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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC

No17-md-2773-LHK-NMC

BOIES SCHILLER FLEXNER LLP

William A. Isaacson (Pro Hac Vice App. to be 

filed) 

DC Bar No. 414788, wisaacson@bsfllp.com

Karen L. Dunn (Pro Hac Vice App. to be 

filed) 

DC Bar No. 1002520, kdunn@bsfllp.com

Amy J. Mauser (Pro Hac Vice App. to be 

filed)

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, SBN 270945

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.

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, NY 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

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

NON-PARTY APPLE INC. AND 

DEFENDANT QUALCOMM 

INCORPORATED’S JOINT STATUS 

REPORT

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 590 Filed 02/23/18 Page 1 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC

No17-md-2773-LHK-NMC

Pursuant to the Court’s February 15, 2018 Order, Non-Party Apple Inc. (“Apple”) and 

Defendant Qualcomm Incorporated (“Qualcomm”) submit this Joint Status Report to address 

discovery issues identified by the Court. 

I. Apple’s Document Production 

A. Apple’s Position

To date, Apple has produced more than 4 million documents totaling over 37 million 

pages. Apple’s anticipated document production is complete, with the following exceptions: 

(1) One written common interest agreement has not been produced pursuant to an 

objection from the other party to the agreement. That agreement is the subject of a 

joint discovery statement and has been submitted for in camera review. (ECF 

536). 

(2) Apple is finalizing a production of documents it has downgraded from its privilege 

logs, and anticipates completing that production no later than February 26, 2018. 

(3) Apple is reviewing certain privilege log entries identified by Qualcomm as part of 

the meet and confer process, and may downgrade some of those documents from 

its privilege logs. If so, Apple will produce any such downgrades that are 

responsive and non-privileged on a rolling basis. 

Qualcomm has asked Apple to produce privilege downgrades from the custodial files of 

Messrs. Schafer and Schell—including any downgrades from certain privilege log entries 

Qualcomm identified on February 22—by February 25. Apple has advised Qualcomm that Apple 

anticipates it will complete its production of downgrades from Apple’s self-initiated privilege log 

review by February 26, and will attempt to complete that production by February 25. Apple will 

attempt to produce any documents Qualcomm identified in its February 22 correspondence that 

Apple agrees are non-privileged and responsive by February 26. 

B. Qualcomm’s Position

Since the February 15, 2018 hearing, Qualcomm has received one production, totaling 

30,242 documents. The production, which arrived on February 21, 2018, included over 2,300 

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 2 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC

No. 17-md-2773-LHK-NMC

documents from the custodial files of Messrs. Schafer and Schell, whose depositions are 

scheduled to begin on February 28, 2018. Qualcomm has requested that, if Apple has any more 

documents pending in its production from the custodial files of either of these individuals, Apple 

produce them no later than February 25, 2018, in order for the documents to be processed and 

reviewed in advance of the depositions.1 

Apple has also informed Qualcomm that some of the “documents it has downgraded from 

its privilege log” mentioned in sub-paragraph (2) above may be subject to third-party notice 

and/or consent requirements, and that Apple will inform Qualcomm by February 25 or 26, 2018, 

whether any of those documents need to be withheld.

As discussed in more detail below, Qualcomm continues to believe that Apple has not yet 

produced a large number of responsive, non-privileged documents because of unjustified claims 

of privilege or other protection from discovery.

II. Apple’s Privilege Log

A. Apple’s Position

Apple completed its service of its Amended Privilege Log on February 19, 2018. 

Qualcomm has asked Apple to re-examine certain privilege log entries as part of the meet 

and confer process. In response, Apple has downgraded some documents, and is producing 

responsive non-privileged downgrades on a rolling basis. Apple and Qualcomm are continuing to 

meet and confer regarding privilege log entries identified by Qualcomm. Apple and Qualcomm 

are next scheduled to meet and confer on February 26, 2018. Qualcomm has not raised any issues 

concerning Apple’s privilege determinations other than with respect to a discrete set of privilege 

log entries reflecting communications with third parties. If Qualcomm raises any such issues, 

Apple will meet and confer with Qualcomm. 

 

1 Qualcomm disputes Apple’s assertion that it has engaged in a “self-initiated privilege log 

review”. Apple materially revised the entirety of its privilege log following questions and 

concerns Qualcomm raised about the original December 29, 2017 log, as reflected in the 

January 12, 2018 status report. 

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 3 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC

No. 17-md-2773-LHK-NMC

B. Qualcomm’s Position

Apple’s revised privilege log continues to have hundreds of entries that appear, based on 

the information on the log, not to be privileged or otherwise protected from discovery, such as 

communications between Apple and third parties. On February 16, 2018, Qualcomm sent to 

Apple a list of 1,145 such log entries from the first two tranches of Apple’s revised log, dated 

February 9 and 15, 2018, and requested that Apple review its privilege claims as to those entries. 

During a meet and confer on February 21, 2018, Apple reversed its privilege calls for all of those 

entries except for (i) communications with one set of third parties affiliated with a trade 

association, on the basis of a joint representation by counsel, and (ii) communications with Intel 

and Samsung, on the basis of Apple’s purported common interest agreements with those 

companies. Apple has not yet identified the Intel and Samsung communications that it continues 

to withhold on that basis, but based on the identities of the third parties over which Apple is not 

standing on its privilege claims, it is downgrading at least 1,069 entries, representing 93% of the 

documents Qualcomm identified as unwarranted assertions of privilege.

On February 22, 2018, Qualcomm sent to Apple a list of 732 log entries from the third 

tranche of its revised log, dated February 19, 2018. Apple is currently reviewing those 732 

entries. Qualcomm and Apple have scheduled a meet and confer regarding these entries for 

February 26, 2018.

As noted above, Apple is continuing to withhold communications pursuant to its purported 

common interest agreements, including those withheld under the written agreement with Samsung 

that was submitted to the Court for in camera review. Qualcomm is still assessing the 

appropriateness and validity of the common interests that Apple has asserted. Qualcomm is also 

continuing its more general assessment of the more than 165,000 entries on Apple’s revised 

privilege log. That analysis includes Qualcomm’s assessment of Apple’s practice of 

“downgrading” documents from its initial privilege log but not producing the downgraded 

documents, apparently based on a decision that the document was not responsive—even though 

Apple previously deemed the document responsive and took the time to put it on the privilege log. 

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 4 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC

No. 17-md-2773-LHK-NMC

Qualcomm is of the view that any re-review of documents over which Apple previously asserted 

privilege should be limited to a re-review of that privilege assertion, and not a re-review of 

responsiveness. Accordingly, on February 23, Qualcomm requested further information from 

Apple to evaluate which documents Apple had withheld on the basis of a purported “downgrade” 

to non-responsive through its re-review process. Qualcomm intends to continue to meet and 

confer with Apple regarding its revised privilege log.

III. Deposition Scheduling

Apple and the parties have scheduled all depositions of Apple employees and former 

employees that Qualcomm seeks to depose in connection with the above-captioned cases, 

including the deposition of Bruce Sewell.

Dated: February 23, 2018 Respectfully submitted,

By: /s/ Edward H. Takashima

William A. Isaacson 

wisaacson@bsfllp.com

Karen L. Dunn 

kdunn@bsfllp.com

Amy J. Mauser

amauser@bsfllp.com

BOIES SCHILLER FLEXNER LLP

1401 New York Avenue, N.W.

Washington, DC 20005

Telephone: (202) 237-2727

Facsimile: (202) 237-6131

Edward H. Takashima 

etakashima@bsfllp.com 

BOIES SCHILLER FLEXNER LLP

401 Wilshire Blvd, Suite 850 

Santa Monica, CA 90401

Telephone: (310) 752-2400

Facsimile: (310) 752-2490

Attorneys for Non-Party APPLE INC.

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 5 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC

No. 17-md-2773-LHK-NMC

By: /s/ Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza 

825 Eighth Avenue

New York, NY 10019-7475

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 94111-1809 

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 10178-0060 

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 

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 6 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC

No. 17-md-2773-LHK-NMC

Tel: (415) 442-1000 

Fax: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 7 of 8
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APPLE AND QUALCOMM'S JOINT STATUS REPORT

No. 17-cv-0220-LHK-NMC, No. 17-md-2773-LHK-NMC

No17-md-2773-LHK-NMC

FILER’S ATTESTATION

I, Edward H. Takashima, 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/ Edward H. Takashima

Edward H. Takashima

Case 5:17-cv-00220-LHK Document 590 Filed 02/23/18 Page 8 of 8