NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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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. 

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.’S BRIEF 

REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

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 639 Filed 03/22/18 Page 1 of 7
1 

NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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Non-Party Apple Inc. (“Apple”) submits the following statement regarding its common 

interest agreement with Samsung Electronics Co., Ltd. (“Samsung”). Pursuant to the Court’s 

March 2, 2018 Order (ECF No. 600), this brief addresses Apple’s position on: (1) whether the 

common interest agreement is relevant; (2) whether the common interest agreement is privileged 

or constitutes attorney work product protection; and (3) whether the document qualifies as a 

common interest agreement. 

Apple does not object to producing its June 23, 2016 Common Interest Agreement with 

Samsung. As explained in the February 5, 2018 Joint Discovery Statement, Apple has refrained 

from producing the Apple-Samsung Common Interest Agreement only based on Samsung’s

objections. (ECF No. 575). Apple is not asserting that the Agreement is privileged or protected 

by work product. Apple is, however, obligated under the Agreement to withhold the agreement 

in light of Samsung’s objection to its production. Apple does contend, however, that the 

Agreement qualifies as a common interest agreement, memorializing a protectable common 

interest between Apple and Samsung concerning worldwide agency investigations into 

Qualcomm’s anticompetitive business practices and agencies’ subsequent enforcement actions. 

I. APPLE IS NOT ASSERTING A RELEVANCE OBJECTION TO THE 

PRODUCTION OF THE COMMON INTEREST AGREEMENT 

Qualcomm served subpoenas on non-party Apple demanding the production of, among 

other items, “All Documents Concerning any Common Interest Agreement you have entered into 

with any Person Concerning Qualcomm, and any Communications relating thereto.” Without 

conceding that such documents were relevant to any party’s claims or defenses (see ECF No. 575 

at 4), Apple agreed to produce written common interest agreements it had entered that might be 

pertinent to this case, and did produce such agreements with several other companies. Apple has 

not produced its agreement with Samsung, however: it cannot do without Samsung’s permission, 

and Samsung has objected to production, asserting that the Common Interest Agreement is 

irrelevant, privileged, and subject to work product protection. 

Apple is not asserting a relevance objection to the production of its Common Interest 

Agreement with Samsung. In an effort to limit unnecessary discovery disputes, Apple agreed to 

Case 5:17-cv-00220-LHK Document 639 Filed 03/22/18 Page 2 of 7
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NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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produce any written common interest agreements upon which it relied, “consistent with the 

confidentiality obligations Apple may owe to third parties.” The only reason Apple is 

withholding the Agreement is because of Samsung’s objection to its production. 

II. APPLE IS NOT ASSERTING A PRIVILEGE OBJECTION TO THE 

PRODUCTION OF THE COMMON INTEREST AGREEMENT 

Apple’s view is that the Common Interest Agreement does not itself reflect any legal 

advice or attorney work product. As a result, Apple has not asserted privilege or work product 

protection over the Common Interest Agreement. 

III. APPLE AND SAMSUNG HAVE A PROTECTABLE COMMON INTEREST1

Parties with common interests may share privileged information and work product with 

each other without destroying the privilege or losing work product protection. “If two or more 

clients with a common interest in a litigated or nonlitigated matter are represented by separate 

lawyers and they agree to exchange information concerning the matter, a communication of any 

such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as 

against third persons.” Restatement (Third) of Law Governing Lawyers, § 76 (2000). “Rather 

than a separate privilege, the ‘common interest’ or ‘joint defense’ rule is an exception to ordinary 

waiver rules designed to allow attorneys for different clients pursuing a common legal strategy to 

communicate with each other.” In re Pacific Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) 

(citing Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965)). 

The existence of a protectable common interest does not hinge on the existence of a 

written common interest agreement; a common interest agreement can be oral, or implied from 

 1

 Apple respectfully submits that the issue of whether the document in question reflects a 

common interest agreement between Apple and Samsung is not a live issue before the Court. The 

February 5, 2018 Joint Discovery Statement concerned only whether the Common Interest 

Agreement was discoverable—i.e., whether Apple must produce, notwithstanding Samsung’s 

objection, the 3-page agreement dated June 23, 2016 between Apple and Samsung. The Joint 

Discovery Statement did not concern the validity of Apple’s assertion of the common interest 

protection or the discoverability of any of Apple’s other communications with Samsung. 

Although Qualcomm has expressed doubts that Apple and Samsung have a common interest (see 

ECF No. 575), it has not raised that dispute in meet-and-confers with Apple or Samsung. If 

Qualcomm chooses to raise that dispute, Apple submits it should be briefed through the standard 

joint discovery briefing process so that the parties can squarely address each other’s arguments. 

Case 5:17-cv-00220-LHK Document 639 Filed 03/22/18 Page 3 of 7
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NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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conduct or from the situation. See United States v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012); 

In re Pacific Pictures, 679 F.3d at 1129; Avocent Redmond Corp. v. Rose Elecs., Inc., 516 

F.Supp.2d 1199, 1203 (W.D. Wash. 2007). The common interest doctrine applies whether or not 

any legal proceedings have actually commenced. See Gonzalez, 669 F.3d at 978. 

The circumstances facing Apple and Samsung establish that the companies had a shared 

legal interest that supports the application of the common interest doctrine, and the Common 

Interest Agreement clearly memorializes that interest. As early as 2014, government agencies 

around the world began investigating Qualcomm’s anticompetitive business practices—practices 

that forced competitors out of the market, artificially inflated the prices of Qualcomm’s baseband 

chipsets, and facilitated Qualcomm’s campaign to charge improper and excessive royalties for its 

patents. Apple and Samsung are two of Qualcomm’s largest customers. Both were victims of 

Qualcomm’s anticompetitive practices, both were beneficiaries of FRAND agreements that 

should have held Qualcomm’s practices in check, and both received requests for information 

from competition agencies investigating Qualcomm’s conduct. Apple and Samsung thus shared a 

common legal interest in cooperating with agency investigations and in the outcome of those 

agency investigations relating to Qualcomm’s market dominance and compliance with its 

FRAND obligations. On June 23, 2016, Apple and Samsung memorialized this common interest 

by executing the Common Interest Agreement. (Agreement ¶¶ 1-4). In 2017, the Federal Trade 

Commission filed suit against Qualcomm, alleging violations of United States antitrust law. 

Thus, at the time Apple and Samsung entered the written Common Interest Agreement, 

legal actions by regulators against Qualcomm were underway, both in the United States and 

around the world. Both Apple and Samsung were (and remain) key witnesses in those agency 

investigations into Qualcomm’s anticompetitive behavior; both Apple and Samsung were (and 

remain) key witnesses in the legal proceedings resulting from those investigations; and both 

Apple and Samsung were victims of Qualcomm’s anticompetitive behavior. Thus, Apple and 

Samsung shared protectable legal interests in their responses to agency inquiries, and in the 

outcome of those legal proceedings. 

Case 5:17-cv-00220-LHK Document 639 Filed 03/22/18 Page 4 of 7
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NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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Courts routinely recognize that where separately represented parties share privileged 

information or work product because of a common interest in existing or anticipated legal 

proceedings, those interests are legal in nature and therefore entitled to protection under the 

common interest doctrine. See, e.g., Gonzalez, 669 F.3d at 979 (holding that the attorney-client 

privilege is not waived where privileged material was shared between co-defendants with aligned 

interests); Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 WL 1088297, at *6 (N.D. 

Cal. Mar. 17, 2014) (holding that the common-interest doctrine protected privileged 

communications between litigants who were all defendants in various, related actions with a 

similar adversary); Youngevity Int’l, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 WL 

4227025, at *5-6 (S.D. Cal. Sept. 22, 2017) (finding common interest protection applied where 

plaintiff shared privileged information with another entity because both plaintiff and the other 

entity anticipated litigation against the same adversary); Hewlett-Packard Co. v. Bausch & Lomb, 

Inc., 115 F.R.D. 308, 310, 312 (N. D. Cal. 1987) (holding that attorney-client privilege was not 

waived where the attorney’s opinion letter was shared with the client’s prospective purchaser, 

because the client anticipated litigation in which the client and the purchaser would be joint 

defendants). This case is no different than one involving a common interest agreement among 

co-plaintiffs or co-defendants. See Narog, 2014 WL 1088297, at *4 (noting that the common 

interest doctrine “extend[s] to interested third parties who have a community of interests with 

respect to the subject matter of the communications.” (internal quotation marks and citation 

omitted)). 

The mere fact that the agency investigations into Qualcomm’s activities, and resulting 

legal proceedings, may result in an outcome that affects Apple and Samsung’s business interests 

does not mean that their shared interests are not legal in nature. Courts consistently recognize 

that business interests and legal interests frequently coincide. See Youngevity, 2017 WL 

4227025, at *4 (upholding the common interest doctrine, while recognizing that “[p]arties may 

have both common commercial and legal interests”). Indeed, virtually all commercial litigation, 

though legal in nature, also impacts the business and commercial interests of the entities involved. 

See Morvil Technology, LLC v. Ablation Frontiers, Inc., 2012 WL 760603, at *2-3 (S.D. Cal. 

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NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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Mar. 8, 2012) (“There may have been an overlap of commercial and legal interests . . . [b]ut this 

does not negate the effect of the legal interest . . . .”). Where business concerns and legal 

concerns coexist, courts still apply the common interest doctrine to shield communications 

between separately represented parties with common interests. For example, in Hewlett-Packard, 

the court held there was no waiver of attorney-client privilege where the client shared its 

attorney’s opinion letter with a potential purchaser. 115 F.R.D. at 310, 312 Even though the 

parties shared privileged information in the context of the potential sale of the company—a 

decidedly commercial endeavor—the non-waiver principle still applied because the parties also

shared a common interest in defending against anticipated litigation. See id.; see also Youngevity, 

2017 WL 4227025, at *4-6; Morvil Technology, 2012 WL 760603, at *2-3. 

The Common Interest Agreement at issue here was explicitly directed at, and limited to, 

legal proceedings. The Common Interest Agreement does not purport to claim a common interest 

over Apple’s and Samsung’s purely business dealings with Qualcomm. Rather, the Common 

Interest Agreement—as evidenced by the plain language of the agreement itself—was designed to 

permit Apple and Samsung to share information related to regulators’ investigations and legal 

proceedings, with the common legal interest that those agency-initiated investigations and 

proceedings would ensure that SEP holders (such as Qualcomm) do not abuse their patent rights, 

do not engage in anticompetitive behavior, and abide by their commitments to license their 

standard-essential patents on fair, reasonable, and nondiscriminatory terms. It is these shared 

legal interests that Apple and Samsung sought to further by entering into the Common Interest 

Agreement at issue.2

 2

 It is well-settled that a written common interest agreement is not necessary to the 

application of the common interest privilege. See Gonzalez, 669 F.3d at 979 (“[I]t is clear that no 

written agreement is required, and that [the common interest agreement] may be implied from 

conduct and situation, such as attorneys exchanging confidential communications from clients 

who are or potentially may be codefendants or have common interests in litigation.”); Pacific 

Pictures, 679 F.3d at 1129 (holding that the common interest doctrine applies where “the parties 

. . . make the communication in pursuit of a joint strategy in accordance with some form of 

agreement—whether written or unwritten”). Thus, even if the Court determines that the written 

Common Interest Agreement between Apple and Samsung does not qualify as a common interest 

agreement, this will not end the inquiry as to whether Apple’s communications with Samsung are 

protectable under the common interest doctrine. That determination will need to be made on a 

Case 5:17-cv-00220-LHK Document 639 Filed 03/22/18 Page 6 of 7
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NON-PARTY APPLE, INC.’S BRIEF REGARDING APPLE/SAMSUNG 

COMMON INTEREST AGREEMENT 

CASE NOS. 5:17-CV-00220-LHK-NMC & 5:17-MD-02773-LHK-NMC 

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* * * 

Apple does not object to the production of the June 23, 2016 Common Interest Agreement 

between Apple and Samsung, and is willing to produce that document. Apple respectfully 

submits, however, that a protectable common interest does exist between Apple and Samsung, as 

memorialized in the Agreement, and the document thus qualifies as a common interest agreement. 

Dated: March 6, 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.

 

document-by-document basis based on the nature of the communications, the circumstances 

surrounding those communications, and the nature of the common interest shared by Apple and 

Samsung at the time the communications were made. 

Case 5:17-cv-00220-LHK Document 639 Filed 03/22/18 Page 7 of 7