Qualcomm Incorporated Securities Litigation v. Qualcomm Incorporated

• Court: District Court, S.D. California
• Decided: January 10, 2020
• Docket: 3:17-cv-00121
• Status: Unknown

Opinion

9 UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA

12 IN RE QUALCOMM Case No. 17-cv-00121-BEN-MSB INCORPORATED SECURITIES 13 LITIGATION ORDER GRANTING NON-PARTIES 14 APPLE INC.; COMPAL ELECTRONICS, INC.; FIH MOBILE LTD.; HON HAI 15 PRECISION INDUSTRY CO., LTD.; PEGATRON CORPORATION; AND 16 WISTRON CORPORATION’S 17 ASSENTED-TO MOTION TO SUPPLEMENT THE PROTECTIVE 18 ORDER 19

21 WHEREAS Section 3.5 of the Protective Order in this action (ECF No. 78- 22 1) states that its provisions are without prejudice to the right of any party to seek 23 further or additional protection of any Discovery Material or to modify the 24 Protective Order; and, 25 WHEREAS Section 10.1 of the Protective Order states that its provisions 26 should not be construed as prohibiting a non-party from seeking additional 27 1 protections for its confidential materials; and 2 WHEREAS now before the Court is Non-Parties Apple Inc. (“Apple”), 3 Compal Electronics, Inc. (“Compal”), Hon Hai Precision Industry Co., Ltd. (“Hon 4 Hai”), FIH Mobile Ltd. (“FIH”), Pegatron Corporation (“Pegatron”), and Wistron 5 Corporation’s (“Wistron,” and collectively, the “CMs”) Assented-To Motion to 6 Supplement the Protective Order; 7 WHEREFORE, IT IS HEREBY ORDERED, that the terms of the 8 Protective Order apply to “APPLE PROTECTED MATERIAL” and “CM 9 PROTECTED MATERIAL” (as defined below), except as modified below: 10 1. DEFINITIONS 11 1.1. “APPLE MATERIAL”: any Disclosure or Discovery Materials 12 produced by, deemed produced by, reproduced on behalf of, or with the consent 13 of Apple, or obtained from Apple witnesses. For such material, the Apple will be 14 deemed a “Producing Party” as that term is used here and in the Protective Order. 15 1.2. “CM MATERIAL”: any Disclosure or Discovery Materials 16 originally produced by, deemed produced by, reproduced on behalf of, or with the 17 consent of Compal, Hon Hai, FIH, Pegatron, or Wistron, or obtained from 18 Compal, Hon Hai, FIH, Pegatron, or Wistron witnesses. For such material, the 19 respective CM will be deemed a “Producing Party” as that term is used here and 20 in the Protective Order. 21 1.3. “APPLE CONFIDENTIAL” Information or Items: any APPLE 22 MATERIAL previously designated by Apple as CONFIDENTIAL, APPLE 23 CONFIDENTIAL, SD CAL CONFIDENTIAL, or any variant of 24 “CONFIDENTIAL” in the FTC Litigation, Apple Litigation, CM Litigation, or ITC 25 Litigation. 26 1.4. “APPLE HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 27 Information or Items: any APPLE MATERIAL previously designated by Apple as 1 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, APPLE HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, SD CAL HIGHLY 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, CONFIDENTIAL BUSINESS 4 INFORMATION, or any variant of “HIGHLY CONFIDENTIAL” in the FTC 5 Litigation, Apple Litigation, CM Litigation, or ITC Litigation. 6 1.5. “APPLE PROTECTED MATERIAL”: any APPLE CONFIDENTIAL 7 or APPLE HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information 8 or Items. 9 1.6. “CM CONFIDENTIAL” Information or Items: any CM MATERIAL 10 previously designated by Compal, Hon Hai, FIH, Pegatron, or Wistron as 11 CONFIDENTIAL, COMPAL CONFIDENTIAL, FOXCONN CONFIDENTIAL, 12 PEGATRON CONFIDENTIAL, WISTRON CONFIDENTIAL, SD CAL 13 CONFIDENTIAL, or any variant of “CONFIDENTIAL” in the FTC Litigation, 14 Apple Litigation, CM Litigation, or ITC Litigation. 15 1.7. “CM HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 16 Information or Items: any CM MATERIAL previously designated as HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, COMPAL HIGHLY 18 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, FOXCONN HIGHLY 19 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, PEGATRON HIGHLY 20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, WISTRON HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or any variant of “HIGHLY 22 CONFIDENTIAL” in the FTC Litigation, Apple Litigation, CM Litigation, or ITC 23 Litigation. 24 1.8. “CM PROTECTED MATERIAL”: any CM CONFIDENTIAL or CM 25 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information or Items. 26 1.9. “Outside Counsel of Record”: attorneys who are not employees of a 27 Party to this Action but are retained to represent or advise a Party in connection with 1 this Action and have entered an appearance on behalf of that Party in this Action, as 2 well as other attorneys or support staff employed by the same firm as one of the 3 attorneys who has entered an appearance on behalf of one of the Parties in this 4 Action, to whom it is reasonably necessary to disclose the information for this 5 Action. 6 2. ACCESS TO AND USE OF PROTECTED MATERIAL 7 2.1. Confidential Material. Except as modified herein, APPLE 8 CONFIDENTIAL and CM CONFIDENTIAL Information and Items shall be treated 9 in accordance with the provision of the Protective Order that govern the treatment of 10 CONFIDENTIAL Information and Items. 11 2.2. Disclosure of APPLE CONFIDENTIAL or CM CONFIDENTIAL 12 Information or Items. Unless otherwise ordered by the Court or permitted in writing 13 by the Designating Party, a Receiving Party may disclose any Information or Item 14 designated APPLE CONFIDENTIAL or CM CONFIDENTIAL only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this action, 16 as well as employees of said Outside Counsel of Record, and any copying or clerical 17 litigation support services working at the direction of such Outside Counsel of 18 Record or employees thereof (1) who do not provide commercial advice (as opposed 19 to legal advice) to the Receiving Party and (2) to whom it is reasonably necessary to 20 disclose the information for this Action; 21 (b) five (5) or fewer House Counsel or other agreed-upon Party 22 representatives identified and agreed upon between the Party, on one hand, and 23 Apple (for APPLE CONFIDENTIAL Information or Items) or Compal, Hon Hai, 24 FIH, Pegatron, and/or Wistron (for CM CONFIDENTIAL Information or Items 25 respectively) on the other hand, prior to any disclosure, (1) to whom disclosure is 26 reasonably necessary for this Action, (2) who are not involved in competitive 27 decision- making (as opposed to legal advice), as defined by U.S. Steel v. United 1 States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party, or a 2 competitor of a Party, relating to the cellular industry, and (3) who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as their 4 support staff to whom disclosure is reasonably necessary, provided that such support 5 staff are not involved in competitive decision-making and have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (c) experts (as defined in the Protective Order) retained by the 8 Receiving Party to whom disclosure is reasonably necessary for this litigation 9 provided that (1) such Expert has signed the “Acknowledgment and Agreement to 10 Be Bound” (Exhibit A); (2) such Expert has no involvement in competitive 11 decision-making (as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 12 (Fed. Cir. 1984)) for the Receiving Party; (3) to the extent required by U.S. 13 government export control and economic sanctions laws, including the U.S. Export 14 Administration Regulations, such Expert accesses the Protected Material in the 15 United States only, and does not transport such Protected Material to or access them 16 from any foreign jurisdiction; and (4) no unresolved objections to such disclosure 17 exist after proper notice has been given to all Parties as set forth in Section 7.6 of the 18 Protective Order and Section 2.5 of this Supplemental Protective Order; 19 (d) professional jury or trial consultants, mock jurors, and 20 Professional Vendors to whom disclosure is reasonably necessary for this Action 21 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 22 A); 23 (e) the Court and its personnel; 24 (f) court reporters and their staff to whom disclosure is reasonably 25 necessary for this Action and who have signed the “Acknowledgment and 26 Agreement to Be Bound” (Exhibit A); 27 1 (g) during their testimony or in preparation for their testimony, 2 witnesses in this Action and their counsel to whom disclosure is reasonably 3 necessary and who have signed the “Acknowledgment and Agreement to Be 4 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by 5 the Court. Such disclosure may only occur for the purpose of assisting the 6 preparation or examination of the witness; 7 (h) the Designating Party or its employees, the author or recipient of 8 a document containing the information, or a custodian or other person who 9 otherwise possessed or knew the information; 10 (i) any mediator who is assigned to hear this Action, and his or her 11 staff, subject to the agreement to maintain confidentiality to the same degree as 12 required by the Protective Order; and 13 (j) any other person upon Order of the Court. 14 2.3. Highly Confidential Material. Except as modified herein, APPLE 15 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY and CM 16 CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information and Items shall be 17 treated in accordance with the provision of the Protective Order that govern the 18 treatment of HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY 19 Information and Items. 20 2.4. Disclosure of APPLE HIGHLY CONFIDENTIAL – ATTORNEYS’ 21 EYES ONLY or CM HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY 22 Information or Items. Unless otherwise ordered by the Court or permitted in writing 23 by the Designating Party, a Receiving Party may disclose any Information or Item 24 designated APPLE HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY or 25 CM HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY only to: 26 (a) the Receiving Party’s Outside Counsel of Record in this Action, 27 as well as employees of said Outside Counsel of Record, and any copying or clerical 1 litigation support services working at the direction of such Outside Counsel of 2 Record or employees thereof (1) who are not involved in competitive decision- 3 making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. 4 Cir. 1984), (as opposed to legal advice) on behalf of a Party or a competitor of a 5 Party relating to the cellular industry, and (2) to whom it is reasonably necessary to 6 disclose the information for this litigation; 7 (b) experts (as defined in the Protective Order) retained by the 8 Receiving Party to whom disclosure is reasonably necessary for this litigation 9 provided that (1) such Expert has signed the “Acknowledgment and Agreement to 10 Be Bound” (Exhibit A); (2) such Expert has no involvement in competitive 11 decision-making (as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 12 (Fed. Cir. 1984)) for the Receiving Party; (3) to the extent required by U.S. 13 government export control and economic sanctions laws, including the U.S. Export 14 Administration Regulations, such Expert accesses the Protected Material in the 15 United States only, and does not transport such Protected Material to or access them 16 from any foreign jurisdiction; and (4) no unresolved objections to such disclosure 17 exist after proper notice has been given to all Parties as set forth in Section 7.6 of the 18 Protective Order and Section 2.5 of this Supplemental Protective Order; 19 (c) professional jury or trial consultants, mock jurors, and 20 Professional Vendors to whom disclosure is reasonably necessary for this Action 21 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 22 A); 23 (d) the Court and its personnel; 24 (e) court reporters and their staff to whom disclosure is reasonably 25 necessary for this litigation and who have signed the “Acknowledgment and 26 Agreement to Be Bound” (Exhibit A) 27 1 (f) the Designating Party or its employees, the author or recipient of 2 a document containing the information, or a custodian or other person who 3 otherwise possessed or knew the information; 4 (g) any mediator who is assigned to hear this Action, and his or her 5 staff, subject to the agreement to maintain confidentiality to the same degree as 6 required by the Protective Order; and 7 (h) any other person upon Order of the Court. 8 2.5. Procedures for Approving or Objecting to Disclosures of Protected 9 Material to Experts. 10 (a) Unless otherwise ordered by the Court or agreed to in writing by 11 the Designating Party, prior to disclosing any APPLE PROTECTED MATERIAL 12 or CM PROTECTED MATERIAL to any Expert who is or has been, within five 13 years prior to the disclosure, employed or retained by Qualcomm, by a Qualcomm 14 customer or competitor, or who anticipates becoming employed or retained by 15 Qualcomm or a Qualcomm customer or competitor, or who is or has been, within 16 five years prior to the disclosure, employed or retained by Apple or a CM, by an 17 Apple or CM customer or competitor, or who anticipates becoming employed or 18 retained by Apple, a CM, or an Apple or CM customer or competitor (referenced 19 below as “Person”), the Party seeking to disclose such APPLE PROTECTED 20 MATERIAL or CM PROTECTED MATERIAL first must make a written request to 21 the Designating Party that: 22 (i) sets forth the full name of the Expert, the city and state of 23 his or her residence, and his or her country of citizenship, and 24 (ii) states the present employer and the title of the Person; 25 (iii) for any Expert, includes (a) an up-to-date curriculum vitae 26 of the Person (including the Person’s name and business/professional title and 27 business address); (b) any previous or current relationship (personal or professional) 1 with Qualcomm, any Qualcomm customer, licensee or competitor, Apple, any CM, 2 any Apple customer, licensee, or competitor, or any CM customer, licensee, or 3 competitor, including direct relationships and relationships through entities owned 4 or controlled by the Person, including but not limited to an identification of any 5 individual or entity with or for whom the Person is employed or to whom the person 6 provides consulting services relating to the design, development, operation, or 7 patenting of cellular baseband chipsets, cellular technology, cellular products or 8 cellular subscriber services, or relating to the acquisition of intellectual property 9 assets relating to cellular baseband chipsets, cellular technology, cellular products or 10 cellular subscriber services; (c) a list of other cases in which the Person has testified 11 (at trial or deposition) within the last five (5) years; (d) a list of all companies by 12 which the Person has been employed within the last four (4) years, the dates of the 13 employment, and a brief description of the subject matter of the employment; and 14 (e) an identification of all pending patent applications on which the Person is named 15 as an inventor, in which the Person has any ownership interest, or as to which the 16 Person has had or anticipates in the future any involvement in advising on, 17 consulting on, preparing, prosecuting, drafting, editing, amending, or otherwise 18 affecting the scope of the claims. 19 (b) Further, the Party seeking to disclose Protected Material of 20 another Producing Party shall provide to the other Parties and to the Producing Party 21 such other information regarding the Person’s professional activities reasonably 22 requested by the Producing Party for it to evaluate whether good cause exists to 23 object to the disclosure of Protected Material to the Person. During the pendency of 24 and for a period of two (2) years after the final resolution of these Actions, including 25 all appeals, the Party seeking to disclose Protected Material shall immediately 26 provide written notice of any change with respect to the Person’s involvement in the 27 design, development, operation or patenting of cellular baseband chipsets, cellular 1 technology, cellular products or cellular subscriber services, or the acquisition of 2 intellectual property assets relating to cellular baseband chipsets, cellular 3 technology, cellular products or cellular subscriber services. 4 (c) A Party that makes a request and provides the information 5 specified in Sections 2.5(a) and 2.5(b) may disclose the subject Protected Material to 6 the identified Person unless, within seven (7) days of delivering the request and 7 providing all the information required to be disclosed by this section, the Party 8 receives a written objection from the Designating Party. Any such objection must be 9 in writing and set forth good cause for the objection. For purposes of this section, 10 “good cause” shall include an objectively reasonable concern that the Person will, 11 advertently or inadvertently, use or disclose Protected Materials in a way or ways 12 that are inconsistent with the provisions contained in the Protective Order. In the 13 absence of an objection at the end of the seven (7) day period, the Person shall be 14 deemed approved under the Protective Order. There shall be no disclosure of 15 Protected Material to the Person prior to expiration of this seven (7) day period. 16 (d) A Party that receives a timely written objection must meet and 17 confer with the Designating Party (through direct voice-to-voice dialogue; other 18 forms of communication are not sufficient) to try to resolve the matter by agreement 19 within seven (7) days of the written objection. If no agreement is reached, the Party 20 seeking to make the disclosure to the Person may file a motion as provided in Civil 21 Local Rule 7.1 seeking permission from the Court to do so. Any such motion must 22 describe the circumstances with specificity, set forth in detail the reasons why the 23 disclosure to the Person is reasonably necessary, assess the risk of harm that the 24 disclosure would entail, and suggest any additional means that could be used to 25 reduce that risk. In addition, any such motion must be accompanied by a competent 26 declaration describing the Parties’ efforts to resolve the matter by agreement (i.e., 27 1 the extent and the content of the meet and confer discussions) and setting forth the 2 reasons advanced by the Designating Party for its refusal to approve the disclosure. 3 (e) In any such proceeding, the Party opposing disclosure to the 4 Person shall bear the burden of proving that the risk of harm that the disclosure 5 would entail (under the safeguards proposed) outweighs the Receiving Party’s need 6 to disclose the Protected Material to the relevant Person. 7 3. PROSECUTION/DEVELOPMENT BAR 8 3.1. Patent Prosecution Bar. Absent the written consent of the Producing 9 Party, any person who receives access to APPLE HIGHLY CONFIDENTIAL – 10 ATTORNEYS’ EYES ONLY or CM HIGHLY CONFIDENTIAL – ATTORNEYS’ 11 EYES ONLY information shall not be involved, directly or indirectly, in any of the 12 following activities: (i) advising on, consulting on, preparing, prosecuting, drafting, 13 editing, and/or amending of patent applications, specifications, claims, and/or 14 responses to office actions, or otherwise affecting the scope of claims in patents or 15 patent applications relating to the functionality, operation, and design of cellular 16 baseband chipsets, cellular technology, cellular products or cellular subscriber 17 services (generally or as described in any patent in suit), before any foreign or 18 domestic agency, including the United States Patent and Trademark Office; and (ii) 19 the acquisition of patents (including patent applications), or the rights to any such 20 patents or patent applications with the right to sublicense, relating to the 21 functionality, operation, and design of cellular baseband chipsets, cellular 22 technology, cellular products or cellular subscriber services. These prohibitions are 23 not intended to and shall not (i) preclude Counsel from participating in proceedings 24 on behalf of a Party challenging the validity of any patent or on behalf of a Party 25 responding to a challenge to the validity of a patent, or (ii) preclude Counsel from 26 participating directly or indirectly in reexamination, inter partes review, covered 27 business method review, or reissue proceedings on behalf of a patentee. These 1 prohibitions shall begin when the affected individual first receives access to APPLE 2 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CM HIGHLY 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY information materials until two 4 (2) years after the date the affected individual ceases to have access to the materials. 5 3.2. Development Bar. Absent the written consent of the Producing Party, 6 any Outside Counsel of Record or Expert who receives access to APPLE HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CM HIGHLY 8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY information shall not be 9 involved in performing hardware or software development work or product 10 development work directly or indirectly intended for commercial purposes relating 11 to the functionality, operation, and design of cellular baseband chipsets, cellular 12 technology, cellular products or cellular subscriber services, which is not publicly 13 known. These prohibitions shall begin when the affected individual first has access 14 to APPLE HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CM 15 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY information until two 16 (2) years after the date the affected individual ceases to have access to the materials. 17 4. USE IN FILINGS OR AT TRIAL OR HEARINGS 18 4.1. APPLE PROTECTED MATERIAL may not be disclosed, directly or 19 indirectly, in an open hearing, filing, or proceeding without prior written consent 20 from Apple. If the disclosing party wishes to obtain that consent from Apple, it 21 should notify Apple’s counsel of its intent to disclose such material at least seventy- 22 two (72) hours in advance of such disclosure, and describe the materials to be 23 disclosed with reasonable particularity. Otherwise, the disclosing party must first 24 request that the courtroom be sealed, and that only those authorized to review 25 APPLE PROTECTED MATERIAL remain during the presentation of such material, 26 or seek to file such material under seal. 27 1 4.2. CM PROTECTED MATERIAL may not be disclosed, directly or 2 |{indirectly, in an open hearing, filing, or proceeding without prior written consent 3 || from the applicable CM and any other third-party whose confidences are disclosed 4 || therein. If the disclosing party wishes to obtain that consent from the CM and, if 5 applicable, any other third party, it should notify the CM’s and, if applicable, other 6 || third-party’s counsel of its intent to disclose such material at least seventy-two (72) 7 ||hours in advance of such disclosure, and provide a copy of the materials to be 8 || disclosed. Otherwise, the disclosing party must first request that the courtroom be 9 || sealed, and that only those authorized to review CM PROTECTED MATERIAL 10 |}remain during the presentation of such material, or seek to file such material under 11 seal. 12 This Supplemental Protective Order incorporates by reference all provisions 13 the Protective Order entered by this Court on May 29, 2019 (Docket Nos. 78-1 & 14 79) to the extent not expressly referenced herein, except where there is a conflict 15 || between the terms of this Supplemental Protective Order and the May 29, 2019 16 || Protective Order, in which case this Supplemental Protective Order shall govern. 17 IT IS SO ORDERED. 18 Dated: January 9, 2020 19 - ? SAH * Honorable Michael S, Berg 21 United States Magistrate Judge 22 23 24 25 26 27 28 - 13 - CP ANTING DPARPTIES ADDIE ING COAUPAT ETECTPONT™CS FACEND 1751 □□□□□□□□□