Case No. 5:17-cv-00220-LHK-NMC 

Case No. 5:17-md-02773-LHK-NMC 

DEFENDANT’S NO. AND MO. TO APPROVE REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE 

IN PROCURING EVIDENCE FROM CHINESE THIRD PARTIES 

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MORGAN 28 , LEWIS &

BOCKIUS LLP 

ATTORNEYS AT LAW

SAN FRANCISCO

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

Yonatan Even (pro hac vice) 

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 (SBN 84065) 

Asim M. Bhansali (SBN 194925) 

Eugene M. Paige (SBN 202849) 

633 Battery Street 

San Francisco, Ca 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

Attorneys for Defendant, 

QUALCOMM INCORPORATED 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

101 Park Avenue 

New York, New York 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS LLP 

Willard K. Tom (pro hac vice) 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone: (202) 739-3000 

Facsimile: (202) 739 3001 

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 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

QUALCOMM INCORPORATED, a Delaware 

corporation, 

Defendant. 

IN RE: QUALCOMM ANTITRUST 

LITIGATION 

ALL ACTIONS 

Case No. 5:17-cv-00220-LHK-NMC 

Case No. 5:17-md-02773-LHK-NMC 

DEFENDANT’S NOTICE OF MOTION 

AND MOTION TO APPROVE 

REQUEST FOR INTERNATIONAL 

JUDICIAL ASSISTANCE IN 

PROCURING EVIDENCE FROM 

CHINESE THIRD PARTIES 

Case 5:17-cv-00220-LHK Document 156 Filed 08/11/17 Page 1 of 8
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Case No. 5:17-cv-00220-LHK-NMC 

Case No. 5:17-md-02773-LHK-NMC 

DEFENDANT’S NO. AND MO. TO APPROVE REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE 

IN PROCURING EVIDENCE FROM CHINESE THIRD PARTIES 

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MORGAN, LEWIS &

BOCKIUS LLP 

ATTORNEYS AT LAW

SAN FRANCISCO

NOTICE OF MOTION 

TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: 

Defendant Qualcomm Incorporated (“Qualcomm”) respectfully requests that the Court 

approve its request for international judicial assistance in procuring evidence from foreign third 

parties ZTE Corporation (“ZTE”), Xiaomi Communications Co., Ltd. (“Xiaomi”), Huawei 

Device Co., Ltd. (“Huawei”), Lenovo Group Ltd. (“Lenovo”), and FIH Mobile Ltd. (“Foxconn”) 

(collectively, the “China Third Parties”). This motion is based upon this Notice of Motion, the 

Statement of Relief, the accompanying Memorandum of Points and Authorities, and the 

Declaration of Geoffrey T. Holtz (“Holtz Decl.”) submitted in support of this Motion. 

Qualcomm conferred with counsel for the Federal Trade Commission (“FTC”). (Holtz 

Decl. ¶ 10.) The FTC stated its intent to object to certain of the requests. (Holtz Decl. ¶ 10, Ex. 

H.) Qualcomm submits this Motion with a stipulation by the parties to abbreviate the briefing 

and have the Court rule on the papers — unless the Court determines otherwise — to conserve the 

Court’s resources and efficiently resolve any objections given the short discovery timetable. 

STATEMENT OF RELIEF 

Qualcomm respectfully requests that the Court sign and affix its seal to the accompanying 

Letters of Request, and return the same with original signatures and seals to Qualcomm’s counsel 

for forwarding to the appropriate Judicial Authority of China. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

Pursuant to Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in 

Civil or Commercial Matters (“Hague Convention”), 23 U.S.T. 2555, 28 U.S.C. § 1781 and 

Federal Rules of Civil Procedure 26(b)(1) and 28(b), Qualcomm respectfully moves the Court for 

the issuance of Letters of Request to obtain evidence consisting of documents from the China 

Third Parties. These foreign third-parties possess documents potentially to be used at trial in 

support of Qualcomm’s defenses to the FTC’s allegation that Qualcomm violated Section 5(a) of 

the Federal Trade Commission Act (“FTC Act”), and to the putative class plaintiffs’ allegations 

that Qualcomm violated federal and state antitrust and consumer protection laws. Accordingly, 

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ATTORNEYS AT LAW

SAN FRANCISCO

Qualcomm respectfully requests that the Court grant this Motion and issue Letters of Request on 

behalf of Qualcomm for transmittal to the appropriate Judicial Authority of China pursuant to the 

Hague Convention. 

II. FACTUAL BACKGROUND 

The FTC asserts that Qualcomm has violated Section 5(a) of the FTC Act, 15 U.S.C. 

§ 45(a). The putative class plaintiffs assert that Qualcomm has violated federal and state antitrust 

and consumer protection laws. The issues in this litigation relate to, among other things: cellular 

communications standards, including but not limited to CDMA, WCDMA, and LTE; licensing of 

cellular standard essential patents to practice the relevant cellular standards, including license 

agreements entered into between Qualcomm and certain of the China Third Parties, and the 

potential effect (if any) of such license agreements on competition in the sale of certain baseband 

processors, including by one of the China Third Parties. 

In support of its defenses to the FTC’s and putative class plaintiffs’ claims, Qualcomm has 

been diligently pursuing, and will continue to pursue, discovery from the FTC, the putative class 

plaintiffs, and third parties located outside China. Qualcomm also seeks evidence from the China 

Third Parties concerning the licensing and chip supply that are the subject of the FTC’s complaint 

and the class complaints. Specifically, the China Third Parties are either licensees and actual or 

potential baseband processor customers of Qualcomm, or competitors of Qualcomm in the sale of 

baseband processors. Each of the China Third Parties is identified in the FTC’s Initial 

Disclosures, dated April 12, 2017, as possessing relevant information that the FTC may use to 

support its claims. (Holtz Decl., Ex. A.) 

The Letters of Request that are the subject of this Motion, attached hereto as Holtz Decl., 

Exs. C-G, solicit assistance from the appropriate Judicial Authority of China in obtaining 

evidence from the China Third Parties to be used at trial. 

Each of the China Third Parties is headquartered in the People’s Republic of China. 

(Holtz Decl. ¶ 4, Ex. A.) Based on an investigation and in the course of Qualcomm’s business 

interactions with some of the China Third Parties, and its understanding of the business of other 

China Third Parties, it is Qualcomm’s belief that relevant evidence is located at the China Third 

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ATTORNEYS AT LAW

SAN FRANCISCO

Parties’ respective headquarters in China. Many of these documents may be outside the custody, 

possession, or control of any related U.S.-based entities of the China Third Parties, thus 

necessitating foreign judicial assistance. 

The People’s Republic of China is a party to the Hague Convention of 18 March 1970 on 

Taking of Evidence Abroad in Civil and Commercial Matters. See 

https://www.hcch.net/en/instruments/conventions/status-table/?cid=82; 

https://travel.state.gov/content/travel/en/legal-considerations/judicial/country/china.html. 

III. ARGUMENT 

United States District Courts have inherent authority to issue letters of request and letters 

rogatory. See 28 U.S.C. § 1781; Fed R. Civ. P. 28(b); United States v. Staples, 256 F.2d 290, 292 

(9th Cir. 1958); Barnes & Noble, Inc. v. LSI Corp., No. 11-2709, 2012 WL 1808849, at *1-*2 

(N.D. Cal. May 17, 2012) (granting motion for issuance of letters rogatory seeking discovery 

from a foreign entity). 

Both the United States and the People’s Republic of China are parties to and are bound by 

the Hague Convention, which authorizes the issuance of a letter request from a judicial tribunal in 

the United States to the designated authority in China. See Hague Evidence Convention, Ch. I, 

Art. 1 (“In civil or commercial matters a judicial authority of a Contracting State may, in 

accordance with the provisions of the law of that State, request the competent authority of another 

Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other 

judicial act.”); see also Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. 

of Iowa, 482 U.S. 522, 533 (1987). 

As the China Third Parties are not parties to this action, Letters of Request through the 

Hague Convention are the appropriate manner of receiving evidence from the China Third 

Parties. See Viasat, Inc. v. Space Sys./loral, Inc., No. 12-CV-0260-H (WVG), 2013 WL 

12061801, at *2, *7 (S.D. Cal. Jan. 14, 2013) (granting motion to issue letters of request under 

Hague Convention for documents that cannot be obtained from a party); S.E.C. v. Leslie, No. C 

07-03444 JF (PVT), 2009 WL 688836, at *4 (N.D. Cal. Mar. 16, 2009) (granting a motion to 

issue letters of request to a foreign non-party to the litigation); Barnes & Noble, Inc. v. LSI Corp., 

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No. C 11-02709 EMC LB, 2013 WL 812331, at *2 (N.D. Cal. Mar. 5, 2013) (holding that letters 

rogatory are necessary and proper where the subject of the letters were non-parties residing in a 

foreign country); Evanston Ins. Co. v. OEA, Inc., No. CIV-21505, 2006 WL 1652315, at *2 (E.D. 

Cal. June 13, 2006) (issuing letters rogatory under the Hague Convention). 

Letters of Request should be issued unless good cause is otherwise shown. Evanston, 

2006 WL 1652315, at *2. “When determining whether to exercise its discretion, a court will 

generally not weigh the evidence sought from the discovery nor will it attempt to predict whether 

that evidence will actually be obtained.” Barnes & Noble, 2013 WL 812331, at *2. Letters of 

request and letters rogatory need only be consistent with the liberal standards of Federal Rule of 

Civil Procedure 26. See Barnes & Noble v. LSI Corp., No. C 11–02709 EMC LB, 2012 WL 

1808849, at *2 (N.D. Cal. May 17, 2012) (“A court’s decision whether to issue a letter rogatory . . 

. require[s] an application of Rule 28(b) in light of the scope of discovery provided for by the 

Federal Rules of Civil Procedure.”). As such, courts regularly rule in favor of the litigants’ 

interests in obtaining foreign discovery to develop fully the factual record for U.S. litigation if the 

documents sought are sufficiently relevant to the nature of the litigation. See, e.g., Multimedia 

Patent Trust v. Apple Inc., No. 10-cv-2618-H, 2012 WL 12868304, at *2 (S.D. Cal. Jul. 30,

2012). 

Plaintiffs’ complaints make clear that third-party discovery is required for Qualcomm to 

develop its legal and factual arguments. (Dkt. No. 1.) Plaintiffs’ allegations against Qualcomm 

make obtaining discovery from multiple participants in the cellular communications industry 

critical to assess the antitrust issues raised in these actions. This need is highlighted by the FTC’s 

Initial Disclosures, which lists 44 non-parties to this action, of which 25 are headquartered 

outside the United States, including the five China Third Parties. (Holtz Decl. ¶ 4, Ex. A.) 

All parties agree that the China Third Parties are likely to have evidence relevant to this 

action, and so there is no reason (let alone good cause) militating against foreign discovery. 

Evanston, 2006 WL 1652315, at *2; (Holtz Decl. ¶ 4, Exs. A and B). Furthermore, the discovery 

requests attached to the Letters of Request ask that a Chinese court compel the China Third 

Parties respectively to produce documents described in the Letters, which have been 

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ATTORNEYS AT LAW

SAN FRANCISCO

particularized to refer to identified custodians and specific agreements at issue, as set forth in the 

Letters. The requests set forth in the Letters seek relevant evidence relating to license agreements 

and licensing negotiations with Qualcomm and other patent holders, modem chip negotiations 

and sales by or to these entities, and competition in the supply of modem chips that is the subject 

of the FTC’s complaint and the purported class plaintiffs’ complaints. Accordingly, this 

information is important to these actions as it sheds light on the negotiation of licensing 

agreements and the sale of baseband processors that are at issue in the complaints and plainly 

falls within the ambit of the Federal Rules. 

Because the information is believed to be stored by the China Third Parties in the People’s 

Republic of China, Qualcomm may be unable to secure the requested discovery from these China 

Third Parties through a subpoena pursuant to Federal Rule of Civil Procedure 45. While 

Qualcomm continues to pursue other avenues of securing the requested evidence, the China Third 

Parties have objected to such efforts, and Qualcomm is concerned that the only practicable 

method of obtaining the information is through Letters of Request to the appropriate Judicial 

Authority of China. Qualcomm respectfully urges this Court to exercise its discretion to seek 

international judicial assistance to obtain documents necessary for Qualcomm to develop fully the 

factual records in these actions. Barnes & Noble, 2012 WL 1808849, at *1-2. 

IV. CONCLUSION 

For the foregoing reasons, Qualcomm respectfully requests that the Court grant 

Qualcomm’s motion, sign and affix its seal to the Letters of Request attached hereto, and return 

the same with original signatures and seals to Qualcomm’s counsel for forwarding to the 

Appropriate Judicial Authority of China. 

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ATTORNEYS AT LAW

SAN FRANCISCO

Dated: August 10, 2017 Respectfully submitted, 

CRAVATH, SWAINE & MOORE, LLP 

 /s/ Gary A. Bornstein 

 Gary A. Bornstein 

 Yonatan Even 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

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 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

rvannest@kvn.com 

abhansali@kvn.com 

epaige@kvn.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 

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ATTORNEYS AT LAW

SAN FRANCISCO

 Donn P. Pickett 

Geoffrey T. Holtz 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Tel: (415) 442-1000 

Fax: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 

FILER’S ATTESTATION 

I, Geoffrey T. Holtz, am the ECF user whose identification and password are being used 

to file this Motion to Approve Request for International Judicial Assistance. In compliance with 

Civil Local Rule 5-1(i)(3), I hereby attest that the signatories on this document have concurred in 

this filing. 

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