Jennifer Milici, D.C. Bar No. 987096

Daniel Matheson, D.C. Bar No. 502490

J. Alexander Ansaldo, Va. Bar No. 75870

Joseph R. Baker, D.C. Bar No. 490802

Elizabeth A. Gillen, Cal. Bar No. 260667

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-2912; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Plaintiff

FEDERAL TRADE COMMISSION

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, New York 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

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

Lin W. Kahn, Cal. Bar No. 261387

Federal Trade Commission

901 Market Street, Suite 570

San Francisco, CA 94103

(415) 848-5115; (415) 848-5184 (fax)

lkahn@ftc.gov

MORGAN, LEWIS & BOCKIUS LLP

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com

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)

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,

v.

QUALCOMM INCORPORATED, a Delaware 

corporation,

Defendant.

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

PLAINTIFF FEDERAL TRADE 

COMMISSION’S AND DEFENDANT 

QUALCOMM INCORPORATED’S 

JOINT DISCOVERY STATEMENT

REGARDING QUALCOMM’S RE- REVIEW OF PRIVILEGE LOG 

ENTRIES

Courtroom: 7, 4th Floor

Judge: Hon. Nathanael M. Cousins

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 1 of 9
1

On December 20, 2017, the Court ordered Qualcomm to re-review 1,000 privilege assertions 

selected by the FTC and the Class Plaintiffs (collectively “Plaintiffs”). See ECF No. 421. On 

January 8, 2018, Qualcomm provided to the Plaintiffs the results of this re-review. The parties 

met and conferred regarding the re-review on January 25, 2018, but did not reach agreement.

I. Plaintiffs’ Position

The January 8 re-review generated numerous controversial privilege assertions that 

require an independent examination. Further, the January 8 re-review confirms that Qualcomm 

continues to withhold an unacceptable number of important and plainly non-privileged 

documents involving key trial witnesses. Accordingly, this Court should appoint a Special 

Master to examine specific privilege assertions, selected by the Plaintiffs, which Qualcomm 

refused to withdraw upon re-review. In parallel, the Court should order Qualcomm to re-review 

(i) a set of ~10,000 privilege claims from Qualcomm’s pre-Complaint production that is, 

statistically speaking, nearly certain to include ~2,700 erroneous claims, and (ii) similar claims 

made in response to Plaintiffs’ Requests for Production (RFPs) in this litigation.

Qualcomm Admits 382 of 1,000 Re-reviewed Log Entries Are Erroneous

Plaintiffs selected 1,000 privilege log entries describing entirely withheld documents 

using two methods. First, Plaintiffs generated an entirely random sample of 373 entries from a 

population of 11,211 log entries asserting privilege over communications involving five key trial 

witnesses. See Ex. A (Ross Decl., describing random selection process); see also ECF No. 395-1 

(Ansaldo Decl., describing process for identifying 11,211 log entries). On January 8, Qualcomm 

acknowledged that 100 of these 373 log entries erroneously asserted privilege over nonprivileged material, for an error rate of 26.8% (100/373). Standard techniques for drawing 

statistical inferences from a random sample support a 95% confidence level that Qualcomm’s 

error rate for the 373 entries is the same as, or very close to, its error rate for the broader 

population of 11,211. See Ex. A.1 Now that data is available on a truly random sample it is, 

statistically speaking, nearly certain that Qualcomm is currently withholding more than 2,700 

document families involving key trial witnesses that should have been produced during the preComplaint investigation.2

Second, Plaintiffs identified 627 log entries that seemed particularly interesting. On 

January 8, Qualcomm acknowledged that 282 of these log entries withheld non-privileged 

material from production. This is an error rate of 45% (282/627).3

Qualcomm’s Re-Review Claimed Privilege Over Business Communications That Do Not 

Constitute Legal Advice: A Special Master is Required

Qualcomm’s re-review led to the production of numerous redacted documents previously 

 1 This is a matter of serious concern, but not a surprise, as it is consistent with Qualcomm’s 27% error rate for the 

~1,110 withheld log entries Qualcomm re-reviewed in November. See Ex. B (ECF No. 395-2, Appendix A to ECF 

No. 395). Qualcomm created Ex. B to explain the error rate it contends is applicable to its November re-review. 2 26.8% of 10,317 = 2,764. (10,317 because the January 8 re-review captured 894 of the 11,211). 3 On January 8, Qualcomm provided an Excel sheet identifying 277 of these 627 entries as resulting in the 

production of new documents, and noted in its correspondence that 5 of these 627 entries refer to documents that are 

not privileged and were previously produced (17005, 28951, 30651, 30667, 36905). Y. Even Ltr. to D. Matheson 

and R. Pierce (Jan 8, 2018) at 1 n. 1.

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 2 of 9
2 

withheld in their entirety. Many of these redactions appear to conceal business communications 

that do not constitute “legal advice,” demonstrating that Qualcomm continues to apply a legally 

incorrect standard to its privilege claims. In particular, Qualcomm routinely asserts privilege 

over business communications relating to contract negotiations. Two examples, of many, 

indicate that Qualcomm applied an incorrect standard during its re-review.

Ex. C redacts a proposal sent to a non-lawyer (Mr. Hal Hahn). The communication says 

See Ex. C at QNDCAL04494357. This is not legal 

advice, it is not a request for legal advice, and it is not a confidential communication from a 

client to an attorney. It is a business proposal that a business person was instructed to discuss 

with two key trial witnesses, and it cannot be withheld because no privilege attaches to emails 

“addressed to both lawyers and non-lawyers for review, comment, and approval.” In re Vioxx 

Products Liability Litigation, 501 F.Supp.2d 789, 809 (E.D. La. 2007).5 The fact that the 

business proposal was sent by an attorney (Ms. Victoria Chen) does not provide a basis for 

shielding the communication, because the attorney was acting in a business capacity, not 

providing advice requiring the specialized training attorneys receive. Id. at 797-799. Nor would it 

matter if Ms. Chen acted as a scrivener in memorializing the proposal in written form.

Ex. D redacts another proposal Qualcomm considered making to Apple, this one sent to 

Qualcomm’s current President (Mr. Amon) at his request, and then forwarded by a non-lawyer 

(Mr. McCloskey) to another non-lawyer (Mr. Wyatt). On re-review, Qualcomm redacted the 

proposal in its entirety. This redaction cannot be justified if the proposal was sent to Mr. Amon, 

and also forwarded to Mr. McCloskey, for a business purpose. Fourth Age Ltd. v. Warner Bros. 

Digital Dist., 2015 WL 12720324 (C.D. Cal. Aug. 6, 2015) at *6 (““No privilege can attach to 

any communication as to which a business purpose would have served as a sufficient cause, i.e., 

any communication that would have been made because of a business purpose, even if there had 

been no perceived additional interest in securing legal advice.””) (emphasis in original) (quoting 

McCaugherty v. Siffermann, 132 F.R.D. 234, 238 (N.D. Cal. 1990)). As with all Qualcomm’s 

privilege assertions, Plaintiffs cannot see the redacted content, and thus lack critical information 

that might allow Plaintiffs to demonstrate conclusively that Qualcomm’s re-review withheld 

non-privileged information (except in the rare instances, such as those already brought to the 

Court’s attention, that Qualcomm accidentally produces a non-redacted version of a document 

over which it has erroneously asserted privilege after re-review – see ECF No. 396). But a 

Special Master would not be so encumbered: a Special Master could be empowered to review the 

redacted material in camera, and thus reach a fully informed conclusion about the standards 

applied during Qualcomm’s re-review.6

Therefore, to efficiently address these, and many similar erroneous assertions of attorneyclient privilege, the Court should appoint a Special Master to review 500 documents selected by 

the Plaintiffs that Qualcomm asserts, after re-review, are privileged. A Proposed Order 

 

4 The privilege log entry for this document claimed it constituted an “Email chain reflecting a request for legal 

advice and legal advice regarding decision on product pricing (Attorney: Chen, Victoria).”

5 Courts in this Circuit have approvingly cited the Vioxx Court’s “in-depth discussion of the attorney-client 

privilege.” Hulstedt v. City of Scottsdale, Ariz., 2011 WL 2836553, at *4 (D. Ariz. July 18, 2011). 6 Good cause exists for in camera review of purportedly privileged material due to Qualcomm’s high error rate and 

the high importance of the documents that have been withheld. But, in any event, a Special Master with a limited 

mandate does not need “good cause” to view purportedly privileged information in order to assess a privilege claim 

because, unlike a judge, there is no risk that viewing privileged material would impact the Special Master’s view of 

any other aspect of the case.

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 3 of 9
3

describing the master’s duties is attached as Ex. E. See Fed. R. Civ. Pro. 53(b). It is entirely fair 

to impose on Qualcomm the cost of a Special Master. See Fed. R. Civ. Pro. 53(a)(3). Qualcomm 

alone bears responsibility for erroneously asserting privilege over important business 

communications involving key trial witnesses. Already Plaintiffs have expended countless hours 

detecting and exposing nearly 2,000 erroneous privilege assertions, the Court has been 

unnecessarily burdened with numerous filings and two hearings, and only a small fraction of 

Qualcomm’s 200,000+ privilege claims have been re-reviewed.

On January 25, 2018, Plaintiffs contacted a highly qualified candidate for a Special 

Master, Mr. John Cooper, with whom the Court is familiar. Mr. Cooper reports that he is 

available to act as a Special Master with respect to privilege disputes in this matter, and that he 

has no conflicts that would prevent him from doing so.

In Parallel, Qualcomm Should Re-review Similar Entries Withheld From its RFP 

Responses

Qualcomm employed the same privilege analysis procedures to respond to Plaintiffs’ 

RFPs as to respond to the FTC’s pre-Complaint subpoena, see ECF No. 299 (Ford Decl.) at 1, 

and there is no reason to believe its error rate is any lower for its RFP responses as for its 

subpoena responses. Qualcomm’s privilege log for Plaintiffs’ RFPs contains ~115,000 entries. 

The Court should order Qualcomm to re-review all entries on this log that meet the same criteria 

as the ~10,000 pre-Complaint investigation entries. Plaintiffs believe this would entail a rereview of approximately 9,000 privilege claims.

II. Qualcomm’s Position

Plaintiffs’ requests should be denied because (a) Qualcomm’s re-review process was 

sound, and Plaintiffs present no evidence to the contrary, and (b) the wholesale re-review 

requested by Plaintiffs is unwarranted and unworkable. Qualcomm has already re-reviewed 

nearly 5,000 documents selected by Plaintiffs. Qualcomm has always been, and remains, open to 

reasonable specific requests to reconsider privilege calls on specific documents; indeed, 

Qualcomm has re-reviewed dozens of privilege calls identified by the Plaintiffs in connection 

with specific depositions. Plaintiffs’ proposals would provide no benefit other than to divert 

significant Qualcomm resources to document re-review during a very condensed deposition 

period (involving over 60 depositions in the span of three months), in a case where Qualcomm 

has already produced to Plaintiffs approximately 3 million documents (over 25 million pages).

Qualcomm’s Meticulous Re-Review of 1,000 Privilege Log Entries

At the December 20, 2017 hearing, the Court directed Plaintiffs to select 1,000 additional 

entries from Qualcomm’s log – above and beyond the 3,571 entries and redacted documents 

previously re-reviewed by Qualcomm – which Qualcomm was to re-review by January 8. The 

Court noted, “as a reminder – all parties know this – the objective in doing this was to have the 

FTC prioritize the things that were most important to it, and it was successful in identifying what 

was most important. And I’ll give the FTC a further chance to that same exact process 

here . . . .” (Tr. 16.) Instead of selecting 1,000 entries that were “most important” to them, as 

instructed by the Court, Plaintiffs only identified 627 entries “that seemed particularly

interesting . . . and substantively important”. (Jan. 17, 2018 email from D. Matheson to 

Y. Even.) The other 373 were a purported “random sample” from the 11,211 cherry-picked 

entries that the FTC had previously identified as raising particularly close privilege calls. (ECF 

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 4 of 9
4

No. 395.) Plaintiffs thus wasted over one-third of the Court-ordered re-review on documents 

they specifically have not identified as “interesting” or “substantively important”.

Over the Holiday season, and while preparing for dozens of depositions, Qualcomm 

conducted the required “meticulous and proper” re-review (Nov. 6 Tr. at 31) of those 1,000 log 

entries, as it had done with respect to the thousands of other documents previously identified by

Plaintiffs. Qualcomm concluded that five of the 1,000 entries had been previously produced. Of 

the remaining 995, some entries were inconsistent with other versions of the documents that had 

been produced to Plaintiffs already. Qualcomm corrected those inconsistencies, resulting in the 

production of 89 document families for which Plaintiffs already had all of the previously 

withheld content. Qualcomm further produced 168 document families with redactions and 120 

without redactions (for 186 of these, portions of the content had already been previously 

produced to Plaintiffs; thus, the re-review resulted in the production of limited new information.7

Plaintiffs’ Request for a Special Master is Unwarranted

Plaintiffs identify two documents – out of 1,000 – as their sole evidence of a purportedly 

improper re-review by Qualcomm.8 But both documents are precisely and properly redacted –

and even if they were not, two errors would not warrant the appointment of a special master.

During the meet and confer process following the re-review, Plaintiffs did not identify

any document as improperly re-reviewed. Nor did Plaintiffs ever ask Qualcomm about the 

redacted content in the two specific documents they now identify. Had they asked, Qualcomm 

would have explained that the challenged redacted content in both documents is a lawyer’s draft 

contractual language. In Ex. C, Qualcomm Senior Vice President, Legal Counsel Victoria 

Chen,

9 sends draft contract provisions to Mr. Hahn, a Qualcomm executive; Qualcomm was 

careful not to redact the portion of her email introducing the draft contract, but to redact only the 

draft contract language itself. Similarly, in Ex. D, the redacted “proposal” cited by Plaintiffs 

consists of two attachments, both of which are a lawyer’s drafts of contracts. Qualcomm did not 

redact the file names of the drafts (which are on the top of the parent email),10 or the nonprivileged portions of the parent emails, but redacted only the attached draft agreements, as 

prepared and/or revised by Ms. Chen and by Division Counsel Jonathan Weiser. Plaintiffs’ 

assertions that these documents do not reflect “advice requiring the specialized training attorneys 

receive” is thus plainly wrong, and the two documents cited by Plaintiffs confirm that 

Qualcomm’s re-review was meticulous and proper. Indeed, as the Vioxx case states, “[i]f the 

memorandum and attachment related to identifiable legal instruments like a proposed contract, 

these generally were found to be privileged.” 501 F. Supp.2d at 811.11

But even if Plaintiffs could identify an error in the review process, that still would not 

warrant the extensive and expensive re-re-review by a special master that Plaintiffs ask the Court 

to order. As the Court noted at the December 20 hearing, “given the timing, the cost of a special 

master and the success of this rereview process . . . there’s not good cause to order [a special 

 7 Plaintiffs have not identified the documents selected as “important” or purportedly “random”, and therefore 

Qualcomm cannot assess Plaintiffs’ statistics on “error rates” within each group. 8 Plaintiffs say that the re-review generated “numerous controversial privilege assertions” and “many similar 

erroneous assertions”, but they only identify two documents. 9 Ms. Chen has a legal (not business) position only and has been a member of the California bar since 1992. 10 They are “SOW Mav11 (061614.1)QCR.docx” and “Apple-QC Second Amendment to TA (061214).docx”. 11 The FTC, in an Oct. 30 Joint Discovery Statement, noted that “attorney-executives’ . . . advice regarding the legal 

ramifications of contractual language might constitute appropriately redacted ‘legal advice.’” (ECF No. 248, at 3.)

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 5 of 9
5

master] right now.” (Tr. 16.) Nothing has changed since, except that Plaintiffs have now had the 

benefit of yet further re-review by Qualcomm, and that the Parties are further into an exceedingly 

busy deposition period, with the close of fact discovery fast approaching. Plaintiffs’ request, if 

granted, would impose an extreme burden on Qualcomm. As with Special Master Rice’s review 

in Vioxx, Plaintiffs’ proposed order contemplates “briefing, argument, declarations, or other 

materials,” a Special Master’s report, objections to the report, responses to the objections, motion 

practice, and then de novo review by the Court.12 In Vioxx, the parties incurred over $400,000 in 

direct fees and expenses to sustain the special master process, which lasted for three months. 

501 F. Supp.2d at 792, 794, 815 n.35. And the use of a special master in this case would be 

particularly challenging because it would be necessary for any special master to take substantial 

time to learn about the industry and Qualcomm’s business and personnel in order to assess 

privilege claims. For these reasons, the “appointment of a special master is the exception, not 

the rule.” Idan Computer, Ltd. v. Intelepix, LLC, 2010 WL 3516167, at *3 (E.D.N.Y. Aug. 27, 

2010). Here, there is no basis justifying this exceptional process.

Plaintiffs’ Request to Re-Review Another 20,000 Log Entries is Unwarranted

At the November 6 hearing, the Court directed the parties to prioritize the privilege 

dispute on “the most important documents”. (Nov. 6 Tr. at 32.) Qualcomm has already 

re-reviewed nearly 5,000 document families selected by the Plaintiffs. Yet Plaintiffs again ask 

the Court to order Qualcomm to re-review nearly 20,000 log entries (and an even larger number 

of documents), including the balance of the 11,211 entries that the FTC asked the Court to order 

Qualcomm to re-review on December 14. (ECF No. 395.) The Court already rejected that 

request, and accepted Qualcomm’s compromise proposal to re-review 1,000 entries (in addition 

to the 3,571 document families the FTC had previously identified for re-review). And although 

Plaintiffs assert that the 10,000 remaining entries may contain 2,700 “erroneous claims”, there is 

no basis to assume that these documents – or the thousands of purportedly similar entries on 

Qualcomm’s litigation log – are particularly important or substantively “interesting”. Plaintiffs 

have obtained over 3 million documents from Qualcomm and over 10 million documents from 

third parties; Qualcomm has re-reviewed thousands of documents subject to an assertion of 

privilege; and Qualcomm remains open to reasonable specific requests that it re-review 

additional documents. In fact, Qualcomm has done just that in connection with recent 

depositions, re-reviewing dozens of privilege assertions identified by Plaintiffs, providing 

Plaintiffs with revised calls where appropriate. Qualcomm believes that such targeted requests 

are a reasonable way to proceed, so that the parties can focus their attention on documents that 

are more likely to matter. For such ad hoc requests, Qualcomm has been able to mobilize senior 

lawyers, providing quick and meticulous re-review; a similar process would be impractical and 

unduly burdensome for the tens of thousands of documents Plaintiffs now seek to have rereviewed.

13 Thus, Plaintiffs’ request for wholesale re-review of tens of thousands of documents 

should also be denied.

 12 Unlike in Vioxx, Plaintiffs suggest that Qualcomm pay for the entire process. 13 In Vioxx, it took the special master two months to review 2,600 documents, with the support of a law firm, 

including a “staff of paralegals”. 501 F. Supp.2d at 791, 792, 794. 

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 6 of 9
6

Dated: February 6, 2018

FEDERAL TRADE COMMISSION,

/s/ Jennifer Milici

Jennifer Milici

Daniel Matheson

Federal Trade Commission 

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-2912; (202) 326-3496 (fax)

jmilici@ftc.gov 

Attorneys for Federal Trade Commission

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

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

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 7 of 9
7

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 541-3 Filed 02/06/18 Page 8 of 9
8

FILER’S ATTESTATION

I, Jennifer Milici, am the ECF user whose identification and password are being used to 

file this Joint Discovery Submission. In compliance with Civil Local Rule 5-1(i)(3), I hereby 

attest that the signatories of this document have concurred in this filing.

/s/ Jennifer Milici

Jennifer Milici

Case 5:17-cv-00220-LHK Document 541-3 Filed 02/06/18 Page 9 of 9