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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

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

UNDER SEAL 

UNREDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 

Case 5:17-cv-00220-LHK Document 676 Filed 04/06/18 Page 1 of 12
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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

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

Pursuant to the Court’s February 26, 2018 docket entry, Non-Party Apple Inc. (“Apple”) 

and Defendant Qualcomm Incorporated (“Qualcomm”) submit this Joint Status Report. 

I. Apple’s Document Production 

A. Apple’s Position

To date, Apple has produced more than 4.1 million documents totaling over 37 million 

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

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

logs. Apple will produce any such documents from an Apple witness’s custodial 

files in advance of his or her deposition. 

(2) 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. Apple may also re-review other privilege log entries and 

determine that documents are non-privileged. If so, Apple will produce any such 

downgrades that are responsive and non-privileged on a rolling basis. 

B. Qualcomm’s Position

Qualcomm received productions from Apple on March 10, 12 and 13. These productions 

included documents from the custodial files of Messrs. Blevins, Williams and Srouji that were 

produced just before and during their respective depositions. Qualcomm has urged Apple to 

prioritize the production of documents from upcoming deponents, so that they are produced 

sufficiently in advance of the deposition. 

II. Apple’s Privilege Log

A. Qualcomm’s Position

Clawbacks. On March 7, Qualcomm raised with the Court a dispute regarding Apple’s 

clawback the prior evening of two substantively similar documents Bates numbered APL-QCFTC_22482289-96 and AAPL-FTC-00004898-4906 (the “Document”). During the hearing, 

Apple stated that “we determined during the course of deposition prep that the document had, in 

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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

fact, not been disclosed to anybody outside of Apple” and that “it was still subject to a work 

product claim”. (3/7/2018 Hrg. Tg. 23:17-22.) The Court “permit[ted] the clawback, and that’s 

on the basis of the privilege being asserted by Mr. Takashima in his representation about the 

foundation, describing the document and where it was found”, and then ordered Apple to produce 

a declaration substantiating its privilege assertion. (Id. at 26:1-10; ECF No. 607.) On March 14 

and 15, Apple produced declarations in support of its clawback from Mark D. Selwyn (“Selwyn 

Declaration”) and Bruce “B.J.” Hilton Watrous (“Watrous Declaration”), respectively.

The declarations reveal that Apple’s representation to the Court on March 7 was not 

accurate. The Document was in fact disclosed to the mediator presiding over the mediation 

between Samsung and Apple. (Watrous Decl. ¶ 7.) This disclosure waived any attorney-client 

privilege. See Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007) 

(disclosing an attorney-client communication to a third party waives privilege); In re Pac. 

Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012) (rejecting selective waiver of privilege). It 

does not matter that Apple and Samsung agreed that “the privileged character of any information 

is not altered by disclosure to the mediator”. (Selwyn Decl. ¶ 4.) Even if there was such an 

agreement between Samsung and Apple (which Apple has not produced), it could not prevent a 

waiver of privilege as against a third party like Qualcomm. All that such an agreement could do 

is limit the ability of the parties to that agreement (Samsung and Apple) to make waiver claims as 

against each other. The disclosure to the mediator waived privilege, as a matter of law, which 

Samsung and Apple could not contract around.1

 

1

 To the extent non-party Apple bases its clawback solely on a claim of work-product protection 

(and not attorney-client privilege), that claim is misplaced. (ECF No. 614 (citing In re California 

Pub. Utilities Comm’n, 892 F.2d 778, 781 (9th Cir. 1989); United States v. Graham, 555 F. Supp. 

2d 1046, 1050 (N.D. Cal. 2008); San Francisco Bay Area Rapid Transit Dist. v. Spencer, No. 04-

cv-04632 SI, 2006 WL 2734284, at *2 (N.D. Cal. Sept. 25, 2006) (‘“documents prepared for one 

who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the 

person may be a party to a closely related lawsuit in which he will be disadvantaged if he must 

disclose in the present suit.”’ (citations omitted)).) 

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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

In any event, Apple has not substantiated its new claim that, although the Document went 

to the mediator, it did not go to Samsung. Mr. Selwyn, Apple’s outside counsel who attended the 

mediation, very carefully states that he has “no record” of disclosure to Samsung and that to his 

“knowledge” the Document was not disclosed to Samsung. (Selwyn Decl. ¶ 5.) Mr. Watrous of 

Apple, who does not claim to have attended the mediation, is even more oblique. He avers that 

Apple “submitted statements to a mediator” and that “[a]t least one of the statements was 

provided to the mediator, but not to Samsung”—implying that other statements did go to 

Samsung. (Watrous Decl. ¶ 7.) Mr. Watrous further states that by “agreement, the document was 

to be maintained in confidence and not provided to Samsung.” (Watrous Decl. at ¶ 7.) But Apple 

has not produced any such agreement with the mediator covering either the Document itself or 

any information contained therein. 

Even aside from whether the physical Document itself was given to Samsung, Apple has 

not met its burden to show that the content of the Document was not disclosed. Nor could it 

credibly do so. The entire point of the Document was to provide the mediator with a series of 

arguments and comparisons (including a comparison to Qualcomm) that were intended to justify 

Apple’s licensing proposal in the mediation. The Document also walks through the risks to 

Samsung from rejecting Apple’s offer. By giving it to the mediator, Apple naturally intended to 

convey information and arguments for the mediator to use in discussions with Samsung. Even if 

the physical Document was not provided to Samsung, the content of the Document plainly was 

intended to be shared and therefore not subject to work-product protection. And because the 

mediation actually happened, the content of the Document almost certainly was shared. In fact, 

even though it has the burden here, Apple does not specifically contend otherwise. See S.E.C. v. 

Roberts, 254 F.R.D. 371, 378-79 (N.D. Cal. 2008) (orally conveying thoughts and impressions to 

an adversary effectuates waiver); Bergonzi, 216 F.R.D. at 493 (“The party asserting the privilege 

must make a prima facie showing the privilege protects the information the party intends to 

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4 

APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

withhold.” (citations omitted)). The Document is therefore not protected and Apple’s clawback 

should be rejected.2

Other Clawbacks. In the seven days since the last Status Report, Apple has sent three 

letters clawing back 174 additional documents right before or during the depositions of Apple’s 

witnesses. In total, Apple has now sent 11 clawback letters, of which 10 were sent immediately 

before or even during the scheduled depositions of Apple’s witnesses. Apple’s clawbacks total 

437 documents, the majority of which were in de-privileged productions made on Apple’s 

“rolling basis” after its Court-ordered production deadlines. (ECF No. 602.) 

With the benefit of the Court’s rulings on March 7, Qualcomm is continuing to assess 

whether there are other clawback-related disputes to be raised with Apple. If so, the parties will 

meet and confer and, if necessary, bring the issue before the Court. 

Nonresponsive Documents. Qualcomm has not yet received the list of documents that 

Apple deemed non-responsive in the course of revising its privilege log, which it first requested 

from Apple on February 23, and which the Court on March 7 ordered Apple to produce. (ECF 

No. 602.) The delay in producing this list has prejudiced Qualcomm’s ability to raise any 

challenges that may be warranted in time to receive any additional documents for use at 

deposition. 

B. Apple’s Position 

Clawbacks. Pursuant to the Court’s order at the March 7, 2018 discovery hearing, Apple 

served a declaration supporting its clawback of two substantially similar documents, APL-QCFTC_22482289-96 and AAPL-FTC-00004898-4906, on March 14, 2018. Apple served an 

additional supporting declaration on March 15, 2018. 

 

2

 The Ninth Circuit has not recognized a mediation privilege for federal matters. See Wilcox v. 

Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). Because federal privilege law applies here, given that 

both this case and the underlying mediated matter involved federal claims (Watrous Decl. ¶ 3), 

Apple’s invocation of this state law doctrine is inapplicable. See id. 

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5 

APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

Qualcomm raised its dispute with these clawbacks on the evening of March 6, 2017. At 

the March 7, 2018 hearing, Apple’s counsel represented, based on the information Apple had at 

the time, that the final version of the documents above had not been disclosed to anyone outside 

of Apple. (3/7/2018 Hr’g Tr. at 23:17-23:22.) After the hearing, Apple determined that the 

document (or a substantially similar document) was likely disclosed to a mediator on a 

confidential basis. (Selwyn Decl. ¶ 5; Watrous Decl. ¶ 7). However, the document was not 

shared with Samsung. (Selwyn Decl. ¶ 5; Watrous Decl. ¶ 7). As a result, the documents in 

question remain subject to work product protection. 

At the March 7, 2018 discovery hearing, Apple’s counsel confirmed that Apple was 

asserting the work product privilege over the clawed-back documents. (3/7/2018 Hr’g Tr. at 

24:4-24:7.) The Court upheld that privilege assertion, (id. at 25:24-26:13), and nothing material 

to that decision has changed. To the extent Qualcomm is asserting waiver of work production 

protection, its argument is based on a conflation of the legal standards for the attorney client 

privilege and work product protection.3 “[W]aiver of attorney work-product protection requires 

more than the disclosure of confidential information, it requires an act inconsistent with the 

adversary system,” such as disclosure to “a third party who is not bound to maintain its 

confidence. . . .” Great Am. Assurance Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 

1092 (N.D. Cal. 2009) (citations and internal alternations omitted); accord Nidec Corp., 249 

F.R.D. at 580 (“[T]he disclosure to a third party does not necessarily constitute a waiver of the 

work product privilege. For work product, ‘protection is waived where disclosure of the 

otherwise privileged documents is made to a third party, and that disclosure enables an adversary 

to gain access to the information.’”) (citation omitted). The mediator presiding over the 

 

3

 Qualcomm does not dispute that the document, as drafted, was subject to work product 

protection. Mr. Watrous has confirmed that the clawed-back documents “are examples of 

documents that I prepared that contain legal analysis for the Samsung litigation and mediation 

efforts.” (Watrous Decl. ¶ 6.) 

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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

confidential mediation between Apple and Samsung was not Apple’s adversary. Further, “[b]y 

agreement, the document was to be maintained in confidence and not provided to Samsung.” 

(Watrous Decl. ¶ 7). The disclosure of the document in question to a mediator, on a confidential 

basis, did not waive work product protection. 

Neither of the cases cited by Qualcomm is to the contrary. In re Pacific Pictures Corp.

only addresses selective waiver of the attorney-client privilege, 679 F.3d at 1123, and does not 

address the less restrictive waiver principles applicable to work product. See Nidec Corp., 249 

F.R.D. at 580 (“The work product privilege provides protection against adversaries and is not as 

easily waived as the attorney-client privilege.”). And, as noted above, the Nidec court’s 

explanation of work product—rather than the explanation of attorney-client privilege Qualcomm 

cites—supports Apple’s position, not Qualcomm’s. Id. at 580. 

Qualcomm’s claim that the clawed-back document was shared with Samsung is 

unfounded. Mr. Selwyn, who represented Apple in its litigation with Samsung, attended the 

mediation between the parties. (Selwyn Decl. ¶ 3). He attested that “[t]o the best of my 

knowledge, there was no disclosure of these documents (or substantially similar versions of them) 

outside of Apple other than to its counsel and to Mr. Piazza,” the mediator. (Id. ¶¶ 3, 5). Mr. 

Selwyn also confirmed that based on a review of his internal files and productions to Samsung, “I 

and staff working at my direction have found no record of these documents being produced in the 

litigation or otherwise disclosed to Samsung.” (Id. ¶ 5.) Qualcomm also seems to think that Mr. 

Watrous’ declaration indicates that some version of the document in question was provided to 

Samsung. It does not. Mr. Watrous has explained that the two clawed-back documents are 

“either the same as, or substantially similar to, [a] confidential statement provided to the 

mediator,” which “was to be maintained in confidence and not provided to Samsung.” (Watrous 

Decl. ¶ 7.) Mr. Watrous’ and Mr. Selwyn’s statements firmly establish that the document was not 

shared with Samsung. 

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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

Qualcomm’s third argument is even weaker, as it is based solely on speculation that 

although the document in question was not disclosed to Samsung, its contents may have been 

shared. Qualcomm has nothing to support this claim, which is inconsistent with the typical use of 

confidential documents provided to mediators, and with the specific agreement in the mediation 

that “the document was to be maintained in confidence and not provided to Samsung.” (Id. ¶ 7). 

Finally, Qualcomm argues that work product protection is inapplicable because Apple is a 

non-party—an argument it raised for the first time at 9:48 p.m. on the day this Joint Status Report 

was due. Although Apple cannot respond fully to that argument within the time constraint 

imposed by Qualcomm, Apple notes that courts may protect work product material from 

discovery under Rule 26(c) even where Rule 26(b)(3) is not applicable. See CPUC, 892 F.2d at 

781 (“To the extent that disclosure causes hardship to the CPUC, it is free to seek a protective 

order under Rule 26(c).”). Moreover, “it must be remembered that protection may exist under 

Hickman v. Taylor itself, even if it is not provided also under the rule, so long as the materials in 

question were prepared in anticipation of litigation by an attorney.” 8 Charles Alan Wright, et al., 

Federal Practice & Procedure: Civil 3d § 2024 (3d ed. West 2017). Apple’s clawback—which the 

Court has already upheld on work product grounds—is fully justified, and should be maintained 

by the Court.4

 

 

4

 In addition, even if the documents in question were not protected by work product protection—

and they are—Apple’s clawback would be justified based on mediation privilege. See Silicon 

Storage Tech., Inc. v. Nat’l Union Fire Ins. Co., No. 13-cv-05658-LHK, 2015 WL 5168696, at *5 

(N.D. Cal. Sept. 3, 2015); Folb v. Motion Picture Industry Pension & Health Plans, 16 F. Supp. 

2d 1164, 1179-80 (C.D. Cal. 1998). Qualcomm suggests that the Ninth Circuit has rejected a 

federal mediation privilege. That is not the case. The Wilcox court found that it did not need to 

address the existence of a federal mediation privilege. See 753 F.3d at 877 (“We thus need not 

determine whether a mediation privilege should be recognized under federal common law and, if 

so, the scope of such a privilege.”). However, district courts within this Circuit have recognized a 

federal mediation privilege. See Folb, 16 F. Supp. 2d at 1179 (“Accordingly, this Court finds it is 

appropriate, in light of reason and experience, to adopt a federal mediation privilege applicable to 

all communications made in conjunction with a formal mediation.”). 

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8 

APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

Other Clawbacks. As discussed during the March 7, 2018 discovery hearing, Apple is 

continuing to claw back documents that it identified as containing inadvertently-produced 

privileged or work product material. To date, Qualcomm has not raised any issues or disputes 

concerning any such clawbacks. 

Non-Responsive Documents. In the course of re-reviewing privilege log entries, Apple 

has identified some entries that are not privileged but whose documents are also non-responsive. 

Apple is removing those entries from its logs, but because the documents are non-responsive, is 

not producing the downgraded documents. Apple anticipates being able to provide Qualcomm 

with a list of log entries that it has determined to be non-responsive within the next week. 

III. Deposition Scheduling 

Apple advised Qualcomm and the other parties today that, because of a personal matter, 

the deposition of Bruce Sewell originally scheduled for March 20-21 is being rescheduled. 

Apple, Qualcomm, and the other parties will meet and confer on this issue promptly. 

// 

// 

// 

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9 

APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

Dated: March 16, 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. 

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

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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC 

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

Willard K. Tom

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 

richard.taffet@morganlewis.com

willard.tom@morganlewis.com 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated

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APPLE AND QUALCOMM'S JOINT STATUS REPORT 

No. 17-cv-0220-LHK-NMC, No. 17-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 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/ Edward H. Takashima 

Edward H. Takashima 

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