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UNITED STATES COURT REPORTERS

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

PLAINTIFF,

VS.

QUALCOMM INCORPORATED,

DEFENDANT.

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CV-17-00220-LHK

SAN JOSE, CALIFORNIA

NOVEMBER 15, 2017

PAGES 1-30

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE LUCY H. KOH

UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

FOR THE PLAINTIFF: BY: JENNIFER MILICI

FEDERAL TRADE COMMISSION

600 PENNSYLVANIA AVENUE, N.W.

WASHINGTON, DC 20580

FOR THE DEFENDANT: BY: GARY ANDREW BORNSTEIN

QUALCOMM CRAVATH, SWAINE AND MOORE

WORLDWIDE PLAZA

825 EIGHTH AVE.

NEW YORK, NY 10019

APPEARANCES CONTINUED ON THE NEXT PAGE

OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR

CERTIFICATE NUMBER 13185

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED WITH COMPUTER

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SAN JOSE, CALIFORNIA NOVEMBER 15, 2017

P R O C E E D I N G S

(COURT CONVENED AT 2:26 P.M.)

THE CLERK: YOUR HONOR, CALLING CASE 17-CV-00220.

FEDERAL TRADE COMMISSION VERSUS QUALCOMM INCORPORATED.

COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES.

MS. MILICI: JENNIFER MILICI FOR THE FEDERAL TRADE

COMMISSION, WITH MY COLLEAGUE ELIZABETH GILLEN.

MR. BORNSTEIN: GOOD AFTERNOON, YOUR HONOR.

GARY BORNSTEIN FOR QUALCOMM, AND I'M JOINED BY BOB VAN

NEST AND YONATAN EVEN.

MR. VAN NEST: GOOD AFTERNOON, YOUR HONOR.

THE COURT: OKAY. GREAT. NOW I HAVE EVERYBODY.

ALL RIGHT. GOOD AFTERNOON.

OKAY. WELCOME TO EVERYBODY. IT LOOKS LIKE THERE ARE JUST

THREE ISSUES, SOME OF THEM I'M NOT FULLY CLEAR ON.

SO THE PARTIES PREVIOUSLY AGREED TO EXCHANGE PRIVILEGE

LOGS ON DECEMBER 19TH. SO I WASN'T SURE WHY QUALCOMM WANTS THE

FEDERAL TRADE COMMISSION TO PRODUCE ITS PRIVILEGE LOGS BY

NOVEMBER 22ND. AND DOES THAT ALSO APPLY TO QUALCOMM? OR YOU

WANT IT TO BE UNILATERAL?

MR. BORNSTEIN: WELL, YOUR HONOR, WE HAD NOT AGREED

ON A SPECIFIC DATE FOR EACH PARTY'S LOG. WE HAD AGREED TO A

DECEMBER 19TH DATE FOR THE PRODUCTION OF QUALCOMM'S LOG. THE

FTC PRODUCTION, ITSELF, IS ONLY ABOUT 3500 DOCUMENTS OR SO.

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AND SO WE THOUGHT IT WAS REASONABLE FOR -- AND THEY HAVE

COMPLETED, SUBSTANTIALLY COMPLETED, THE PRODUCTION OF THEIR

DOCUMENTS.

SO WE THOUGHT IT WAS REASONABLE FOR THEM TO NOT SIT AND

WAIT TO GIVE US THE LOG. SO WE REQUESTED THE NOVEMBER 22ND

DATE.

THE COURT: I DON'T KNOW, NORMALLY THOSE ARE MUTUALLY

EXCHANGED SO IT JUST SEEMS -- ANYWAY, DID YOU HAVE A RESPONSE?

MS. MILICI: I DID. THANK YOU, YOUR HONOR.

THAT WAS NOT OUR UNDERSTANDING OF THE AGREEMENT. AND I

BELIEVE IN OUR LAST CASE MANAGEMENT STATEMENT WE EVEN

REFERENCED AN AGREEMENT TO EXCHANGE PRIVILEGE LOGS.

SO THAT WAS OUR REACTION AS WELL IS THAT WE HAD AN

AGREEMENT FOR MUTUAL EXCHANGE ON DECEMBER 19TH, AND WE HAVE NOT

BEEN TOLD ANY REASON BY QUALCOMM FOR WHY IT NEEDS TO MODIFY

THAT AGREEMENT OR ANY JUSTIFICATION TO MODIFY.

THE COURT: GIVE ME JUST A MOMENT, PLEASE. WHERE IS

THAT? I'M LOOKING AT THE SEPTEMBER 6, 2017, JOINT CASE

MANAGEMENT STATEMENT. I WAS UNDER THE IMPRESSION THAT IT WAS A

MUTUAL EXCHANGE.

MS. MILICI: SORRY, I CAN'T FIND IT RIGHT THIS

SECOND, BUT THERE WAS A REFERENCE THAT THE PARTIES HAD AGREED

TO DISCUSS A MUTUAL DATE FOR THE EXCHANGE OF PRIVILEGE LOGS.

AND WE SUBSEQUENTLY DID AGREE TO DECEMBER 19TH.

THE COURT: OKAY. WELL, I DON'T SEE ANY REASON FOR

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THAT NOT TO BE A MUTUAL EXCHANGE. SO THEY WILL BE EXCHANGED ON

THE 19TH OF DECEMBER.

LET'S GO TO THE OTHER ISSUES, PLEASE.

OKAY. I GUESS THE EASIER ONE WOULD BE THE TRIAL ISSUE.

THERE'S NO BIFURCATION OF ISSUES. I'M GOING TO EXTEND THE

LENGTH OF TRIAL TO TEN DAYS, AND WE CAN REVISIT LATER WHETHER

IT NEEDS TO GO BEYOND THAT. SOUNDS LIKE IT'S STILL FAIRLY

EARLY.

MR. BORNSTEIN: SO, YOUR HONOR, I APPRECIATE THE

EXTRA TIME.

I WOULD JUST LIKE TO MAKE SURE, AND IT SOUNDS LIKE WHAT

YOUR HONOR IS SAYING IS THAT THERE WILL BE AN OPPORTUNITY FOR

US TO HAVE FURTHER DISCUSSION WITH THE COURT AT SOME POINT,

SHOULD WE THINK IT IS NECESSARY.

I'M VERY MINDFUL THAT YOUR HONOR IS VERY CAREFUL WITH YOUR

SCHEDULE, AND I JUST WOULD LIKE TO AVOID US GETTING INTO A

POSITION WHERE THE PARTIES AGREE AND WANT TO MAKE A

PRESENTATION TO THE COURT ABOUT EXTRA TIME AND THE COURT JUST

DOESN'T HAVE ANYTHING AVAILABLE, WHICH IS WHY WE RAISED IT THIS

EARLY.

THE COURT: WELL, I'M NOT GOING TO BIFURCATE, I'VE

NEVER BIFURCATED EVER. I'M NOT GOING TO MAKE AN EXCEPTION TO

THAT FOR THIS CASE.

I MEAN, IT SOUNDS LIKE YOU WANT 15 DAYS FOR LIABILITY AND

THEN YOU ARE GOING TO WANT, I DON'T KNOW HOW MANY DAYS FOR

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DAMAGES AND WHAT NOT, AND I'M NOT GOING TO AGREE TO THAT.

MR. BORNSTEIN: I UNDERSTAND THE COURT'S RULING ON

THE BIFURCATION ISSUE.

WE DO HAVE, THOUGH, OBVIOUSLY A VERY SIGNIFICANT AMOUNT OF

EVIDENCE THAT IS GOING TO NEED TO BE PRESENTED, AND I JUST WANT

TO MAKE SURE, YOUR HONOR, THAT WE HAVE ADEQUATE TIME TO PRESENT

OUR DEFENSE.

IF WE HAVE A TEN-DAY TRIAL, THAT'S FIVE DAYS FOR US AND

SOME PORTION OF THAT, MAYBE TWO DAYS IS DEVOTED TO

CROSS-EXAMINATION OF THE FTC'S WITNESSES, AND OPENINGS AND

CLOSINGS, IF YOUR HONOR WANTS THEM.

SO THAT LEAVES US THREE DAYS TO PUT ON OUR QUALCOMM FACT

WITNESSES, ANY THIRD PARTY FACT WITNESSES AND EXPERTS. IT

STRIKES ME THAT THAT WOULD BE A VERY TIGHT TIME FRAME FOR US TO

BE ABLE TO PRESENT AN ADEQUATE DEFENSE, BUT I APPRECIATE THE

EXTRA TIME THE COURT HAS ARTICULATED JUST NOW. AND AS LONG AS

THE COURT IS WILLING FOR US TO COME BACK AND REVISIT THIS AT

SOME POINT IN THE FUTURE, I DON'T SEE ANY NEED TO PRESS THE

ISSUE CURRENTLY, IF THE COURT IS NOT PREPARED TO GO FURTHER.

THE COURT: WELL, THERE ARE GOING TO BE VERY TIGHT

TIME LIMITS ON OPENING AND CLOSING, IF IT'S NECESSARY, OR YOU

MAY DECIDE YOU JUST WANT TO SUBMIT BRIEFING IN LIEU OF ACTUAL

ORAL ARGUMENT, AND YOU MAY WANT TO DO THAT AS WELL FOR OPENING,

I'M NOT SURE, THAT ACTUALLY MAY BE MORE HELPFUL TOO.

SO FOR TEN DAYS, THAT'S ABOUT ALMOST 55 HOURS OF

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TRANSCRIPT TIME, WHICH I CONSIDER THAT TO BE A LOT. AND WHAT I

WOULD DO IS IMPOSE VERY TIGHT TIME LIMITS. ANY TIME YOU ARE

TALKING, THE TIME IS COUNTING TOWARDS YOUR ALLOTMENT OF TIME.

50 HOURS, I DON'T EVEN KNOW IF I HAVE ENOUGH BRAIN CELLS FOR

MORE THAN 50 HOURS OF VERY COMPLICATED INFORMATION.

SO I WOULD HOPE THAT TEN DAYS WOULD BE SUFFICIENT. I MEAN

AS THE CASE DEVELOPS, IF YOU THINK 11 DAYS MIGHT BE NECESSARY,

BUT THIS IS A BENCH TRIAL, SO WE ARE NOT GOING TO HAVE ANY JURY

SELECTION, WE'RE NOT GOING TO BE GIVING PRELIMINARY JURY

INSTRUCTIONS OUT LOUD, READING THEM TO THE JURY. THERE WON'T

BE ANY FINAL JURY INSTRUCTIONS READ TO THE JURY. THERE WILL BE

A LOT OF TIME THAT WE DON'T HAVE TO ALOT FOR A BENCH TRIAL.

MR. BORNSTEIN: I HEAR WHERE YOUR HONOR IS.

AND WE WILL CONTINUE TO MEET AND CONFER WITH THE FTC ON

THE ISSUE, IN THE EVENT THAT WE FEEL LIKE THE TIME THAT

YOUR HONOR HAS ALLOTTED NOW, THE TEN DAYS, CONTINUES TO BE --

POSE A PROBLEM FOR US, WE WILL FIND AN OPPORTUNITY TO RAISE IT

TO THE COURT IN THE FUTURE FOR YOUR HONOR'S CONSIDERATIONS

BASED ON THE FACTS AT THE TIME.

THE COURT: THAT'S FINE. IF YOU THINK THAT TEN DAYS

IS NOT ENOUGH AS WE GET CLOSER, THEN PLEASE RE-RAISE IT. BUT I

WOULD HOPE, I MEAN, THAT REALLY WILL BE ABOUT 55 HOURS OF TRIAL

TIME. I REALLY HOPE THAT THAT WOULD BE SUFFICIENT.

MR. BORNSTEIN: MESSAGE RECEIVED, YOUR HONOR.

THE COURT: SO, OKAY. ALL RIGHT. OKAY. THANK YOU

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FOR THAT.

NOW, LET'S -- I JUST DIDN'T UNDERSTAND THE THIRD PARTY

ISSUE. YOU KNOW, I DON'T UNDERSTAND THE NEGOTIATIONS, I DON'T

UNDERSTAND -- I'M NOT REALLY CLEAR ON WHAT THIS DISPUTE IS. IS

IT THAT YOU ARE WAITING TO HEAR FROM THIRD PARTIES? WHAT'S

BEING NEGOTIATED? NOW I KNOW THE FTC, YOU WANT A CONCLUSION OF

NEGOTIATIONS BY NOVEMBER 22ND, WHICH WOULD BE, WHAT, NEXT

WEDNESDAY, IS THAT RIGHT?

WHAT DOES THAT MEAN? WHAT'S BEING NEGOTIATED? WHO IS

NEGOTIATING?

MS. MILICI: SURE.

YOUR HONOR, AT THIS POINT I BELIEVE MORE THAN 50 THIRD

PARTIES HAVE RECEIVED SUBPOENAS. A LARGE NUMBER OF THOSE WENT

OUT IN JUNE AND EARLY JULY.

THE COURT: OKAY.

MS. MILICI: IN OCTOBER, WHEN WE WERE TRYING TO

FIGURE OUT FROM THIRD PARTIES WHEN THEY WOULD BE COMPLETING

THEIR PRODUCTIONS OF DOCUMENTS, WE WERE HEARING FROM THIRD

PARTIES THAT THEY COULDN'T COMMIT TO A DATE BECAUSE THEY WERE

STILL NEGOTIATING CUSTODIANS AND SEARCH TERMS WITH QUALCOMM.

SO AT THAT STAGE WE ASKED QUALCOMM TO AGREE WITH US THAT

BOTH SIDES WOULD AIM TO COMPLETE ALL THEIR NEGOTIATIONS BY

NOVEMBER 6TH, AND SUBMIT ANY OUTSTANDING ISSUES TO THE COURT,

WITH THE AIM OF MAKING SURE THE THIRD PARTIES HAVE ENOUGH TIME

TO SUBSTANTIALLY COMPLY WITH THEIR SUBPOENAS BY THE END OF

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DECEMBER.

AND THE REASON THE END OF DECEMBER IS IMPORTANT TO US IS

THAT WE HAVE FACT DISCOVERY CUTOFF AT THE END OF MARCH, AND ESI

STIPULATION THAT SAYS THAT THE PARTIES GET 30 DAYS AFTER THE

NONPARTY FINISHES PRODUCING DOCUMENTS BEFORE THE DEPOSITIONS

CAN START.

SO WORKING BACKWARDS, WE NEED THIRD PARTIES TO COMPLETE

PRODUCTIONS BY THE END OF THE YEAR, AND THE ONLY WAY WE COULD

SEE TO HAVE THAT HAPPEN WAS FOR THE PARTIES TO CONCLUDE THEIR

NEGOTIATIONS.

QUALCOMM REFUSED THAT REQUEST, AND SO WE ARE PUTTING IT TO

THE COURT THAT, YOU KNOW, AT SOME POINT THIS PROCESS HAS TO END

SO THAT WE CAN MEET OUR OBLIGATIONS UNDER THE SCHEDULE.

THE COURT: OKAY. OF THE 50 THIRD-PARTIES, HOW MANY

HAVE PRODUCED DOCUMENTS?

MS. MILICI: I DON'T HAVE THAT NUMBER IN FRONT OF ME.

AND IN ADDITION, I WOULD SAY THAT AS TO THE NEGOTIATIONS,

QUALCOMM IS NEGOTIATING WITH THE THIRD PARTIES SEPARATELY. SO

I DON'T NECESSARILY KNOW ALL OF THE DETAILS OF THEIR

NEGOTIATIONS.

CERTAINLY, SOME THIRD PARTIES HAVE STARTED PRODUCING

DOCUMENTS, BUT -- AND I'M HAPPY TO PROVIDE A REPORT IF THAT'S

SOMETHING THAT WOULD BE HELPFUL TO THE COURT.

THE COURT: AND HOW DOES THAT WORK? THEY ARE

PRODUCING DOCUMENTS TO QUALCOMM AND QUALCOMM IS PRODUCING THEM

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TO THE FTC? OR THIRD PARTIES ARE PRODUCING THEM TO BOTH SIDES

OR WHAT'S THE SITUATION?

MS. MILICI: I THINK, GENERALLY, THEY ARE PRODUCING

THEM TO BOTH SIDES. IN THE RARE INSTANCE THAT THEY AREN'T, WE

ARE THEN PRODUCING THEM TO EACH OTHER.

THE COURT: OKAY.

MR. BORNSTEIN: AND IF IT'S HELPFUL, YOUR HONOR --

THE COURT: I'M SORRY TO INTERRUPT YOU. WHOSE

SUBPOENAS ARE THESE, BOTH SIDES?

MS. MILICI: YES, YOUR HONOR.

THE COURT: I SEE.

AND ARE YOU STILL NEGOTIATING WITH YOUR SUBPOENAED PARTIES

OR NOT? YOU COMPLIED WITH YOUR OWN DEADLINES?

MS. MILICI: I THINK FOR THE MOST PART OUR

NEGOTIATIONS HAVE COMPLETED. I DON'T BELIEVE THERE'S ANY THIRD

PARTIES WAITING FOR INFORMATION FROM US TO START REVIEW AND

PRODUCTION.

THE COURT: I SEE.

AND THEN -- BUT YOU DON'T KNOW HOW MANY OF YOUR SUBPOENAED

THIRD PARTIES HAVE PRODUCED TO YOU AT THIS POINT.

MS. MILICI: NO, IT WOULD BE THE SAME NUMBER AS I

PRODUCED TO QUALCOMM BECAUSE THEY ARE BEING PRODUCED TO BOTH

PARTIES, BUT I DON'T HAVE THOSE NUMBERS IN FRONT OF ME.

THE COURT: SO THE 50 SUBPOENAS IS TOTAL BOTH SIDES;

IS THAT RIGHT?

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MS. MILICI: YES.

THE COURT: I SEE. OKAY. BUT YOU HAVE GOTTEN SOME

DOCUMENT PRODUCTIONS FROM PARTIES YOU'VE SUBPOENAED.

MS. MILICI: YES.

THE COURT: OKAY. ALL RIGHT.

OKAY. THEN LET ME HEAR FROM QUALCOMM. I AM CONCERNED, I

HAVE THIS PROBLEM IN OTHER CASES WHERE, YOU KNOW, YOU HAVE TO

GET THE SEARCH TERMS AGREED TO AND THE CUSTODIANS, OTHERWISE

THIS LONG PROCESS OF COLLECTION AND REVIEW AND PRODUCTION WILL

GET DELAYED.

MR. BORNSTEIN: RIGHT.

SO YOUR HONOR, WE HAVE BEEN WORKING EXTREMELY HARD WITH

THE THIRD PARTIES. WE HAVE BEEN BEFORE JUDGE COUSINS A NUMBER

OF TIMES, INCLUDING AS RECENTLY AS THIS AFTERNOON --

THE COURT: OKAY.

MR. BORNSTEIN: -- ON ISSUES WHERE WE HAVE BEEN

ATTEMPTING TO GET THIRD PARTIES TO COMPLY WITH OUR SUBPOENAS.

THE COURT: OKAY.

MR. BORNSTEIN: AND THERE IS A TREMENDOUS NUMBER OF

PEOPLE SPENDING A TREMENDOUS NUMBER OF HOURS TRYING TO MAKE

THAT HAPPEN. WE HAVE BEEN ENCOUNTERING RESISTANCE FROM SOME OF

THESE THIRD PARTIES, SOME OF WHOM ARE ACTIVELY IN COORDINATING

LITIGATION STRATEGY WITH THE FTC PURSUANT TO COMMON INTEREST

AGREEMENTS.

WE HAVE BEEN NEGOTIATING, I THINK PRETTY SUCCESSFULLY WITH

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ALL OF THESE FOLKS, AND INCIDENTALLY THERE ARE 50 OR SO

PARTIES, AS COUNSEL SAID, SOME OF WHOM WERE SUBPOENAED BY US,

SOME BY THEM, MOST BOTH PARTIES HAVE SUBPOENAED.

THE COURT: OH, YOU BOTH HAVE SUBPOENAED THE SAME

PARTIES.

MR. BORNSTEIN: YES. IN MOST INSTANCES, WE SERVED

THE SAME PARTY WITH NONIDENTICAL REQUESTS.

THE COURT: I WAS GOING TO ASK HOW MUCH OVERLAP THERE

IS.

MR. BORNSTEIN: THERE IS SOME OVERLAP, BUT NOT

COMPLETE.

AND SO WE'VE GOTTEN, IN RESPONSE TO YOUR HONOR'S QUESTION,

THERE ARE 24 OF THE THIRD PARTIES WHO HAVE BEGUN PRODUCTION.

WE'VE GOTTEN OVER 230,000 OR SO DOCUMENTS. ANOTHER 20 OR SO

HAVE PROMISED TO BEGIN PRODUCTION IN THE VERY NEAR FUTURE.

AND ONE OF THE THINGS THAT WE HAVE BEEN DOING VERY

AGGRESSIVELY IS TRYING TO GET THE KIND OF SUBSTANTIAL

COMPLETION DATE THAT COUNSEL IS TALKING ABOUT.

AND WE HAVE BEEN IN FRONT OF JUDGE COUSINS WHO, BY THE WAY

HAS BEEN VERY RESPONSIVE ON THESE MOTIONS, HE'S BEEN VERY QUICK

TO GET TO US AND VERY QUICK TO RULE.

SO WE HAVE BEEN TAKING ADVANTAGE OF THAT VERY HELPFUL

RESOURCE TO GET THE THIRD PARTIES TO PRODUCE AND TO COMPLY AND

AS I SAID WE WERE JUST THERE WITH APPLE THIS AFTERNOON.

SO OUR OVERALL DESIRE IS ABSOLUTELY TO GET THESE THIRD

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PARTIES MOVING AS QUICKLY AS THEY CAN AND TO GET THE DOCUMENTS

PRODUCED. WE THINK SEE EYE TO EYE WITH THE FTC ON THAT. OUR

CONCERN IS THAT SETTING AN ARTIFICIAL DEADLINE FOR ENDING THE

NEGOTIATIONS AND AN ARTIFICIAL DEADLINE FOR BRIEFING ANYTHING

THAT REMAINS OUTSTANDING WITH JUDGE COUSINS, IS GOING TO SHUT

DOWN THE SUCCESS THAT WE'VE HAD IN NEGOTIATING WITH PEOPLE AND

IS GOING TO HAVE THE THIRD PARTIES CLAM UP, BE MORE RESISTANT

TO THE DISCOVERY THAT THEY HAVE BEEN WILLING TO GIVE US.

THEY ARE GOING TO SAY, LOOK, WE'VE GOT AN ARTIFICIAL END

DATE, LET'S JUST BRIEF IT ALL INSTEAD OF ALLOWING THE

NEGOTIATION PROCESS TO CONTINUE. AND WE ARE NOT IN A

SITUATION, AND WE WOULD SHARE THE CONCERN IF WE HAD 50 THIRD

PARTIES WHO WERE GOING TO BE PRODUCING DOCUMENTS IN LATE

DECEMBER AND INTO JANUARY. THAT'S JUST NOT WHERE WE ARE.

MOST OF THE THIRD PARTIES HAVE EITHER BEEN ORDERED BY

JUDGE COUSINS OR HAVE STIPULATED OR OTHERWISE INDICATED TO US

THAT THEY WOULD BE COMPLETING PRODUCTION IN THIS CALENDAR YEAR.

AND SOME OF THEM BY DECEMBER 1ST OR DECEMBER 15TH.

SO THERE'S REALLY, I THINK, JUST A SMALL NUMBER THAT ARE

OUTSTANDING. AND FRANKLY, WE HAVE NOT DESPITE SEVERAL REQUESTS

TO THE FTC, BEEN TOLD WHO IT IS WHO HAS BEEN COMPLAINING ABOUT

QUALCOMM NOT BEING SUFFICIENTLY DILIGENT OR AGGRESSIVE IN THIS.

IT'S NOT CERTAINLY OUR EXPERIENCE THAT WE HAVE BEEN LETTING THE

THIRD PARTIES LIE FALLOW.

WE HAVE BEEN EXTREMELY ACTIVE IN PURSUING THE THIRD

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PARTIES AND AS NECESSARY BRINGING THEM FOR JUDGE COUSINS'S

CONSIDERATION.

SO WE THINK IT WOULD BE A DISRUPTION TO THE PROCESS TO

HAVE AN ARTIFICIAL DEADLINE SET TO GET ALL OF THIS WORKED OUT

BECAUSE WE THINK WE ARE GOING THERE ON OUR OWN AND WE THINK WE

CAN GET THERE THROUGH NEGOTIATIONS AND WITH THE ABLE ASSISTANCE

OF JUDGE COUSINS ON INDIVIDUAL CIRCUMSTANCES, AS WE HAVE BEEN

SO FAR.

MS. MILICI: YOUR HONOR, IF I COULD RESPOND TO ONE

ARGUMENT THAT COUNSEL IS MAKING.

THE COURT: OKAY.

MS. MILICI: JUST TO BE CLEAR, QUALCOMM HAS BROUGHT

DISPUTES TO JUDGE COUSINS ONLY ABOUT APPLE AND INTEL, THE REST

OF THE THIRD PARTIES IN THIS CASE, THE NEGOTIATIONS HAVE NOT

INVOLVED ANY, THE COURT IN ANY WAY.

AND AS FAR AS STIPULATIONS TO COMPLETE PRODUCTION, WE

HAVEN'T SEEN THEM.

SO AS FAR AS I KNOW, THERE ARE A SUBSTANTIAL NUMBER OF

THIRD PARTIES WHO HAVEN'T MADE ANY FIRM COMMITMENT FOR WHEN

THEY ARE GOING TO COMPLETE PRODUCTIONS.

AND YOU KNOW, JUST TO GIVE A COUPLE OF EXAMPLES, WE

UNDERSTAND FROM BLACKBERRY THAT BLACKBERRY HADN'T HEARD FROM

QUALCOMM SINCE AUGUST, AND THEN JUST TEN DAYS AGO, QUALCOMM

CALLED THEM UP AND GAVE THEM A LARGE NUMBER OF REQUESTS.

SO I THINK IT'S NOT TRUE THAT QUALCOMM HAS BEEN COMPLETELY

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DILIGENT. AND I ALSO THINK THAT IT'S NOT NECESSARILY THE

POINT. WHETHER QUALCOMM HAS BEEN COMPLETELY DILIGENT IN THE

PAST OR NOT, THIS IS A PROCESS THAT HAS TO COME TO AN END.

WE HAVE A LOGISTICAL ISSUE OF THE THIRD PARTIES HAVE TO

FINISH PRODUCING DOCUMENTS SO THAT WE CAN TAKE THEIR

DEPOSITIONS.

AND FROM OUR PERSPECTIVE, HAVING A DEADLINE ARBITRARY OR

NOT, HELPS THAT PROCESS ALONG. IF THIS IS A DEADLINE FOR

SUBMITTING THINGS TO THE COURT, IT WILL CAUSE THOSE

NEGOTIATIONS TO REACH AN END.

THE COURT: OKAY. WELL, I AM GOING TO IMPOSE A

DEADLINE. WE HAVE A FACT DISCOVERY CUTOFF OF MARCH 30TH, AND

MY CONCERN IS THAT WE HAVE THE HOLIDAYS COMING UP AND THEN THEY

WILL HAVE TO DO THE COLLECTION.

I MEAN, SEARCH TERMS HAVEN'T EVEN BEEN AGREED UPON OR

CUSTODIANS, THEN WE ARE EARLY IN THE PROCESS. THEY WILL HAVE

TO DO THE COLLECTION, THEY WILL HAVE TO DO THE REVIEW, THEY

WILL HAVE TO DO THE PRODUCTION AND DO THE REVIEW, THEN THERE

WILL HAVE TO BE DEPOSITIONS.

AND MY CONCERN IS WE ARE APPROACHING THANKSGIVING AND THIS

IS A MARCH 30TH CUTOFF. SO I'M GOING TO MAKE A PROPOSAL, AND I

WILL ALLOW EVERYONE TO BE HEARD.

I WOULD PROPOSE A DEADLINE TO CONCLUDE THIRD PARTY

NEGOTIATIONS OF NOVEMBER 29TH RATHER THAN THE WEDNESDAY

THEREFORE THANKSGIVING.

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DEADLINE TO BRIEF DISPUTES, DECEMBER 15TH. DEADLINE TO

PRODUCE PRIVILEGE LOGS, WE'VE ALREADY DEALT WITH THAT ISSUE, IS

DECEMBER 19TH.

AND I WILL SET A FURTHER CMC FOR, ONE MINUTE, PLEASE.

WELL, THE DEADLINE TO COMPLETE THIRD PARTY PRODUCTION OF

JANUARY 7TH. AND I WOULD WANT THE CMC AFTER THAT DATE SO THAT

YOU CAN REPORT BACK TO ME AS TO WHAT HAPPENED.

SO I WOULD PROBABLY SUGGEST MAYBE MID-JANUARY FOR THE

FURTHER CMC.

LET ME ASK MS. MASON. I KNOW THAT THERE IS A CMC IN THE

MDL ON JANUARY 3RD, BUT I DON'T THINK THERE'S A NEED TO HAVE

THESE CASES ON THE SAME DAY. AND I THINK IT'S MORE IMPORTANT

FOR ME TO FIND OUT WHETHER THESE DEADLINES HAVE BEEN COMPLIED

WITH.

SO I THINK MAYBE THE 17TH, I DON'T KNOW, I KNOW OUR DAYS

ARE ALL IMPACTED.

THE CLERK: YOUR HONOR, UNFORTUNATELY THE 17TH IS

PROBABLY THE WORST DATE.

THE COURT: OH, OKAY. WELL, JANUARY 7TH IS ACTUALLY

A SUNDAY, SO THAT'S ACTUALLY A BAD DAY ANYWAY.

IF I SET IT ON JANUARY 12TH FOR THE PRODUCTION, DOES THAT

GIVE ENOUGH TIME FOR DIGESTION AND REVIEW OF THE THIRD PARTY

DOCUMENTS AND DEPOSITIONS?

MY CONCERN IS THAT IF THERE ARE 50, TRYING TO DO 50

DEPOSITIONS IN MARCH IS GOING TO BE EXTREMELY DIFFICULT.

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MR. BORNSTEIN: AS I NOTED, YOUR HONOR, MOST OF THE

THIRD PARTIES ARE GOING TO FINISH IN DECEMBER, BASED ON EITHER

REPRESENTATIONS THAT THEY HAVE MADE TO US OR ORDERS OR

STIPULATIONS THAT HAVE BEEN BEFORE JUDGE COUSINS.

SO I DON'T THINK WE ARE GOING TO BE IN A WORLD WHERE WE

HAVE 50 THIRD PARTIES WHO -- I HOPE ARE NOT IN THE WORLD WHERE

WE HAVE 50 THIRD PARTIES WHO ARE COMPLETING ON JANUARY 12TH.

I THINK THERE'S GOING TO BE A SMALL NUMBER WHO ARE LEFT AT

THAT POINT. I CERTAINLY HOPE THAT TO BE THE CASE.

AND IF --

THE COURT: I WILL SAY JANUARY 5TH THEN. IF IT'S

ONLY A FEW PARTIES, THEN IT'S NOT GOING TO MATTER MUCH.

LET'S DO NOVEMBER 29TH TO CONCLUDE THIRD PARTY

NEGOTIATIONS.

DECEMBER 15TH TO BRIEF ANY DISPUTES.

JANUARY 5TH TO COMPLETE PRODUCTION.

MR. BORNSTEIN: YOUR HONOR, MAY I MAKE ONE

OBSERVATION ON THE SCHEDULE?

THE COURT: YES.

MR. BORNSTEIN: SO IF WE HAVE A DECEMBER 15TH DAY FOR

BRIEFING --

THE COURT: YES.

MR. BORNSTEIN: -- I WOULD SUGGEST WE MAY NOT NEED

THE CONCLUSION OF NEGOTIATION DATE. WE WILL CERTAINLY ENDEAVOR

TO BE DONE BY THE 29TH.

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MY WHOLE CONCERN HERE HAS BEEN HAVING A DATE THAT WOULD

ARTIFICIALLY CUT OFF OUR OPPORTUNITY TO NEGOTIATE AND REACH

AGREEMENT WITH PEOPLE AND AVOID HAVING TO BRING IT TO COURT.

SO IF WE HAVE A DATE WHERE WE MUST BRIEF, IF THE

DISCUSSIONS HAPPEN TO GO INTO THE FIRST WEEK OF DECEMBER OR THE

SECOND WEEK OF DECEMBER --

THE COURT: WELL, THEN YOU JUST DON'T FILE YOUR

MOTION.

I MEAN, I THINK IT'S HELPFUL, I'VE HAD THIS PROBLEM IN

OTHER CASES TO BE EQUALLY DISAPPOINTED TO FIND OUT PEOPLE ARE

STILL NEGOTIATING SEARCH TERMS TEN MONTHS LATER AND THE

COLLECTION HASN'T EVEN BEEN DONE YET. EVEN IF THE COLLECTION

HAS BEEN DONE, THEY HAVEN'T RUN THE SEARCH TERMS ON WHAT'S BEEN

COLLECTED, AND IT IS A PROBLEM.

MR. BORNSTEIN: TO BE CLEAR, YOUR HONOR, WE HAVE FOR,

AGAIN, MOST -- WITH THE EXCEPTION OF ONE SET OF THIRD PARTIES

THAT I CAN THINK OF WHO ARE NEGOTIATING WITH US JOINTLY, WE

HAVE REACHED CUSTODIAN SEARCH TERM AGREEMENTS WITH VIRTUALLY

EVERYBODY. SO THAT, TOO, IS NOT --

THE COURT: WELL THEN, I COULD SET THE DEADLINE ON

NOVEMBER 22ND THEN, IF YOU ONLY HAVE A FEW YOU NEED TO AGREE

WITH, RIGHT? BECAUSE YOU'VE ALREADY DONE IT WITH VIRTUALLY

EVERYBODY ELSE.

THEN I WILL ADVANCE IT TO NOVEMBER 22ND IF IT'S REALLY

THAT SMALL IN NUMBER.

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MR. BORNSTEIN: WELL AGAIN, THE PROBLEM YOUR HONOR,

ISN'T HOW MANY WE ARE NEGOTIATING WITH, IT'S ARTIFICIALLY

CUTTING IT OFF. THAT'S REALLY OUR CONCERN.

IF WE HAVE THE BRIEFING DATE, I THINK THAT WILL ACCOMPLISH

GETTING EVERYTHING RESOLVED. I HATE THE PROSPECT OF NOT BEING

ABLE TO CONTINUE TALKING TO PEOPLE AND HAVE HAVING THEM SAY

LOOK, WE ARE DONE, WE ARE NOT WILLING TO TALK TO YOU BECAUSE

THE COURT SAID THIS IS THE DATE WE HAVE TO BE FINISHED, THAT'S

ALL.

AND I DON'T WANT TO LEAVE THE MISIMPRESSION THAT WE HAVE

20, 30 PARTIES WHO HAVEN'T COME UP WITH CUSTODIANS.

BUT WE ARE HAPPY TO OBVIOUSLY TAKE THE COURT'S DIRECTION

ON THE 29TH AND 15TH, IF THAT'S THE COURT'S PREFERENCE. AND IF

WE ARE ABLE TO CONTINUE TALKING TO PEOPLE AFTER THE 29TH AND

COME TO AGREEMENT, THEN AS YOU SAID WE WON'T FILE OUR MOTION.

THE COURT: THEN YOU WON'T FILE YOUR MOTION.

I WOULD PREFER TO SET SOME DEADLINES.

SO LET'S HAVE THE DEADLINE TO CONCLUDE THIRD PARTY

NEGOTIATIONS BE NOVEMBER 29TH.

THE DEADLINE TO BRIEF DISPUTES REGARDING THIRD PARTY

DISCOVERY BE DECEMBER 15TH.

AND THE DEADLINE TO COMPLETE THIRD PARTY PRODUCTION BE

JANUARY 5TH.

I AM FULLY INTENT ON STAYING ON SCHEDULE AND HAVING THIS

FACT DISCOVERY CUTOFF REMAIN MARCH 30TH.

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AS FAR AS THE CMC THEN, IT SOUNDS LIKE WHAT DATE LOOKED

BETTER? YOU SAID THE 17TH IS WORSE?

THE CLERK: YES, YOUR HONOR. THE 24TH IS AVAILABLE.

THE COURT: ARE YOU AVAILABLE THAT DAY?

MS. MILICI: YES, YOUR HONOR.

MR. BORNSTEIN: I AM YOUR HONOR.

THE COURT: OKAY. ALL RIGHT. THEN LET'S SET THE

FURTHER CMC, PLEASE, FOR JANUARY 24TH.

OKAY. WHAT ELSE? ANYTHING -- THOSE WERE THE ONLY ISSUES

I SAW IN YOUR STATEMENT. AND OBVIOUSLY, IF THERE'S NO ISSUE

THAT WE NEED TO DISCUSS ON THE 24TH, I WILL JUST CONTINUE IT

OUT TO ANOTHER LATER DATE.

MS. MILICI: YOUR HONOR, WE HAVE TWO MORE ISSUES THAT

RELATE TO THE SCHEDULE.

AND THE FIRST IS THAT AS I MENTIONED THE ESI STIPULATION

HAS A 30-DAY WAITING PERIOD FROM THE CLOSE OF THE THIRD

PARTY'S -- FROM THE COMPLETION OF THEIR PRODUCTION TO THE

DEPOSITION.

AND AGAIN, WE ARE KIND OF IN A LOGISTICAL ISSUE HERE. SO

WE HAVE ASKED TO MODIFY THAT TO CHANGE THAT TO TWO WEEKS. AND

QUALCOMM HAS DISAGREES WITH THAT.

BUT WE DO THINK THAT IT WILL HELP US MEET THE MARCH 30TH

DEADLINE IF IT'S 14 DAYS FROM THE COMPLETION OF PRODUCTION TO

THE DEPOSITION.

THE COURT: BUT WHO SIGNED THAT ESI ORDER? WAS THAT

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JUDGE COUSINS? WOULD HE BE THE MORE APPROPRIATE TO MAKE THAT

REQUEST TO? IF HE'S HANDLING SOMETHING, I DON'T WANT TO STEP

IN.

MS. MILICI: SURE.

THE COURT: UNLESS THERE'S AN OBJECTION TO A RULING

THAT HE'S MADE. WAS HE THE ONE? I PROBABLY HAVE IT IN MY

FILE.

MS. MILICI: I BELIEVE THAT'S CORRECT, YOUR HONOR.

AND WE ARE HAPPY TO BRING IT TO JUDGE COUSINS.

THE COURT: I THINK THAT PROBABLY WOULD BE BEST.

OKAY. WHAT ELSE? ANYTHING ELSE?

MS. MILICI: YOUR HONOR, ONE OTHER ISSUE RELATING TO

THE SCHEDULE, WHICH IS THAT QUALCOMM HAS RECENTLY TOLD THE FTC

THAT IT INTENDS TO PRODUCE DOCUMENTS AFTER THE DATE THAT WE

AGREED ON FOR SUBSTANTIAL COMPLETION OF THEIR OWN PRODUCTION.

THEY'VE PROPOSED, OR NOT PROPOSED, THEY'VE SAID THAT THEY

ARE GOING TO PRODUCE ADDITIONAL DOCUMENTS FROM TWO CUSTODIANS

FOR A PERIOD UP THROUGH THE END OF SEPTEMBER, AND THAT THEY

WOULD TRY TO FINISH THOSE PRODUCTIONS BY THE END OF THE YEAR.

AGAIN, WE HAVE MULTIPLE CONCERNS WITH THIS AND IT MIGHT BE

APPROPRIATE TO BRING THOSE TO JUDGE COUSINS IN THE FIRST PLACE,

BUT I WANTED TO FLAG IT FOR YOUR HONOR.

THE COURT: WHAT WAS THE SUBSTANTIAL COMPLETION

DEADLINE, YOU SAID SEPTEMBER?

MS. MILICI: NOVEMBER 28TH.

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THE COURT: OH, SO THEY JUST WANT ONE MORE MONTH.

MS. MILICI: THEY WANT ONE MORE MONTH. BUT AGAIN,

THIS IS A LOGISTICAL ISSUE WITH DEPOSITIONS, YOU KNOW, WE WERE

HOPING TO AT LEAST START QUALCOMM DEPOSITIONS IN DECEMBER,

GIVEN THE SCHEDULING THAT WE WILL HAVE TO DEAL WITH.

THE COURT: I'M SORRY TO INTERRUPT YOU, WHAT WAS THE

SUBSTANTIAL COMPLETION DATE?

MS. MILICI: NOVEMBER 28TH IS THE AGREED DATE.

THE COURT: SO NEXT TUESDAY. SO WHEN ARE YOU GOING

TO -- WHY CAN'T YOU MEET YOUR AGREED UPON SUBSTANTIAL

COMPLETION DATE?

MR. BORNSTEIN: WE ABSOLUTELY CAN AND WILL,

YOUR HONOR. WE ARE MEETING THE NOVEMBER 28TH DEADLINE FOR THE

DOCUMENTS WE AGREED TO PRODUCE BY NOVEMBER 28TH.

WE HAD A DISCUSSION AND AN AGREEMENT WHICH APPEARS IN THE

SEPTEMBER 6TH CASE MANAGEMENT CONFERENCE, IT'S ON PAGE 7,

YOUR HONOR, WHICH RELATES TO DOCUMENTS THAT ARE OUTSIDE OF THE

TIME FRAME THAT WE AGREED TO COMPLETE PRODUCTION BY

NOVEMBER 28TH.

WHAT THIS IS, YOUR HONOR, IS WE THINK IT'S NECESSARY AND

APPROPRIATE TO UPDATE THE PRODUCTION PAST THE CUTOFF DATE FOR

DOCUMENTS THAT WE'VE PRODUCED SO FAR, GIVEN THE FTC IS

REQUESTING INJUNCTIVE RELIEF.

WE THINK IT'S IMPORTANT FOR THE COURT TO HAVE ADDITIONAL

INFORMATION ABOUT THE CURRENT STATE OF THE COMPETITION IN THE

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MARKET. AND SO WE'VE IDENTIFIED CUSTODIANS WHO WE BELIEVE ARE

MOST RELEVANT TO ISSUES AROUND THE STATE OF COMPETITION IN THE

MARKETS THAT THE FTC HAS ALLEGED.

AND SO OUR INTENTION WAS TO PROVIDE ADDITIONAL DOCUMENTS

OVER AND ABOVE THOSE THAT WE HAD AGREED TO PRODUCE BY

NOVEMBER 28TH, AND TO DO THAT AS QUICKLY AS WE CAN.

THE COURT: I WANT A DEADLINE WHEN ARE YOU GOING TO

PRODUCE THAT.

MR. BORNSTEIN: SURE.

THE DATE I HAD SUGGESTED TO COUNSEL WAS DECEMBER 31ST, AND

WE WILL DO OUR VERY BEST TO STICK TO THAT.

THE COURT: I THINK THAT'S TOO LATE. THAT'S TOO

LATE. I WANT TO KEEP THE MARCH 30TH DISCOVERY CUTOFF.

MR. BORNSTEIN: I UNDERSTAND THAT, YOUR HONOR.

THE COURT: AND IF THEY ARE GOING TO GET A DOCUMENT

DUMP ON NEW YEARS EVE THAT THEY ARE GOING TO HAVE TO DIGEST AND

ANALYZE AND PREPARE FOR DEPOSITIONS, AND THERE MAY BE UP TO 50

THIRD PARTY DEPOSITIONS, THAT'S TOO LATE, I WANT THAT PRODUCED

BY THE 14TH OF DECEMBER.

MR. BORNSTEIN: WE WILL INVESTIGATE THAT, YOUR HONOR.

THE GIST OF IT'S CLEAR. WE ARE TALKING ABOUT TWO

CUSTODIANS, NOT A BIG DOCUMENT DUMP, AND ONLY FOR A FEW MONTHS

OF TIME. SO IT SHOULD BE A RELATIVELY --

THE COURT: SO THEN WHY DO YOU NEED 31 PLUS TWO

WEEKS?

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MR. BORNSTEIN: BECAUSE WE ARE WORKING ON GETTING THE

PRIVILEGE LOG, WE HAVE TO COLLECT THE DOCUMENTS, WE HAVE TO GO

THROUGH THEM. BUT WE WILL MAKE EVERY EFFORT TO GET THEM BY THE

DATES YOUR HONOR SUGGESTED.

THE COURT: THERE ARE FOUR LAW FIRMS, FIVE LAW FIRMS

WORKING ON THIS. MORGAN LEWIS, QUINN EMANUEL, KECKER VAN NEST,

CRAVATH SWAINE, BINGHAM MCCUTCHEN -- I DON'T KNOW IF THEY ARE

STILL INVOLVED OR NOT.

MR. BORNSTEIN: THEY ARE MORGAN LEWIS NOW.

THE COURT: THEY ARE MORGAN LEWIS.

ALL RIGHT. WELL, MORGAN LEWIS, QUINN EMANUEL, KEKER VAN

NEST, YOU HAVE FOUR LAW FIRMS ON THIS, I THINK SOMEONE CAN DO

THE PRIVILEGE LOG AND SOMEONE CAN DO THE COLLECTION AND

PRODUCTION.

SO I WANT TO -- YOU KNOW, I JUST REALLY WANT TO KEEP OUR

CASE SCHEDULE. AND SO, UNFORTUNATELY, I THINK I'M GOING TO

HAVE TO IMPOSE SOME DEADLINES JUST TO MAKE SURE THAT WE CAN

STAY ON TRACK.

MR. BORNSTEIN: WE WILL GET THOSE TWO CUSTODIANS

PRODUCED BY THAT DATE.

THE COURT: ALL RIGHT. THANK YOU.

MS. MILICI: AND YOUR HONOR, TO BE CLEAR, WHAT'S

HAPPENED HERE IS THAT QUALCOMM, IN A LETTER TO INTEL,

REPRESENTED THAT INTEL SHOULD BE PRODUCING DOCUMENTS FOR A

PERIOD UP THROUGH THE END OF SEPTEMBER, BECAUSE THAT'S HIGHLY

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RELEVANT TO THEIR DEFENSES BECAUSE THAT PERIOD OF TIME IS

HIGHLY RELEVANT TO QUALCOMM'S DEFENSES.

THAT IS THE FIRST WE'VE HEARD ABOUT THAT. UP UNTIL WHEN

WE SAW THAT LETTER, WHICH WAS SOME TIME IN MID-OCTOBER,

QUALCOMM WAS TAKING THE POSITION THAT IT DOES NOT HAVE TO

REFRESH ANY OF ITS CUSTODIANS AND THE COLLECTION LAST, WHATEVER

IT WAS, APRIL OR MAY, WAS SUFFICIENT.

THEY HAVE NOW COME BACK TO US AND SAID, WELL, WE ARE GOING

TO REFRESH, BUT ONLY FOR THESE TWO CUSTODIANS BECAUSE THESE

DOCUMENTS ARE RELEVANT TO OUR DEFENSE.

THEY HAVEN'T TOLD US WHAT THAT DEFENSE IS, THEY HAVEN'T

ARTICULATED IT. WE DON'T HAVE ANY WAY OF KNOWING WHETHER THAT

ADDITIONAL PRODUCTION IS SUFFICIENT TO GIVE US DISCOVERY ABOUT

THAT DEFENSE.

SO WE ARE CONCERNED ABOUT THEM PRODUCING ANYTHING OUTSIDE

OF THE PERIOD THAT WE AGREED ON. BUT WE ARE ALSO CONCERNED

ABOUT THE SCOPE OF THIS PRODUCTION. AND IN ADDITION, WHETHER

THEY ARE GOING TO DO IT AGAIN. ARE THEY GOING TO COME BACK IN

JANUARY AND SAY WELL, SOMETHING HAPPENED IN DECEMBER THAT'S

RELEVANT TO OUR DEFENSES, WE ARE GOING TO PRODUCE MORE

DOCUMENTS FROM MORE CUSTODIANS. THERE HAS TO BE AN END.

MR. BORNSTEIN: WELL, YOUR HONOR, WE HAD --

THE COURT: I'M SORRY, I'M SORRY TO INTERRUPT YOU.

MR. BORNSTEIN: NO, PLEASE.

THE COURT: I GUESS I DON'T UNDERSTAND.

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YOU DON'T WANT DOCUMENTS BEYOND APRIL OF 2017? OR YOU

WANT ALL DOCUMENTS BEYOND 2017 SO IT'S NOT CHERRY PICKING,

JUST A FEW CUSTODIANS THAT MAY BE FAVORABLE AND THEN NOT

PRODUCE ANYTHING BEYOND APRIL THAT WOULD BE UNFAVORABLE TO

QUALCOMM.

MS. MILICI: EXACTLY, YOUR HONOR.

AND FRANKLY, WE DON'T HAVE ENOUGH INFORMATION ABOUT WHAT

IT IS THEY ARE TRYING TO SHOW WITH THESE REFRESHED CUSTODIANS,

BUT IT SEEMS TO ME THAT THEY HAVE BEEN REFUSING TO REFRESH

ANYBODY ELSE, AND THEY COME TO US AND SAY, WE ARE GOING TO

REFRESH THESE TWO AND NOT ANYBODY ELSE, AND THAT STRIKES ME AS

CHERRY PICKING, AS YOUR HONOR SAID.

MR. BORNSTEIN: YOUR HONOR, THIS IS NOT AN ACCURATE

REFLECTION OF THE CONVERSATIONS THAT WE HAVE BEEN HAVING. WE

NEVER SAID WE WOULDN'T DISCUSS ANYBODY ELSE.

WE RECEIVED A LETTER THIS MORNING FROM THE FTC ASKING US

FURTHER QUESTIONS ABOUT THIS ISSUE.

IN THE CMC STATEMENT WE FILED WITH YOUR HONOR FOR THIS

CONFERENCE, WE INDICATED WE WERE MEETING AND CONFERRING ON THIS

ISSUE. AND WE ARE HAPPY TO CONTINUE DOING THAT, WE THINK WE

SHOULD CONTINUE DOING IS THAT BEFORE REACHING A PREMATURE

CONCLUSION ON WHAT'S GOING TO HAPPEN.

THE COURT: I'M SORRY TO INTERRUPT YOU.

SO FOR THIRD PARTIES, ARE YOU ASKING FOR DOCUMENTS THROUGH

SEPTEMBER 2017, BUT YOUR PRODUCTION IS LIMITED TO APRIL OF

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2017?

MR. BORNSTEIN: WE'VE BEEN NEGOTIATING THAT WITH THE

THIRD PARTIES.

TYPICALLY, THE THIRD PARTIES HAVE TAKEN THE POSITION THAT

THEY WILL PRODUCE ONLY THROUGH THE DATE OF THE SUBPOENA THAT

THEY RECEIVED.

AND FOR INTEL, THAT WAS A SUBSEQUENT SUBPOENA, SO THAT IS

THE REASON WE WERE SEEKING DOCUMENTS, AND THEY ULTIMATELY

AGREED TO PRODUCE DOCUMENTS THROUGH THE SEPTEMBER TIME PERIOD.

FOR OUR OWN PRODUCTION, WE HAD AGREED WITH THE FTC TO

PRODUCE THROUGH THE CUTOFF DATE ON WHICH WE HAD COLLECTED. AND

IT IS OUR VIEW THAT IT'S GOING TO BE IMPORTANT TO THE COURT TO

HAVE ADDITIONAL INFORMATION ABOUT HOW THE MARKET HAS DEVELOPED

BETWEEN THE TIME OF THAT CUTOFF DATE AND THE TIME OF THE TRIAL.

SO THE COURT CAN CONSIDER THE ISSUES AND FASHION ANY RELIEF THE

COURT MAY ULTIMATELY DEEM TO BE WARRANTED. WE HOPE WE WILL GET

THERE.

THE COURT: I DON'T WANT CHERRY PICKED DATA OR CHERRY

PICKED DISCOVERY. WHAT'S THE CUTOFF DATE? APRIL?

MS. MILICI: I'M NOT SURE THAT QUALCOMM EVER TOLD US

WHAT THEIR COLLECTION DATES WERE.

AND JUST TO BE CLEAR, THE FTC NEVER AGREED THAT THAT WAS

THE END OF THEIR OBLIGATIONS, WAS THROUGH THE DATE OF THEIR

LAST COLLECTION.

WE HAVE CONSISTENTLY SAID WE EITHER -- IF YOU ARE GOING TO

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UNITED STATES COURT REPORTERS

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PRESENT EVIDENCE FROM AN ADDITIONAL TIME FRAME, THEN THE

COLLECTION THAT YOU'VE DONE WOULDN'T BE SUFFICIENT.

MR. BORNSTEIN: AND WE HAVE A PROCESS FOR DEALING

THAT, YOUR HONOR.

THE COURT: WHAT'S YOUR COLLECTION CUTOFF? WHEN WAS

YOUR COLLECTION --

MR. BORNSTEIN: I DON'T HAVE THE SPECIFIC DATE, I

THINK IT'S ACTUALLY SOMEWHAT VARYING BY CUSTODIAN.

WE CAN CERTAINLY GET THAT TO THE COURT, BUT IT'S, ROUGHLY

SPEAKING, IT WAS IN LATE SPRING, EARLY SUMMER, I BELIEVE.

AND SO WE DO THINK, THOUGH, THAT IT WILL BE APPROPRIATE TO

PRESENT EVIDENCE TO THE COURT AT TRIAL ON THINGS THAT HAPPENED

AFTER THE MIDDLE OF 2017. WE ARE GOING TO HAVE AN IPHONE 11 OR

WHATEVER THEY MAY CALL IT, SOME TIME NEXT YEAR, AND IT WOULD BE

VERY STRANGE --

THE COURT: BUT THEN I WANT THE FULL DISCOVERY, I

DON'T WANT TWO CHERRY PICKED CUSTODIANS.

MR. BORNSTEIN: WELL, I THINK YOUR HONOR, WE OUGHT TO

NEGOTIATE THE SCOPE, THAT'S WHAT I WANT TO DO WITH COUNSEL,

THAT'S WHAT WE WERE PLANNING ON DOING, AND NOW I'M SORT OF

BEING SANDBAGGED HERE WITH AN EFFORT TO GET A RULING FROM THE

COURT BEFORE WE'VE HAD AN OPPORTUNITY TO MEET AND CONFER AND

BEFORE I'VE EVEN GOTTEN A PROPOSAL FROM COUNSEL ON WHAT THEY

THINK IS APPROPRIATE TO DO.

THE COURT: ALL RIGHT. LET'S SET A DATE BY WHICH YOU

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UNITED STATES COURT REPORTERS

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ARE GOING TO FILE A CASE MANAGEMENT STATEMENT TO GIVE ME AN

UPDATE ON THIS ISSUE. I THINK THAT'S FAIR.

MR. BORNSTEIN: THANK YOU, YOUR HONOR.

THE COURT: WHEN IS THAT GOING TO BE?

MR. BORNSTEIN: SO I THINK WE CAN DO THAT FIRST WEEK

OF DECEMBER.

MS. MILICI: I THINK WE COULD DO IT SOONER THAN THAT,

AND I DO THINK THAT THIS IS AN ISSUE THAT NEEDS TO BE RESOLVED

BECAUSE IT POTENTIALLY HAS AN IMPACT ON THE SCHEDULE. AND AS

YOUR HONOR SAID, WE ARE WORKING VERY HARD TO KEEP THE

MARCH 30TH DEADLINE.

THE COURT: I THINK DECEMBER 8TH IS FINE.

SO PLEASE FILE A SUPPLEMENTAL JOINT CASE MANAGEMENT

STATEMENT BY DECEMBER 8TH. JUST LET ME KNOW WHAT THE STATUS OF

THIS ISSUE.

I DON'T WANT THE PLAINTIFF TO BE SANDBAGGING AND

EXPLOITING THE CMC'S TO GET A LOT OF THINGS THAT YOU HAVEN'T

ALREADY MET AND CONFERRED ABOUT OR THAT ARE NOT RIPE.

MS. MILICI: YOUR HONOR, WE HAVE MET AND CONFERRED

ABOUT THIS. WE DID JUST RECEIVE THIS PROPOSAL FROM THEM, A

SPECIFIC PROPOSAL. AND YOU KNOW, MY ISSUE IS REALLY TRYING TO

KEEP THE SCHEDULE.

THE COURT: ALL RIGHT. WELL, FILE A DECEMBER 8,

2017, A JOINT CASE MANAGEMENT STATEMENT, PLEASE, THAT GIVES ME

AN UPDATE ON QUALCOMM'S PRODUCTION.

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WHAT ELSE, ANYTHING ELSE?

MR. BORNSTEIN: NOT FROM QUALCOMM, YOUR HONOR.

MS. MILICI: NOT FROM PLAINTIFFS.

THE COURT: ALL RIGHT. THANK YOU ALL VERY MUCH.

THANK YOU.

MR. BORNSTEIN: THANK YOU, YOUR HONOR.

(THE PROCEEDINGS WERE CONCLUDED AT 3:02 P.M.)

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CERTIFICATE OF REPORTER

I, THE UNDERSIGNED OFFICIAL COURT

REPORTER OF THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

CERTIFY:

THAT THE FOREGOING TRANSCRIPT,

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

TRANSCRIPTION TO THE BEST OF MY ABILITY.

_________________________

SUMMER A. FISHER, CSR, CRR

CERTIFICATE NUMBER 13185 DATED: 11/16/17

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