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 

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 

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 

Kenneth H. Merber, D.C. Bar No. 985703 

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 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com 

Willard K. Tom (pro hac vice) 

willard.tom@morganlewis.com 

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 

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 

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 

DEFENDANT QUALCOMM 

INCORPORATED AND PLAINTIFF 

FEDERAL TRADE COMMISSION’S 

JOINT DISCOVERY STATEMENT 

Courtroom: 7, 4th Floor 

Judge: Hon. Nathanael M. Cousins 

PUBLIC VERSION 

REDACTED VERSION OF DOCUMENT(S) SOUGHT TO BE SEALED

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 1 of 8
Qualcomm and the FTC submit this joint statement. The patties have met and confen ed 

on the issue discussed herein and have not been able to reach agreement. 

Qualcomm's Position 

Qualcomm requests that the Comt direct the FTC, in response to Qualcoilllll's Third Set 

of Requests for Production Nos. 4-6/ to produce all communications with certain third patties, 

including their cmmsel, as set f01th in those requests.

2 The FTC's pmp01ted justifications for 

withholding these COillllllmications have changed over time. Beginning in December 2017 and 

through the patties' final meet and confer on the subject in Januaty 2018, the FTC objected to 

producing such COillllllmications based on its pmported oral common-interest agreements and on 

relevance and bmden grmmds. Then, after reviewing Qualcoilllll' s draft of its half of this 

Statement, the FTC abandoned its reliance on the common-interest doctrine and instead claims 

that the work-product doctrine shields the communications from discove1y . The FTC's 

arg:mrtents fail. the FTC has not established nTnt·lr- ,n •·nt1• 

.c>.uu•"' IS a ill a 

conspiracy with Qualcomm and thus, by its own contention, the FTC is adverse to Apple.

3 

adversity alone is enough to eviscerate any work-product protection that might othe1wise apply. 

The FTC has not agreed to forego prosecuting a claim against Apple directly, and also has not 

agreed to withhold Apple 's materials from other govemment entities that may choose to pmsue 

Apple, fmt her waiving any · Secon the FTC's relevance and bmden 

objections at·e undercut by 

and by its admission that it not protauc~ea 

A. The requested FTC communications may not be withheld as work product 

As with its now-abandoned coilllllon-interest doctrine argument, the FTC's work-product 

doctrine at·gument fails for multiple reasons. As an initial matter, the FTC has not specified what 

it claims as work product. Communications do not become work · because 

between a common adversaty, 

See e.g., 

v. zco 644 (E.D. Cal. 2014). In claiming workproduct privilege, the FTC beat·s the bmden of showing it- something it has not even attempted. 

But even if the FTC did show the existence of work-product protection for these 

materials prior to their exchange between the FTC and the third patties, it would have to fmther 

show that the exchange did not waive any privilege claim. Doing so would require showing that 

the exchange was made either (1) with a pa1ty with which it had a common interest or (2) in a 

manner that would not increase a potential adversaty's access to the materials. See, e.g., 

California Sportfishing, 299 F.R.D. at 647. 

As to the first prong, the FTC caimot show a common interest due to adversity. Here, 

FTC-Apple adversity exists even without the FTC filing suit against Apple directly, because the 

finding that the FTC seeks- that Qualcoilllll and Apple engaged in a conspiracy, in violation of 

1 Qualcomm has not, contrary to FfC's claim, abandoned Requests 4-5 regarding the CMs and MDL Plaintiffs. As 

Apple's indemnitees, the arguments here regarding Apple would apply equally to the CMs; note 4 below explains 

the conflict between the MDL Plaintiffs' and the FTC's theories that undercuts the purpmted common interest. 

2 These RFPs seek: "All Communications between You and Apple or Apple's attomeys Relating to any of the 

Actions" (No. 4); "All Communications betv.•een You and any of the Contract Manufacturers or their attomeys 

Relating to any of the Actions" (No. 5); and "All Communications between You and any of the plaintiffs in [the 

MDL action], or their attomeys, Relating to any of the Actions" (No. 6). 3 The FTC has said that it considers "Qualcomm 's de facto exclusive dealing and related contracts with Apple" to 

violate Section 1 of the Shennan Act. FTC Obj. & Resp. to Qualcomm Rog. No. 2 (12/15/ 17). 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 2 of 8
Section 1 of the Shennan Act-is inherently adverse to Apple.4 That is, Apple would be jointly 

and severally liable for a judicial fmding that it participated in a Section 1 conspiracy, thereby 

increasing the risk of future litigation by other plaintiffs. 5 The FTC attempts to confuse this issue 

by noting that the FTC and Apple are both adverse to Qualcomm. But the question is whether 

Apple is adverse to the FTC; if they are, the privilege is waived. There is no "the-enemy-of-myenemy-is-my-friend" exception to the mles of work product and waiver. As to the second prong, 

the FTC cannot show that the material communicated will be withheld from potential adversaries 

because, as stated, the FTC itself is an actual adversaty of Apple. Indeed, any commitment to 

keep the materials confidential would require the FTC, on behalf of itself and other agencies that 

might seek to share the information, to forego any action against Apple based on what Apple 

provided- an effective grant of irmmmity to Apple.6 Put simply, material exchanged between 

the FTC and Apple is material exchanged between adversaries, and material sent from Apple to 

the FTC is material from an adversaty that the FTC can share such material with other potential 

govemmental adversaries, e.g., the DOJ, given the lack of a confidentiality obligation.

7 In sum, 

the FTC's ability to rely on the work product doctrine fails under either prong.

8 

B. The requested materials are relevant and not unduly burdensome to produce 

This Comi has ah·eady mled, in the context of the so-called infonnant materials, that the 

FTC's commlmications with commercially interested third pruiies ru·e discoverable. D.E. 176 at 

4-5. The commlmications now at issue are no different. The FTC's suggestion that the Comi 

has mled othetw ise is misplaced. The Comi's decision that a third party (i.e. , Apple) should not 

have to produce post-complaint communications with other third parties, is ftmdatnentally 

different from the situation here. Qualcornm is asking a party (i.e. , the FTC) to make an 

unquestionably non-burdensome production of cormnunications it had with counsel for a 

cormnercially interested non-pruiy (i.e. , Apple) that claims it was coerced by Qualcomm, while 

at the same time the FTC expressly identifies Apple as a co-conspirator that violated Section 1 of 

the Shennan Act. 

4 Moreover, the FfC and Apple have dissimilar, conflicting theories. As just one example, the FTC alleges that 

Qualcomm maintains lower prices for its chipsets as prut of an alleged scheme to foreclose competitor chipmakers. 

FfC Compl. ~ 94. But Apple alleges that Qualconun charges supra-competitive chip prices, Apple First Am. 

Compl. ~ 650, as does the MDL Plaintiff who has testified regarding the issue. 5 This risk is more than hypothetical; a class suit in Israel, relying on an EU fme against Qualcomm (pettaining to 

the same allegations made by the FfC) names both Qualcomm and Apple as co-conspirators and co-defendants. 6 See 15 U.S.C. §§ 46(f), 57b-2 (statutory ability to share infonnation with Congress and other agencies). 

7 The work product cases the FTC cites are factually and legally distinguishable, and Qualcomm is prepared to 

address them in fwiher briefmg should the Cowt wish. However, given the clear adversity between Apple and the 

FfC, the Cowt can resolve the FTC's work product claim without an account of the many differences in those cases. 8 The FTC previously claimed it "entered oral common interest agreements with Apple on April13, 2017, and with 

Class Plaintiffs on May 18, 2017." Resp. to Qualconun Rog. No.3 (12/15/17). In the first draft of this Joint 

Discovery Statement, Qualcomm noted that the FTC could not withhold infmmation under those pwported 

agreements for similar reasons: adversity destroys any claim of common interest. United States v. Bergonzi, 216 

F.R.D. 487, 495- 96 (N.D. Cal. 2003). The FTC then abandoned its reliance on the common-interest doctrine, but 

now claims in a footnote not to have done so, without making any sepru·ate argument under that doctrine. The 

ad,renntv betv.•een and the FTC common-interest claim ''-"·""·"'-o•o. 

2 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 3 of 8
. 

10 Indeed, discussions of legal 

or econormc parttes may go to of the FTC's expetts (e.g., if an 

expert is taking a position suggested to the FTC by Apple), but in any event, admissibility at trial 

is not the standard applied to a relevance determination. The FTC attempts to collapse the 

relevance and work product issues, ar·guing that most withheld documents ar·e in elevant11 and the 

remainder ar·e work product. But the FTC never denies that at least some of its purp01ted work 

product is relevant- as even unquestionably privileged documents may be. Furthe1more, the 

FTC faces no burden in collecting this info1mation. Emails exchanged between a handful of 

FTC attomeys and cmmsel for Apple, the CMs, or the MDL Plaintiffs ar·e not difficult to obtain. 

In fact, the FTC's suggestion that doing so would be burdensome conflicts with , 

such as its · of · communications from some custodians,- 13 

Qualcotnm insisted that the FTC and other plaintiffs coordinate discove1y and is now 

seeking to thwart the effectiveness of that coordination by demanding the production of postcomplaint communications among counsel for plaintiffs. 14 Qualcomm carmot muster a coherent 

ar·gument about the relevance of these cotnmunications to any claim or defense. The vast 

majority of the cotnmunications concem non-substantive document production and logistical 

matters, which Qualcomm concedes are inelevant. To the extent that any cotnmunications 

among counsel disclose litigation strategy, those communications would be both immaterial to 

the disputed issues and protected from disclosure by the work product doctrine. Work product 

protection is not waived by disclosure among parties litigating similar· issues against a common 

adversa1y, because such disclosure does not substantially increase the likelihood that the 

disclosing pariy's opponent would obtain the info1mation.

15 The burden of collecting and 

reviewing communications that ar·e (a) of minimal, if any, relevance, and (b) protected from 

disclosure by the work product doctrine, is not prop01tional to the needs of the case. 

A. Qualcomm 's requests do not satisfy Rule 26(b)(I) 's proportionality test 

Qualcotnm's RFPs seek the FTC's post-complaint commlmications about this litigation 

with outside counsel for other plaintiffs. 16 This Comi has ah-eady held that Apple need not 

uu~;umLt:In pro>dU<;hon are 

"i.nelevant." Conummications discussing the substance of documents or related testimony are relevant. 12 Qualconun's statements about burden (D.E. 378) are in·elevant. Qualcomm was describing burden in the context 

of its prior production of 1.2 MM documents, which would far exceed the volume of communications at issue here. 13 Qualconun is not thwatting coordination of discovery, which is an administrative matter. There is no reason why 

granting Qualcomm relief would chill communications about coordination matters such as sharing deposition time. 14 Efficient coordination requires open communication about discovety strategy. Among other things, counsel must 

communicate openly to efficiently split extremely limited deposition time among plaintiffs in four different actions. 

15 The FTC does not understand the distinction that Qualcomm is making between non-waiver of work product 

protection and the "common interest doctrine"- which are just tv.ro different ways of saying the same thing. See, e.g, 

Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 646 (E.D. Cal. 2014) ("The common interest 

doctrine is not a privilege in and of itself; rather, it constitutes an exception to the rule on waiver where 

conununications are disclosed to third patt ies.") Conunon interest agreements are relevant, but not necessary, to 

establish that a disclosure among plaintiffs pursuing similar claims against the same defendant (and who therefore 

share a common interest) is unlikely to increase the opp01tunities for their mutual opponent to obtain that 

inf01mation. The FTC did not "abandon" the common interest doctrine by arguing non-waiver. 16 The FTC produced its communications with third patties in response to earlier RFPs. The only responsive 

documents not already produced would be post-complaint communications with outside counsel for other plaintiffs. 

3 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 4 of 8
4

undertake the burden of logging post-complaint communications between Apple custodians and 

entities with whom Apple shares a common interest, because “the post-complaint 

communications, even if relevant... have marginal utility.” Dec. 20 Hrg. Tr. at 29.17

Communications among counsel are obviously less relevant than communications involving 

potential witnesses. Indeed, Qualcomm disclaimed any interest in communications involving 

Apple’s outside counsel for precisely this reason. Id. at 27 (Mr. Bornstein: “The only thing I 

would direct the court to is, to be clear, we’re asking not for ... Mr. Takashima’s correspondence 

or outside counsel. We’re looking just in the files of the individuals who are likely to be present 

presenting evidence.”). The FTC’s copy of its communications with Apple’s outside counsel is 

no more relevant to a disputed issue than Apple’s copy. 

Qualcomm’s current arguments are thus even less persuasive than its failed arguments in 

December. Qualcomm does not argue that the communications it seeks are relevant to a claim or 

defense, but instead notes that during the investigation, 

 that may affect the “credibility” of the FTC’s 

legal positions or its experts’ opinions. The FTC routinely seeks industry input when engaged 

in pre-complaint settlement negotiations, and such a document does not suggest bias.19 Neither 

the FTC nor its experts would be less credible if they were to pursue an argument or theory 

suggested by one of the industry participants that responded to an FTC request for input 

regarding a potential consent order. A legal argument or economic theory is sound or it is not; 

the person who suggests its application is irrelevant to its merit. 

Finally, Qualcomm repeatedly asserts that collecting and reviewing these documents 

would not be burdensome. But as Qualcomm itself informed the Court to justify its delay in 

providing its “refresh” collections of just two custodians, the burden of “collection and 

processing ... remains the same” even for smaller volumes. (D.E. 378). Similar processes are 

needed for the FTC to collect and review its emails, which would also require significant 

attorney time given the potentially privileged nature of the documents. Because the majority of 

the documents are concededly irrelevant, and others would also be privileged, Qualcomm’s 

requests are not proportional to the needs of the case.20

B. The substantive documents sought by Qualcomm would be work product 

The only communications Qualcomm argues are relevant—post-complaint discussions 

among counsel about legal and economic theories—would, by definition, have been prepared in 

anticipation of trial and protected from disclosure by the work product doctrine, as preserved by 

the common interest doctrine. It would be unduly burdensome to collect documents where the 

only result is likely to be a privilege log that identifies documents of marginal utility. 

 

17 Qualcomm’s reliance on the Court’s order regarding the informant’s privilege is misplaced. That decision simply 

held that a different privilege was overcome, it said nothing about whether post-complaint communications among 

outside counsel are important or relevant to any issue in dispute. 

18 The FTC does not understand why Qualcomm believes proof of the “but for” world would be affected in any way 

by post-complaint communications among counsel, rather than the underlying facts of the case. 

19 The FTC does not allege that any communication ‘transformed’ into work product upon the filing of its complaint, 

and produced the specific communication at issue. Moreover, the FTC entered common interest agreements with 

other plaintiffs after they filed their own complaints and after Qualcomm argued that discovery ought to be 

coordinated across the actions. While express common interest agreements are not necessary to preserve work 

product protection, the FTC has not withheld from its productions any communications that predate those 

agreements. As Qualcomm admits, none of the produced communications disclose work product. 

20 Qualcomm’s statement that the FTC has “located,” but not produced, documents is misleading. FTC staff has 

engaged in communications with counsel for other plaintiffs as a necessary part of discovery coordination. Any 

response to these RFPs, however, would require a dedicated collection, which has not been undertaken. 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 5 of 8
5

If plaintiffs shared documents disclosing their views about economic or legal theories, or 

about discovery strategy, that disclosure would not waive work product protection. See Ellis v. 

J.P. Morgan Chase & Co., No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681, at *15-

16 (N.D. Cal. Apr. 1, 2014) (correspondence sent by defendants’ attorney to other potential 

defendants protected by work product). “[T]he purpose of the work-product rule is not to protect 

the evidence from disclosure to the outside world but rather to protect it only from the 

knowledge of opposing counsel and his client.” Cal. Sportfishing, 299 F.R.D. at 645 (citing 

Wright, Miller, et al., 8 Fed. Prac. & Proc. Civ. § 2024 (3d ed.)). A disclosure among plaintiffs’ 

counsel would not “substantially increase the opportunities for potential adversaries to obtain the 

information.” Id.; see also Skynet Electronics Co. v. Flextronics Int’l, Ltd., No. 12-6317, 2013 

U.S. Dist. LEXIS 176372 at *3 (N.D. Cal. Dec. 16, 2013) (no waiver where disclosure of work 

product to third party did not make it substantially more likely defendants would discover it). 

Plaintiffs with active antitrust claims against Qualcomm share a common interest in 

proving those claims and are unlikely to disclose any shared work product to Qualcomm.21 Cal. 

Sportfishing, 299 F.R.D. at 647 (parties litigating similar issues against common adversary have 

reasonable basis to believe recipient will keep disclosed material confidential); United States v. 

Deloitte LLP, 610 F.3d 129, 141 (D.C. Cir. 2010) (“[R]easonable expectation of confidentiality 

may derive from common litigation interests.”); United States v. AT&T Co., 642 F.2d 1285, 1299 

(D.C. Cir. 1980) (“[W]ith common interests on a particular issue against a common adversary, 

the transferee is not at all likely to disclose the work product material to the adversary.”). Private 

plaintiffs and government entities share a common interest sufficient to maintain work product 

protection if they are parties to similar suits against a common defendant. See, e.g., AT&T, 642 

F.2d at 1300 (no work product waiver where private plaintiff and United States were 

“proceeding on overlapping antitrust issues against a common adversary,” and therefore “shared 

common interests in developing legal theories and analysis of documents on which to proceed on 

those issues”); Cal. Sportfishing, 299 F.R.D. at 647 (no work product waiver where private 

plaintiff and government were “pursuing...litigation based on a closely related set of facts” 

against a common defendant). The risk of disclosure to Qualcomm is particularly low here, 

where the FTC has entered common interest agreements with other plaintiffs. 

Qualcomm argues that communications with Apple’s counsel cannot be protected 

because the FTC is “adverse” to Apple. Even if Apple is a party to an agreement that violates 

Section 1 of the Sherman Act, however, it is entitled to sue Qualcomm for the anticompetitive 

effects of that agreement. See Perma Life Mufflers v. Int'l Parts Corp., 392 US 134 (1968) 

(plaintiff franchisees could sue their franchisor for Section 1 violations based on the agreements 

those same plaintiffs signed). Apple has in fact sued Qualcomm, alleging that the agreements 

were anticompetitive. The FTC and Apple share a common interest in efficiently pursuing 

coordinated discovery relating to those common allegations. There is no requirement that they 

advance identical legal theories, or share a complete unity of interests. See, e.g., Cal. 

Sportfishing, 299 F.R.D. at 647; Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 

U.S. Dist. LEXIS 36193, at *17 (N.D. Cal. Mar. 17, 2014). Indeed, a common interest “may 

apply where the parties’ interests are adverse in substantial respects.” Ellis, 2014 U.S. Dist. 

LEXIS 45681 at *19. Accordingly, disclosure of materials between counsel for the FTC and 

Apple would not waive any applicable work product protections. 

 

21 If parties share a common interest, that fact would be relevant to determining whether a disclosure among them 

increases an adversary’s opportunity to obtain the disclosed information. These are not distinct concepts or separate 

prongs in any test. 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 6 of 8
6

Dated: February 7, 2018 

 Respectfully submitted, 

KEKER, VAN NEST & PETERS LLP, 

/s/ Asim M. Bhansali 

Robert A. Van Nest 

Asim M. Bhansali 

Eugene M. Paige 

Gary A. Bornstein 

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

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 

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 

gholtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 7 of 8
7

FEDERAL TRADE COMMISSION, 

 /s/ Jennifer Milici 

Jennifer Milici 

Daniel Matheson 

J. Alexander Ansaldo 

Joseph R. Baker

Kenneth H. Merber

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

FILER’S ATTESTATION 

I, Asim M. Bhansali, am the ECF user whose Login and Password authorized the filing of this 

document. Under Civil L.R. 5-1(i)(3), I attest that counsel has concurred in this filing. 

DATED: February 7, 2018 /s/ Asim M. Bhansali

Asim M. Bhansali

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111 

Telephone: (415) 391-5400 

Email: abhansali@keker.com 

Case 5:17-cv-00220-LHK Document 545-4 Filed 02/07/18 Page 8 of 8