticipate litigation against a common adversary on the same issue or issues”). But even if 

these parties had only a commercial relationship with Apple, a common commercial interest is 

sufficient to avoid waiver of work product protection. Pecover v. Elec. Arts Inc., No. C08–2820 

CW (BZ), 2011 WL 6020412, at *2 (N.D. Cal. Dec. 2, 2011) (“Thus, even if I were to find that 

the sole shared interest between Defendant and the NFL were commercial or financial in nature, 

that shared interest would be sufficient to maintain the work product protection over the email at 

issue.”); but see Rembrandt Patent Innovations, LLC v. Apple Inc., No. C 14-05094 WHA, 2016 

WL 9114005 (N.D. Cal. Feb. 12, 2016) (recognizing that the Ninth Circuit has not “addressed 

the proper standard for waiver of work-product immunity”). Apple’s post-complaint 

communications with these parties are directly related to legal strategy in this lawsuit and related 

lawsuits. 

Qualcomm’s demand is simply intended to chill communications between Apple and 

those who share a common interest in these cases. The log Qualcomm is seeking would add to 

the substantial burden Qualcomm has already imposed on Apple in discovery, and further would 

 10 In an effort to avoid unnecessary privilege disputes with Qualcomm, Apple will log privileged or protected postcomplaint communications (other than those subject to the common interest doctrine) that do not concern these 

lawsuits or related lawsuits between Apple, Qualcomm, and the Contract Manufacturers. 

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 5 of 9
5

reveal information about the parties’ litigation strategy to the extent it showed the volume, 

frequency, timing, and types of common interest communications between Apple and others. 

This request is onerous and demonstrates why post-suit communications are regularly exempted 

from privilege logs. 

B. Apple Has Met the Court’s Substantial Completion Deadline.

As set forth in the status report it is filing today, Apple has: (1) produced over 2.6 

million documents (16.5 million pages), (2) completed its review of over 350,000 nonresponsive documents; (3) completed an initial review of over 1.3 million additional documents, 

which are currently in the quality control process. Apple believes it has substantially completed 

its review of documents for this case, and is working quickly to review its remaining documents. 

Apple will also continue producing documents as (1) documents that have already been reviewed 

are electronically processed and stamped for production; (2) further documents, including 

documents currently in the quality control process, are moved into production; and (3) 

documents currently coded as privileged are downgraded during the preparation of Apple’s 

privilege log. Apple will also be separately producing documents for one custodian for whom 

the parties have set a separate production deadline. 

Any dispute Qualcomm may wish to raise about whether Apple’s production is 

“substantially complete” is premature. Apple shipped a production of approximately 250,000 

documents yesterday, and will be filing a status report with the Court today. To the extent 

Qualcomm has concerns after receiving those documents and that report, Apple is available to 

meet and confer.11 

III. Joint Notification of Potential Discovery Issues

Qualcomm and Apple hereby inform the Court that they continue to discuss an issue 

regarding the review and production of certain types of files. Qualcomm has requested further 

information from Apple; Apple is collecting information and preparing a response. As a result, a 

dispute has not yet ripened for this Court’s attention. However, in light of the December 15 

deadline by which Qualcomm and Apple must file any discovery disputes, the parties wish to 

notify the Court that this additional dispute may be outstanding. 

 11 Qualcomm’s request to compel the immediate production of documents—which it raised for the first time less 

than an hour before the deadline to file this joint statement—is also unwarranted. Apple will produce remaining 

non-privileged responsive documents as soon as practicable. 

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 6 of 9
Dated: December 15, 2017

Respectfully submitted,

CRAVATH, SWAINE & MOORE LLP

/s/ Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

Worldwide Plaza

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

Asim M. Bhansali

Eugene M. Paige

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

Tel: (415) 676-2289

Fax: (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

Tel: (212) 369-6000

Fax: (212) 369-6001

richard.taffet@morganlewis.com

Willard K. Tom

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

Tel: (202) 739-3000

Fax: (202) 739-3001

willard.tom@morganlewis.com

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 7 of 9
Donn P. Pickett

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105

Tel: (415) 442-1000

Fax: (415) 442-1001

donn.pickett@morganlewis.com

geoffrey.holtz@morganlewis.com

Attorneys for Qualcomm Incorporated

/s/ Edward H. Takashima

Edward H. Takashima

etakashima@bsfllp.com

BOIES SCHILLER FLEXNER LLP

401 Wilshire Blvd, Suite 850

Santa Monica, CA 90401

Tel: (310) 752-2400

Fax: (310) 752-2490

Attorney for Non-Party APPLE INC.

Case 5:17-cv-00220-LHK Document 404 Filed 12/16/17 Page 8 of 9
FILER’S ATTESTATION

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

being used to file this Joint Discovery 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 404 Filed 12/16/17 Page 9 of 9