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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

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JOINT STATUS REPORT

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Plaintiffs Federal Trade Commission (“FTC”) and the MDL Plaintiffs (together, 

“Plaintiffs”) and Defendant Qualcomm Incorporated (“Qualcomm”) hereby submit this Joint 

Status Report pursuant to Magistrate Judge Cousins’s March 30, 2018 Order (ECF No. 664) and 

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

No. 427; the “Re-Review Order”). 

A. Status of Re-Review

The Court’s April 6, 2018 Case Management Order required that Qualcomm “complete 

its privilege re-review of documents for Mr. Aberle by May 2, 2018”. (ECF No. 678.) As 

Qualcomm stated at the May 4, 2018 Discovery Status Hearing, Qualcomm has complied with 

that portion of the Case Management Order by timely re-reviewing the required Aberle

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. Qualcomm maintained without 

change its privilege assertions for 38,732 documents. Specifically, on May 2, 2018, Qualcomm 

produced revised privilege log entries for 23,218 documents that remained on its privilege logs 

after re-review, as well as new log entries for 15,514 previously redacted documents in which 

redactions were not changed. Qualcomm made some change to its privilege assertions for 

13,901 documents. Specifically, Qualcomm produced 8,572 documents (either in redacted form 

or without redactions) that had previously been withheld as privileged, as well as 5,329 

previously redacted documents on which it reduced or eliminated redactions. The newly 

redacted documents were logged as well. 

The Re-Review Order required Qualcomm to “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 

Mr. [Jeffrey] Altman no later than May 15, 2018”. (MDL ECF No. 427.) Qualcomm has 

complied with that portion of the Re-Review Order by timely re-reviewing the required Altman

documents, revising its production of those documents to the extent necessary, and preparing or 

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revising log entries for documents withheld in whole or in part. Qualcomm maintained without 

change its privilege assertions for 12,330 documents. Specifically, on May 15, 2018, Qualcomm 

produced revised privilege log entries for 6,464 documents that remained on its privilege logs 

after re-review, as well as new log entries for 5,872 previously redacted documents in which 

redactions were not changed. Qualcomm made some change to its privilege assertions for 8,511

documents. Qualcomm produced 5,657 documents (either in redacted form or without 

redactions) that had previously been withheld as privileged, and Qualcomm produced 2,854

previously redacted documents on which it reduced or eliminated redactions. The newly 

redacted documents were logged as well.

Qualcomm estimates that it completed re-review of a total of 77,000 redacted or withheld 

documents by May 15, and that approximately 33,000 documents remain to be re-reviewed by 

July 1, 2018. As a result of this re-review process, to this point, Qualcomm has produced 15,667 

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

privileged, and 8,932 previously redacted documents on which it reduced or eliminated 

redactions.1 Some but not all of the previously withheld or redacted content had already been 

produced in other documents before the re-review productions.

C. The Parties Met and Conferred Concerning Plaintiffs’ Prior Request for In 

Camera Review

In the April 18, 2018 Joint Status Report (ECF No. 688 at 5), Plaintiffs requested the in 

camera review of eight documents. At the May 4, 2018 Discovery Status Hearing, the Court 

directed the Parties to meet and confer with respect to these eight documents. (ECF No. 724.) 

On May 11, 2018, Qualcomm and the Plaintiffs met and conferred with respect to the eight 

documents. Qualcomm agreed to unredact one document in its entirety and to partially unredact 

 1 Qualcomm produced for Mr. Jacobs 1,438 withheld and 749 redacted documents (See ECF No. 

688); for Mr. Aberle 8,572 withheld and 5,329 redacted documents; and for Mr. Altman 5,657 

withheld and 2,854 redacted documents. 

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another document, and provided further information about and answered Plaintiffs’ questions 

concerning the eight documents. 

Plaintiffs’ Position

Plaintiffs respectfully request that the Court review in camera four of the eight documents

identified in the April 18, 2018 Joint Status Report (ECF No. 688 at 5), with respect to which 

Qualcomm has failed to provide information sufficient to demonstrate that a privilege applies. 

1. QNDCAL04966104 (“Presentation/Report disclosing legal advice regarding licensing of QC 

patents (disclosing legal implications of corporate reorganization for licensing and 

litigation).”). The privilege log fails to identify any attorney involved in providing legal 

advice, and during a meet and confer Qualcomm’s counsel was unable to identify any 

attorneys involved in the creation of the document. The cover email indicates this 

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

nothing in the cover email or the body of the document suggests that any attorneys were 

involved in creating any portion of the document, or that any statements in the document 

originated with attorneys.

2 Qualcomm’s counsel has represented that the each redacted 

statement relates to litigation, potential litigation, or government action, but that is irrelevant: 

statements related to such matters are not privileged if written by business personnel for 

inclusion in a business presentation. Qualcomm’s business personnel naturally make 

statements on such matters, as Qualcomm’s business consists largely of negotiating patent 

licenses (e.g., general predictions about how litigation threats or regulatory changes might 

impact future commercial negotiations). Such business discussions do not constitute a 

confidential communication related to the purpose of resolving a legal dilemma. Instead, such 

discussions have the purpose of resolving a business dilemma: predicting how Qualcomm’s 

ability to resolve commercial negotiations will impact its profitability in future years.

As Qualcomm has not demonstrated that the statements in the presentation were authored by 

an attorney or made for the purpose of obtaining legal advice, the Court need not reach the

question of whether the statements would be privileged if they had been authored by an inhouse attorney.

2. QNDCAL04960985 (“Email chain disclosing a request for legal advice, legal advice and 

attorney work product regarding arbitration issues (Samsung chip business).”). During 

the parties’ meet and confer, Qualcomm’s counsel represented that the redacted portions 

consisted of: (1) a request for legal advice directed by Mr. Keitel to Mr. Lupin (copying 

 2 See QNDCAL04966103 (email from Mr. Jacobs to Mr. Jha, July 28, 2007). The presentation bears 

a header “Attorney Client Privileged Prepared at the Direction of Counsel,” but this boilerplate 

appears on virtually every draft presentation produced by Qualcomm, including numerous 

presentations that Qualcomm concedes were created for business purposes and are not privileged.

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Mr. Jha and another non-attorney), and (2) Mr. Altman offering unprompted legal advice 

in response to an email from Mr. Jha. 

Qualcomm’s explanation fails to establish that Mr. Keitel’s email to Mr. Lupin was made 

primarily for a legal purpose. An email sent simultaneously to both non-lawyers and inhouse counsel is not presumptively privileged, as in this Circuit “[n]o privilege can attach 

to any communication as to which a business purpose would have served as a sufficient 

cause, i.e., any communication that would have been made because of a business 

purpose, even if there had been no perceived additional interest in securing legal 

advice.”3 And the context fails to support a privilege assertion, as Mr. Jha responded to 

Mr. Keitel’s redacted email at length with an exclusively business discussion, beginning 

“I think [Mr. Keitel’s redacted suggestion] is exactly the wrong approach, and would 

appreciate a consultation before kicking off a lot of busy work.” See QNDCAL04960985.

3. QNDCAL04961414 (“Email chain disclosing a request for legal advice and legal advice 

regarding licensing of QC patents.”). This description is deficient on its face as it fails to 

identify the individuals who requested and provided the advice. Qualcomm’s counsel 

represented that the redacted portion of the document constituted a request for legal 

advice directed by Mr. Blecker (non-attorney) to Mr. Hartogs (attorney). But this fails to 

demonstrate that a privilege applies to either of the two redacted portions of the 

document, one of which appears to be an email written by Mr. Altman, rather than Mr. 

Hartogs. 

The Court should review this entry because Mr. Altman served in a business role and the 

redacted communications were sent to business people for business purposes, rather than 

for a purpose related to providing legal advice, as demonstrated by the fact that the chain 

was subsequently forwarded to numerous business executives discussing a business 

matter. While the email spans several pages, the Court need only review the first two 

pages (QNDCAL04961414 and -1415), which can be summarized as follows:

• Non-redacted email chain regarding licensing negotiations sent from a third party (BenQ)

to Mr. Hartogs, et. al. See -1415

• 9:54 a.m. (10/5/04): Mr. Hartogs forwards the BenQ email chain to an unknown group of 

people. See -1415, first line at top of page. (Unknown if Mr. Hartogs included a message)

• 11:07 a.m. (10/5/04): Mr. Skiver (non-attorney) contributes to the chain, addressing an 

unknown group. See -1414 (last line of page). (Unknown if Mr. Skiver included a 

message)

 3 Fourth Age Ltd. v. Warner Bros. Digital Dist., 2015 WL 12720324 (C.D. Cal. Aug. 6, 

2015) at *6 (emphasis in original) (quoting McCaugherty v. Siffermann, 132 F.R.D. 234, 238 

(N.D. Cal. 1990)); see also In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 809 

(E.D. La. 2007) (no privilege attaches to emails “addressed to both lawyers and non-lawyers for 

review, comment, and approval.”). 

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• 12:36 p.m. (10/5/04): Mr. Blecker forwards the email to mixed group of business people 

and attorneys, content of message redacted. See -1415. (Unclear if redaction includes 

only material written by Mr. Blecker, or also includes material written by Mr. Skiver 

or/and Mr. Hartogs) 

• 6:10 p.m. (10/5/04): Mr. Altman forwards the chain to an unknown, but clearly different, 

group of people, his comment redacted. See -1414. 

• 3:49 p.m. (10/6/04) and 8:04 p.m. (10/6/04): Non-lawyer business persons forward the 

chain, to an unknown group, discussing business issues. Id.

• 9:59 p.m. (10/6/04): Mr. Altman forwards to a group of business persons, including no 

lawyers other than himself, providing business advice regarding his strategy and timing 

for terminating a license. (His comments are not redacted as they are business advice.) 

• 4:58 p.m. (10/7/04): Ms. Johnson replies to the same group of business persons,

addressing purely business issues related to the timing of license termination. 

4. QNDCAL04963783: (“Email chain disclosing legal advice regarding royalties.”). The 

Court should review this document because all non-redacted portions of the redacted 

email relate to business negotiations rather than legal advice, and the description is too 

vague to sustain Qualcomm’s burden to demonstrate that a communication “regarding 

royalties” relates to legal advice rather than business advice. 

The redacted communication at issue is from Mr. Steve Altman, an attorney who also 

performed a business role. The only request for advice to which Mr. Altman responds is a 

request directed to both Mr. Altman and another business person (Mr. Don Schrock) for 

“any thoughts that would justify the trip.” Mr. Altman provides his views on strategy and 

business options for a licensing negotiation, the last portion of which is redacted. 

Qualcomm’s Position

Qualcomm met and conferred with Plaintiffs regarding its privilege claims with respect to 

the eight redacted documents that Plaintiffs had requested in the April 18, 2018 Joint Status 

Report that the Court review in camera (ECF No. 688 at 5). As a result of those discussions, 

Qualcomm agreed to withdraw the redactions on one of the documents and agreed to withdraw 

part of the redactions on another document. Plaintiffs agreed to withdraw their objections to 

Qualcomm’s redactions on two of the documents. Plaintiffs now seek in camera review for four 

documents. Notably, in each of these documents, the redacted material constitutes a small 

fraction of the total content. Nevertheless, Plaintiffs seek removal of even these narrowlyCase 5:17-cv-00220-LHK Document 739 Filed 05/16/18 Page 6 of 11
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tailored redactions. Qualcomm has explained its position with respect to these documents during 

the meet and confer process, and now responds to Plaintiffs’ contentions regarding these four 

documents as follows:

1. QNDCAL04966104: This PowerPoint presentation is nearly 11 years old, which has 

made it difficult for Qualcomm to identify the specific lawyer or lawyers who provided 

the legal advice contained therein. Nevertheless, there can be little doubt from the 

content of the redacted portions that they convey legal issues and guidance provided by 

counsel. The redacted information conveys counsel’s views on issues related to thenpending litigations and the legal principles at issue in those litigations—including even a 

reference to a specific court decision that counsel viewed as relevant precedent—as well 

as counsel’s views on potential government regulatory actions. The mere fact that the 

lawyer or lawyers who provided this advice were not copied on the email forwarding this 

PowerPoint presentation does not strip the lawyers’ advice of its privileged character.

2. QNDCAL04960985: The redacted communication from Bill Keitel on the second page 

of the document was a request to Lou Lupin, then Qualcomm’s General Counsel, that he 

conduct a legal analysis and investigation of an issue that Mr. Keitel identified. Mr. 

Lupin was the only individual included in the “To” line of Mr. Keitel’s email. Plaintiffs 

assert that the “context” of the email undercuts Qualcomm’s privilege assertion because 

the response to Mr. Keitel’s email was addressed to business issues. That argument fails. 

Qualcomm has not redacted the response because it addresses the business consequences 

of pursuing the legal inquiry raised by Mr. Keitel, but that does not make Mr. Keitel’s 

request, sent directly to the General Counsel of the company, any less of a legal inquiry. 

Qualcomm did exactly what it should have done here in distinguishing between 

Mr. Keitel’s request for a legal analysis (which it redacted) and Mr. Jha’s businessfocused response (which it produced). Plaintiffs do not appear to challenge the redaction 

of Steve Altman’s email on the first page of the document. 

3. QNDCAL04961414: In the redacted portion of the second page of this communication, 

Mike Hartogs, then Division Counsel for Qualcomm’s licensing business, provides legal 

advice to others in the licensing business regarding a potential breach of contract and the 

relevant contractual provisions concerning the consequences of such a breach. Other 

employees in the licensing business, Gerald Skiver and Marv Blecker, respond with their 

thoughts on how to proceed in light of Mr. Hartogs’s advice, seeking his advice on their 

suggestions. In the redaction on the first page of the document, Mr. Altman forwards and 

describes the legal advice provided by Mr. Hartogs. Again, Qualcomm took care to 

redact only the portions of the communication relating to legal advice and requests for 

legal advice, while producing the great majority of the document’s content. 

4. QNDCAL04963783: In the redacted portion of this communication, Mr. Steve Altman 

(who was an attorney at the time) provides legal advice to a group of non-lawyers at 

Qualcomm regarding the proper interpretation of a license agreement. Plaintiffs focus on 

other emails in the chain discussing business issues, but the inference they draw from 

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those unredacted emails is not warranted. Although the unredacted portions of this email 

deal with business issues, lawyers can and sometimes do respond to business discussions 

with unprompted legal advice relevant to the business issues being discussed. That is 

what Mr. Altman did here, in order to inform his colleagues about a legal issue he 

apparently found to be pertinent to the discussion.

D. No Current Request for In Camera Review of Documents Produced on May 2

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

request in camera review for up to 50 document families”. (MDL ECF No. 427.) As reflected 

in the April 16, 2018 Joint Status Report (ECF No. 688), Qualcomm agreed that if Plaintiffs 

were to request in camera review of fewer than 50 document families on May 16, Qualcomm 

would not object to a request by Plaintiffs for in camera review in the next joint status report 

(currently due on June 18, 2018) on the grounds that the number exceeds the number permitted 

by the Court, as long as the total number of document families for which in camera review is 

requested on May 16 and June 18 does not exceed 100. (ECF No. 688 at 5.) Plaintiffs do not 

request in camera review of any documents in this Joint Status Report and reserve the right to 

request in camera review of up to 100 documents families in the joint status report due on 

June 18, 2018. 

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

Dated: May 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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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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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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