CASE NO. 17-CV-00220-LHK-NMC 

CASE NO. 17-MD-02773-LHK-NMC

DEFENDANT QUALCOMM INCORPORATED’S 

STATUS REPORT RE: CM CUSTODIAL PRODUCTIONS 

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CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Richard J. Stark (pro hac vice) 

rstark@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 

rvannest@keker.com 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 676-2289 

Facsimile: (415) 397-7188 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

Additional counsel in the signature block. 

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 

MORGAN, LEWIS & BOCKIUS LLP 

Donn P. Pickett (SBN 72257) 

donn.pickett@morganlewis.com 

Geoffrey T. Holtz (SBN 191370) 

geoffrey.holtz@morganlewis.com 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

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

DEFENDANT QUALCOMM 

INCORPORATED’S STATUS 

REPORT REGARDING NONPARTY CONTRACT 

MANUFACTURERS’ CUSTODIAL 

PRODUCTIONS 

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 534 Filed 02/02/18 Page 1 of 5
CASE NO. 17-CV-00220-LHK-NMC 

CASE NO. 17-MD-02773-LHK-NMC

DEFENDANT QUALCOMM INCORPORATED’S 

STATUS REPORT RE: CM CUSTODIAL PRODUCTIONS 

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On January 17, 2018, the Court ordered non-parties Compal Electronics, 

Inc., FIH Mobile Ltd., Hon Hai Precision Industry Co., Ltd., Pegatron Corporation, and 

Wistron Corporation (collectively, the “CMs”) to complete their document production to 

Defendant Qualcomm Incorporated (“Qualcomm”) by January 26, 2018. (ECF No. 493.) 

The Court also ordered Qualcomm to file any motion for sanctions related to the CMs’ 

document production by February 2, 2018. (Id.) Qualcomm does not have sufficient 

information to move for sanctions at this time and instead submits the following status 

report to detail certain deficiencies in the CMs’ allegedly complete document production. 

In Qualcomm and the CMs’ January 26, 2018 Joint Status Report, the 

CMs represented that their January 26 productions completed the CMs’ production of 

responsive, non-privileged documents in the above-captioned actions. (ECF No. 518.) 

Qualcomm cannot confirm that the CMs have completed their document productions. 

Qualcomm is concerned that the CMs either have failed to produce responsive documents 

in their possession or that spoliation has occurred. Qualcomm details two particularly 

egregious examples below. 

Brian Chong: Wistron proposed Brian Chong as one of its original 

seven custodians on October 13, 2017.1 Mr. Chong is Wistron’s former Chief of Product 

Planning and New Technology Development. Mr. Chong has been employed by Wistron 

since 2001, negotiated Wistron’s Subscriber Unit License Agreement (SULA) with 

Qualcomm in 2007, and subsequently communicated with Qualcomm about patent 

licensing. Mr. Chong is the only Wistron employee who has been disclosed as likely to 

testify for the FTC at trial in this matter. Wistron has offered to make Mr. Chong 

available for deposition on March 12-13, 2018 in Taipei. 

Although the CMs have produced approximately 740,000 documents, and 

Wistron has produced over 70,000 documents, only 159 documents are from 

 

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 Wistron later agreed to add two additional custodians. 

Case 5:17-cv-00220-LHK Document 534 Filed 02/02/18 Page 2 of 5
2 CASE NO. 17-CV-00220-LHK-NMC 

CASE NO. 17-MD-02773-LHK-NMC 

DEFENDANT QUALCOMM INCORPORATED’S 

STATUS REPORT RE: CM CUSTODIAL PRODUCTIONS 

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Mr. Chong’s custodial files. None of the documents date before February 16, 2017. 

None of Mr. Chong’s produced documents contain discussions or analysis of any of 

Wistron’s license agreement negotiations with Qualcomm or any other entity. Notably, 

Qualcomm has produced from its own files more than twice as many documents sent to 

or from Mr. Chong than has Wistron—the company where he worked since 2001. 

Alex Yeh: On October 30, 2017, Qualcomm proposed Alex Yeh as a 

Wistron custodian likely to have documents related to patent licensing negotiations. 

Mr. Yeh communicated with Qualcomm during negotiations of Wistron’s license 

agreement with Qualcomm and was employed by Wistron until April 2017. In a 

November 14 Joint Motion in the related S.D. Cal. Action, the CMs represented that 

Mr. Yeh had “left Wistron’s employ, and Wistron does not have [his] documents in its 

possession, custody, or control”. In a December 6 letter, Qualcomm responded that 

Wistron should have preserved Mr. Yeh’s documents because it clearly anticipated 

litigation well before April 2017 when Mr. Yeh left, which was months after Wistron had 

begun withholding royalty payments from Qualcomm. The CMs subsequently agreed to 

“review and produce Mr. Yeh’s documents that are reasonably accessible”. (Dec. 12, 

2017 Ltr. from J. Rho to R. Stark.) 

Wistron has only produced six documents from Mr. Yeh’s custodial files. 

All six of the documents are dated April 10, 2017. None of the six documents concern 

licensing negotiations with Qualcomm or any other entity. Qualcomm has produced 173 

documents sent to or from Mr. Yeh from its own files. 

Further Investigation: Qualcomm does not yet have enough information 

about the CMs’ productions to draw specific conclusions or seek relief at this time. 

Qualcomm expressed its concerns to the CMs during a February 1 meet and confer, and 

Qualcomm sent a letter to the CMs seeking information about why so few documents 

were produced over such limited date ranges for several custodians. Specifically, 

Qualcomm has requested information regarding each CM’s litigation hold and document 

Case 5:17-cv-00220-LHK Document 534 Filed 02/02/18 Page 3 of 5
3 CASE NO. 17-CV-00220-LHK-NMC 

CASE NO. 17-MD-02773-LHK-NMC 

DEFENDANT QUALCOMM INCORPORATED’S 

STATUS REPORT RE: CM CUSTODIAL PRODUCTIONS 

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retention policies, and each CM’s ability to recover documents.

Accordingly, Qualcomm is not moving for sanctions at this point, but 

rather seeks an explanation from the CMs regarding these deficiencies in their 

production. Qualcomm reserves the right to move for relief upon further investigation. 

Dated: February 2, 2018 Respectfully submitted, 

 

CRAVATH, SWAINE & MOORE LLP, 

/s/ Richard J. Stark 

Richard J. Stark

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

rstark@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 

Case 5:17-cv-00220-LHK Document 534 Filed 02/02/18 Page 4 of 5
4 CASE NO. 17-CV-00220-LHK-NMC 

CASE NO. 17-MD-02773-LHK-NMC 

DEFENDANT QUALCOMM INCORPORATED’S 

STATUS REPORT RE: CM CUSTODIAL PRODUCTIONS 

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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 Qualcomm Incorporated 

Case 5:17-cv-00220-LHK Document 534 Filed 02/02/18 Page 5 of 5