Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1189 Page 1 of 15
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`
`David A. Nelson (Pro Hac Vice)
`(Ill. Bar No. 6209623)
`davenelson@quinnemanuel.com
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`500 West Madison St., Suite 2450
`Chicago, Illinois 60661
`Telephone: (312) 705-7400
`Facsimile: (312) 705-7401
`
`Karen P. Hewitt (SBN 145309)
`kphewitt@jonesday.com
`Randall E. Kay (SBN 149369)
`rekay@jonesday.com
`Kelly V. O’Donnell (SBN 257266)
`kodonnell@jonesday.com
`JONES DAY
`4655 Executive Drive, Suite 1500
`San Diego, California 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`
`Richard S. Zembek (Pro Hac Vice)
`richard.zembek@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`1301 McKinney, Suite 5100
`Houston, TX 77010
`Telephone: (713) 651-5283
`
`[Additional counsel identified on signature page]
`
`Attorneys for Plaintiff Qualcomm Incorporated
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`
`QUALCOMM INCORPORATED,,
`
`Plaintiff,
`
`vs.
`
`APPLE INCORPORATED,
`
`Defendant.
`
`
`
`CASE NO. 3:17-CV-02402-CAB-MDD
`
`JOINT MOTION FOR
`DETERMINATION OF
`DISCOVERY DISPUTES
`REGARDING APPLE’S
`RESPONSES AND OBJECTIONS
`TO QUALCOMM’S
`INTERROGATORY NO. 6
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1190 Page 2 of 15
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`JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE
`Pursuant to the provisions of this Court’s Civil Pretrial Procedures regarding
`discovery disputes, Qualcomm Incorporated (“Qualcomm”) and Apple Inc.
`(“Apple”) submit this Joint Motion for Determination of Discovery Disputes
`concerning certain of Apple’s responses and objections to Qualcomm’s First Set of
`Interrogatories, served on March 9 and May 9, 2018. Given that only one
`interrogatory response is at issue in this submission, the Parties are not submitting a
`separate memorandum of points and authorities. Concurrently with this Joint
`Motion, Qualcomm is also filing a declaration regarding compliance with the
`Court’s meet and confer requirements.
`This Court extended the deadline to file a joint motion on this set of discovery
`to June 29, 2018. (Dkt. No. 105, 120.)
`I.
`INTERROGATORY NO. 6 REQUESTING BASIS FOR LICENSE
`DEFENSE
`A. Qualcomm’s Introduction
`Qualcomm seeks foundational discovery regarding Apple’s allegation that the
`Asserted Patents are licensed. In response to Qualcomm’s discovery requests,
`Apple refuses to provide clear positions regarding the bases for the licensing and
`exhaustion defenses plead in its Complaint, even though Apple has the necessary
`information in its possession, custody and control. Apple’s failure to appropriately
`respond to Qualcomm’s interrogatory is impeding the progress of this case.
`
`INTERROGATORY NO. 6:
`Explain in detail all factual and legal bases for any contention by You that
`any of the Accused Products are subject to any license(s) to the Qualcomm Asserted
`Patents, including by identifying (i) each such license and the parties thereto; (ii)
`each Qualcomm Asserted Patent you contend is affected by the license; (iii) the
`Accused Product(s) or the Component of the Accused Products You contend are
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1191 Page 3 of 15
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`covered by each license; and (iv) the period of time during which You contend each
`license covered each Accused Product, and by explaining how each license covers
`each Accused Products; and identify all evidence you contend supports your
`contention.
`
`RESPONSE TO INTERROGATORY NO. 6:
`Apple incorporates its General Objections above as if set forth fully herein.
`Apple objects to this Interrogatory to the extent that it seeks identification of “all
`factual and legal bases” and “all evidence” on the grounds of over breadth, undue
`burden, and expense. Apple further objects to this Interrogatory to the extent it calls
`for information that is protected by the attorney-client privilege, the attorney work
`product doctrine, the common interest privilege, or any other applicable privilege or
`immunity against disclosure. Apple objects to this Interrogatory to the extent that it
`requires a legal conclusion to provide the information that is sought. Apple objects
`to this Interrogatory to the extent that it is cumulative and/or duplicative of other
`Interrogatories contained herein.
`Subject to and without waiving the foregoing specific objections and General
`Objections, Apple responds as follows:
`Apple directs Qualcomm to the transcript of the parties’ February 7, 2018
`Case Management Conference, in which Qualcomm’s counsel states that
`
`Apple further directs Qualcomm to Q2017MDL1_03114785-
`Q2017MDL1_03114843. Qualcomm produced these documents on March 2, 2018.
`Apple is licensed to the extent any agreement between Qualcomm and an
`Apple contract manufacturer extends to Apple or any accused products. At the
`parties’ February 7, 2018 Case Management Conference, Qualcomm stated that
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`In that regard, on March 3, 2018, pursuant to Court Order,
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` Additionally, the ’132 patent claims on its
`face the benefit of a provisional application filed prior to
` and
`Qualcomm itself contends that the ’132 patent is entitled to a priority date earlier
`. See Qualcomm’s P.R. 3-1 Disclosures at 14-15.1
`than
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`Moreover,
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`1 Apple admits nothing with regard to Qualcomm’s positions on priority dates
`of the Asserted Patents and reserves all rights to contest Qualcomm’s position on
`priority dates of the Asserted Patents to the extent that one or more parent
`applications to which Qualcomm’s is attempting to claim priority lacks sufficient
`disclosure to support any asserted claim.
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1193 Page 5 of 15
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` Apple’s exhaustion
`defense is consistent with the U.S. Supreme Court’s landmark decision in
`Impression Products, Inc. v. Lexmark International, Inc., holding inter alia, that a
`patent holder may demand only “one reward” for its patented products, and when it
`has secured the reward for its invention, it may not, under the patent laws, further
`restrict the use or enjoyment of the item.
`Investigation and discovery are ongoing in this case. The objections and
`responses are based upon information currently available to Apple, and are made
`without prejudice to Apple’s rights to use or rely on any subsequently discovered
`information. Apple specifically reserves the right to supplement, amend, modify,
`and/or correct these responses during discovery.
`
`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 6:
`Apple incorporates its General and Specific Objections as if set forth fully
`herein. Subject to and without waiving the foregoing specific objections and
`General Objections, Apple responds further as follows:
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`Investigation and discovery are ongoing in this case. The objections and
`responses are based upon information currently available to Apple, and are made
`without prejudice to Apple’s rights to use or rely on any subsequently discovered
`information. Apple specifically reserves the right to supplement, amend, modify,
`and/or correct these responses during discovery.
`
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`B. Qualcomm’s Statement Of Reasons Apple Should Be Compelled
`Supplement Its Response To Interrogatory No. 6
`
`Interrogatory No. 6 seeks Apple’s legal contentions and factual bases for its
`alleged licensing or exhaustion defense.
`
` In compliance with the Court’s guidance during the February 7,
`2018, Case Management Conference, on March 2, 2018, Qualcomm produced all
`relevant SULAs. See Feb. 7, 2018 CMC Tr. at 9:5-10. Then, on March 12, 2018,
`Qualcomm served responses to Apple’s Interrogatories specifically setting forth
`Qualcomm’s views as to relevant portions of those SULA’s and which Asserted
`Patents, if any, are within the patents licensed under a particular SULA.
`That a patent is within a particular SULA does not grant Apple any rights
`absent a factual predicate linking an accused product to a SULA granting rights for a
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`particular patent. Yet, almost four months after Qualcomm provided Apple with the
`SULAs, Apple has failed to allege any relevant facts or identify a single piece of
`evidence. Apple’s last supplement does nothing but generally reference
`
`Apple fails to identify specific products, provide any details of any purchase,
`or provide any explanation, let alone factual support, that a single unit of any
`Accused Product purchased from
` is currently subject to this U.S.
`action. While fact discovery is ongoing, Apple has had nearly 4 months to review
`the relevant agreements and its own product sales information to provide an
`explanation for its licensing defense in response to Interrogatory No. 6. Apple
`should be compelled to state its factual basis for any license defense and identify
`relevant evidence.
`Apple contends that its response to this interrogatory is contingent on
`Qualcomm’s production of sales information that Qualcomm received from Apple’s
`suppliers. Apple’s position fails to consider that Apple bears the burden of proving
`its licensing defense and that the sales information in question is for Apple’s own
`products. Thus Apple is a more reliable source for this information than hearsay
`provided to Qualcomm by one of Apple’s CMs. Apple is obligated to provide its
`contentions and identify their factual bases in response to the interrogatory. See,
`e.g., Apple Inc. v. Wi-LAN Inc., Case No. 14CV2235-DMS (BLM), 2018 WL
`733740, at *3 (S.D. Cal. Feb. 6, 2018) (granting plaintiff’s motion to compel
`supplemental response to contention interrogatory, because “the burden of
`ascertaining [contentions] from the documents is not the same for [plaintiff] and
`[defendant]”); Mancini v. Ins. Corp. of New York, No. CIV. 07CV1750-L NLS,
`2009 WL 1765295, at *3 (S.D. Cal. June 18, 2009) (granting motion to compel
`contention interrogatory “[b]ecause Plaintiffs are more familiar with their
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1196 Page 8 of 15
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`contentions than [defendant] could be.”). Apple should be compelled to provide a
`complete response to Qualcomm’s interrogatory stating the bases for its defense.
`C. Apple’s Statement Of Reasons Regarding Interrogatory No. 6
`Qualcomm's motion should be denied because (1) Apple has already provided
`a comprehensive response, particularly for this early stage of discovery and (2)
`Apple has agreed to timely supplement this interrogatory on a rolling basis as
`additional facts and evidence (in both Qualcomm’s and Apple’s possession) are
`discovered.
`Apple's initial and supplemental response to Interrogatory No. 6 identifies and
`describes the legal and factual bases for Apple’s license and exhaustion defenses.
`Apple’s response identifies the specific license agreements
`
`including citations to
`specific sections and provisions—on which Apple relies. For example, Apple
`directs Qualcomm to the definition of
`
` Apple’s response additionally provides a
`detailed explanation of the legal theories underlying Apple’s defenses. Apple has
`also cited controlling law (Impression Products, Inc. v. Lexmark International, Inc.)
`in support of its theory that, to the extent that Qualcomm alleges that products
`manufactured and sold
`
`exhausted
`any associated Qualcomm Asserted Patent rights against Apple. Apple’s response
`amply satisfies its discovery obligations, particularly in view of the early stage of
`discovery in this case. See Gen-Probe Inc. v. Becton, Dickinson & Co., No.
`09CV2319 BEN NLS, 2010 WL 2011526, at *1-*2 (S.D. Cal. May 19, 2010)
`(denying motion to compel where an interrogatory requested “with particularity” all
`facts and documents in support of a certain affirmative defense, in part because “the
`parties have not yet completed substantial discovery, and [the responding party]
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1197 Page 9 of 15
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`does not object to responding further to this contention interrogatory as discovery
`progresses”).
`Qualcomm’s cited authority is easily distinguished. In Apple Inc. v. Wi-Lan
`Inc., the court compelled a response to an interrogatory seeking detailed contentions
`regarding the legal and factual bases for the patentee’s contention that its identified
`products practiced the claims of the asserted patents. See Case No. 14CV2235-DMS
`(BLM), 2018 WL 733740, at *2-*3 (S.D. Cal. Feb. 6, 2018). The patentee had cited
`documents pursuant to Federal Rule of Civil Procedure 33(d) and argued that it
`should not have to supplement its response. Id. The court found that the burden of
`ascertaining the answer to a contention interrogatory was not substantially the same
`for both parties. Id. Qualcomm also cites Mancini v. Insurance. Corp. of New York,
`which likewise found that the use of Rule 33(d) in response to a contention
`interrogatory was inappropriate because the burden was not equal to Plaintiffs and
`Defendants. See No. CIV. 07CV1750-L NLS, 2009 WL 1765295, at *3 (S.D. Cal.
`June 18, 2009). Here, Apple does not rely on Rule 33(d) and has not refused to
`provide a supplemental response as discovery progresses.
`Apple has repeatedly conveyed that it will continue to supplement this
`interrogatory response with additional factual information including, for example,
`more information concerning
`
`Qualcomm itself possesses most, if not all, of such factual information.
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` Qualcomm has not responded to
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1198 Page 10 of 15
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`Apple’s request. Apple has offered to further supplement its interrogatory response
`within 10 business days of Qualcomm producing the
`
` Apple is not withholding documents or evidence
`related to Qualcomm’s request. Apple continues its investigation to gather its own
`relevant documents regarding this shipping information that should be largely
`that
`redundant of the information contained in Qualcomm’s own
`Qualcomm has failed to produce, and incorporate them in a timely supplemental
`response to this interrogatory.
`Importantly, in response to a parallel interrogatory on the same issue,
`Qualcomm admits that the
`
` but Qualcomm has thus far
`refrained from providing any substantive content on whether Apple is
`consequently licensed, or if the patents are consequently exhausted.2 That
`Qualcomm is moving to compel even more than the substantial information that
`Apple has already provided, with nearly seven (7) months of discovery ahead, and
`while it stonewalls Apple’s parallel request for information that would purportedly
`explain its basis for bringing this suit, undermines Qualcomm’s motion even further.
`
`
`
`2 Qualcomm’s response to Interrogatory No. 13 is not directly the subject of the
`present motion. Apple is drafting its motion to compel Qualcomm’s response to its
`Interrogatory No. 13, which must be filed by July 30 (Dkt. 124). Even so,
`Qualcomm’s failure to provide any response on the same issue in a parallel
`interrogatory cuts against its position that Apple should be compelled to supplement
`its substantial response at this stage of the case.
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`JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE6
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1199 Page 11 of 15
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
`
`Respectfully Submitted,
`
`
`
`By /s/ Michelle Ann Clark
`JONES DAY
`Karen P. Hewitt (SBN 145309)
`kphewitt@jonesday.com
`Randall E. Kay (SBN 149369)
`rekay@jonesday.com
`John D. Kinton (SBN 203250)
`jkinton@jonesday.com
`4655 Executive Drive, Suite 1500
`San Diego, California 92121
`Telephone: (858) 314-1200
`Facsimile: (858) 345-3178
`
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`David A. Nelson (pro hac vice)
`(Ill. Bar No. 6209623)
`davenelson@quinnemanuel.com
`500 West Madison St., Suite 2450
`Chicago, Illinois 60661
`Telephone: (312) 705-7400
`Facsimile: (312) 705-7401
`
`Sean S. Pak (SBN 219032)
`seanpak@quinnemanuel.com
`Michael D. Powell (SBN 202850)
`mikepowell@quinnemanuel.com
`Michelle Ann Clark (SBN 243777)
`michelleclark@quinnemanuel.com
`Andrew M. Holmes (SBN 260475)
`drewholmes@quinnemanuel.com
`50 California Street, 22nd Floor
`San Francisco, California 94111
`Telephone: (415) 875-6600
`Facsimile: (415) 857-6700
`
`Patrick D. Curran (SBN 241630)
`patrickcurran@quinnemanuel.com
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`Telephone: (212) 849-7000
`Facsimile: (212) 849-7100
`
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`JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE
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`DATED: June 29, 2018
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1200 Page 12 of 15
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
`
`Yury Kapgan (SBN 218366)
`yurykapgan@quinnemanuel.com
`Scott Watson (SBN 219147)
`scottwatson@quinnemanuel.com
`Michael Louis Fazio (SBN 228601)
`michaelfazio@quinnemanuel.com
`Joseph Sarles (SBN 254750)
`josephsarles@quinnemanuel.com
`Valerie A. Lozano (SBN 260020)
`valerielozano@quinnemanuel.com
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017
`Telephone: 213-443-3000
`Facsimile: 213-443-3100
`
`NORTON ROSE FULBRIGHT US LLP
`Richard S. Zembek (Pro Hac Vice)
`richard.zembek@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`1301 McKinney, Suite 5100
`Houston, TX 77010
`Telephone: (713) 651-5283
`
`
`Attorneys for Plaintiff and
`Counterclaim Defendant
`QUALCOMM INCORPORATED
`
`Respectfully Submitted,
`
`
`
`
`
`By /s/ Noah C. Graubart
`Juanita R. Brooks, SBN 75934,
`brooks@fr.com
`Jason W. Wolff, SBN 215819,
`wolff@fr.com
`Seth M. Sproul, SBN 217711,
`sproul@fr.com
`Michael A. Amon, SBN 226221,
`amon@fr.com
`Fish & Richardson P.C.
`12390 El Camino Real
`San Diego, CA 92130
`Phone: 858-678-5070 / Fax: 858-678-5099
`
` Ruffin B. Cordell, DC Bar No. 445801,
`
`
`
`
`
`
`
`
`
`
`
`DATED: June 29, 2018
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`JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1201 Page 13 of 15
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
`
`
`
`Admitted pro hac vice, cordell@fr.com
`Lauren A. Degnan, DC Bar No. 452421,
`Admitted pro hac vice, degnan@fr.com
`Fish & Richardson P.C.
`The McPherson Building
`901 15th Street, N.W., 7th Floor
`Washington, D.C. 20005
`Phone: 202-783-5070 / Fax: 202-783-2331
`
` Benjamin C. Elacqua, TX Bar No.
`24055443
`Admitted pro hac vice, elacqua@fr.com
`Fish & Richardson P.C.
`1221 McKinney Street, Suite 2800
`Houston, TX 77010
`Phone: 713-654-5300 / Fax: 713-652-0109
`
`Thad Kodish, GA Bar No. 427603
`appearing pro hac vice
`kodish@fr.com
`Erin Alper, GA Bar No. 940408
`appearing pro hac vice
`alper@fr.com
`Jacqueline Tio, GA Bar No. 940376
`appearing pro hac vice
`tio@fr.com
`Fish & Richardson P.C.
`1180 Peachtree Street N.E., 21st floor
`Atlanta, GA 30309
`Phone: 404-892-5005/ Fax: 404-892-5002
`
` Betty H. Chen, SBN 290588
`bchen@fr.com
`Fish & Richardson P.C.
`500 Arguello Street, Suite 500
`Redwood City, CA 94063
`Phone: 650-893-5070/ Fax: 650-893-5071
`
` Attorneys for Defendant and Counterclaim
`Plaintiff APPLE INC.
`
`
`
`
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1202 Page 14 of 15
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`FILER’S ATTESTATION
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`Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative
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`Policies and Procedures of the United States District Court of the Southern District
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`of California, I certify that authorization for the filing of this document has been
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`obtained from the other signatory shown above and that said signatory has
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`authorized placement of his electronic signature on this document.
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`Executed on June 29, 2018.
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`Case 3:17-cv-02402-CAB-MDD Document 138 Filed 06/29/18 PageID.1203 Page 15 of 15
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and
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`foregoing document has been served on June 29, 2018 to all counsel of record who
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`are deemed to have consented to electronic service via the Court’s CM/ECF system
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`per Civil Local Rule 5.4. Any other counsel of record will be served by electronic
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`mail, facsimile and/or overnight delivery.
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`Executed on June 29, 2018 at San Francisco, California.
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`/s/ Michelle Ann Clark
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