Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 1 of 8
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`
`
`Amanda Tessar (admitted pro hac vice)
`ATessar@perkinscoie.com
`PERKINS COIE LLP
`1900 Sixteenth Street, Suite 1400
`Denver, CO 80202-5255
`Telephone: 303.291.2300
`Facsimile: 303.291.2400
`
`Sarah E. Stahnke, California Bar #264838
`SStahnke@perkinscoie.com
`PERKINS COIE LLP
`3150 Porter Drive
`Palo Alto, CA 94304-1212
`Telephone: 650.838.4489
`Facsimile: 650.838.4350
`
`ATTORNEYS FOR NON-PARTY
`BROADCOM CORPORATION
`
`
`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
`JURY TRIAL DEMANDED
`NON-PARTY BROADCOM’S
`ADMINISTRATIVE MOTION TO SEAL:
`(1) TRIAL EXHIBITS QX1005 AND
`QX1009; AND (2) LIMITED PORTIONS
`OF THE ROBERT RANGO DEPOSITION
`TESTIMONY TO BE PLAYED AT TRIAL
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`5:17-CV-00220-LHK-NMC
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`NON-PARTY BROADCOM’S MOTION TO SEAL
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 2 of 8
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`Pursuant to Civil Local Rule 7-11, Non-Party Broadcom Corporation (“Broadcom”)
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`respectfully submits this Administrative Motion to Seal trial exhibits QX1005 and QX1009, as
`well as limited portions of Broadcom’s former Executive Vice President and General Manager’s
`(Robert Rango’s) deposition testimony. Broadcom understands that Qualcomm intends to play
`these deposition excerpts at trial on Tuesday, January 22, 2019.
`
`By way of background, Broadcom is a non-party to this case, but in response to broad
`subpoenas from the FTC and Qualcomm, Broadcom produced hundreds of thousands of pages of
`documents in this matter. As explained below and in the attached Declaration of Patrick
`Henderson, certain materials that the parties seek to use and introduce at trial contain
`competitively-sensitive business information. Broadcom risks harm to its business and customer
`relationships if this information were to be made public.
`
`Qualcomm does not take a position with respect to this motion. The FTC stated that it
`“does not agree that this testimony meets the Court’s standard for sealing documents and
`testimony.”
`I.
`LEGAL STANDARD
`
`Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court
`documents for the protection of “a trade secret or other confidential research, development, or
`commercial information.” Fed. R. Civ. P. 26(c)(1)(G). In addition, the United States Supreme
`Court has acknowledged that sealing may be justified to prevent judicial documents from being
`used “as sources of business information that might harm a litigant’s competitive standing.”
`Nixon v. Warner Comm’n, Inc., 435 U.S. 589, 598 (1978); In re Elec. Arts, Inc., 298 Fed.
`Appx. 568, 569 (9th Cir. 2008) (unpublished) (quoting Nixon, 435 U.S. at 598).
`Civil Local Rule 79-5 provides that documents, or portions thereof, may be sealed if a
`party “establishes that the documents, or portions thereof, are privileged, protectable as a trade
`secret or otherwise entitled to protection under the law.” Civ. L.R. 79-5(b). A party seeking to
`seal a document must submit “narrowly tailor[ed]” requests and overcome the “strong
`presumption in favor of access” that applies to court documents other than those that are
`traditionally kept secret. Ctr. For Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th
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`NON-PARTY BROADCOM’S MOTION TO SEAL
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 3 of 8
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`Cir. 2016). For filings that are “more than tangentially related to the underlying cause of action,”
`the declarations must set forth the “compelling reasons supported by specific factual findings”
`which “outweigh the general history of access and the public policies favoring disclosure,”
`Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006) (citation
`omitted).
`Counsel for the FTC has informed Broadcom that the Court has ordered that the
`“compelling reasons” standard applies to information sought to be sealed at trial. Further, counsel
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`for the FTC also stated that, at a pretrial conference on December 13, 2018, “Judge Koh []
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`acknowledged that some portion of the pre-recorded deposition testimony to be played at trial may
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`require closed sessions” and that the Court also “indicate[d] a willingness to have the parties shield
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`from public view particularly sensitive commercial information meeting a ‘compelling reason’
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`sealing standard, by turning off public monitors and formulating examination questions so as to avoid
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`public disclosure.” See Dckt. 1072 at 7, 10.
`II.
`FACTUAL BACKGROUND
`
`Non-party Broadcom Corporation is an American semiconductor company that makes
`products for the wireless and broadband communication industry. Henderson Decl. (Dckt. 1120-
`1), at ¶4. Broadcom competes directly with Qualcomm in many fields. Id. As relevant to this
`case, Broadcom used to have a baseband processor business, but it exited that business in 2014.
`Id. Although Broadcom is no longer in the baseband processor business, Broadcom has
`relationships with many of its baseband processor customers for other product lines and
`continues to service them today in other technology fields. Id. Broadcom’s customer
`relationships and dealings with these customers are of the utmost importance to Broadcom. Id.
`
`In connection with this case, both the FTC and Qualcomm served subpoenas on
`Broadcom seeking a wide variety of information about Broadcom’s business in 2014, including
`but not limited to the baseband processor business. Broadcom cooperated with the subpoenas
`and ultimately produced hundreds of thousands of pages of documents to the FTC and
`Qualcomm. These documents included highly-sensitive materials, including Board of Directors
`minutes, Board of Directors presentations, financial information, and customers
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`NON-PARTY BROADCOM’S MOTION TO SEAL
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 4 of 8
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`communications. Broadcom also made its former CEO, Scott McGregor, and its former
`Executive Vice President and General Manager, Robert Rango, available for depositions. In
`their depositions, Mr. McGregor and Mr. Rango discussed many of these highly-sensitive topics
`and materials.
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`Consistent with the mandate of the Court’s Pretrial Conference Order dated December
`13, 2018 (Dckt. 1003), the information that Broadcom seeks to seal through this motion is:
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`Item
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`QX1005
`
`Whose
`Confidential
`Information
`Broadcom
`
`Where
`Information
`Appears
`Entirety
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`QX1009
`
`Broadcom
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`Entirety
`
`Deposition
`Transcript of
`Robert Rango
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`Broadcom
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`68:1-19
`68: 22-24
`69:11-70:15
`70:18-24
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`Standard
`For Sealing
`
`Declaration
`Support
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`Compelling
`reasons
`
`Compelling
`Reasons
`
`Compelling
`reasons
`
`Attached
`Henderson
`Declaration, ¶4
`Attached
`Henderson
`Declaration, ¶5
`Attached
`Henderson
`Declaration, ¶6
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`For the Court’s convenience, QX1005 is attached as Exhibit D, QX1009 is attached as
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`Exhibit E, and the relevant deposition testimony is attached as Exhibit F to Mr. Henderson’s
`declaration, submitted concurrently herewith.
`III. ARGUMENT
`
`Qualcomm has indicated it intends to introduce QX1005, QX1009, and the videotaped
`testimony of many portions of the deposition transcript of Mr. Rango (Broadcom’s former
`Executive Vice President and General Manager) at trial on Tuesday, January 22nd. Accordingly,
`Broadcom respectfully moves the Court to keep sealed those exhibits and specific, limited
`portions of that deposition testimony of Mr. Rango that Qualcomm intends to play. With this
`motion, Broadcom provides a declaration from Patrick Henderson of Broadcom to support its
`limited request to seal.
`
`As discussed in detail below and in Mr. Henderson’s declaration, the exhibits and
`testimony contain Broadcom’s confidential and sensitive business information, including
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`NON-PARTY BROADCOM’S MOTION TO SEAL
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 5 of 8
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`customer communications and strategy, which are not publicly known and are maintained in
`confidence by Broadcom. It is important to bear in mind that the customer involved is one of
`Broadcom’s largest and most important customers, who Broadcom works with today for multiple
`product lines. If the sensitive information that is subject to this motion were released to the
`public, moreover, Broadcom’s competitors could gain insight into Broadcom’s internal business
`operations and strategy, which could hinder Broadcom’s ability to compete in the marketplace.
`The excerpts that Broadcom seeks to seal are only a portion of what Qualcomm indicates that it
`intends to present and are narrowly limited to those that would cause Broadcom or its customer
`harm.
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`QX1005
`Broadcom respectfully requests that the Court seal exhibit QX1005. QX1005 is an email
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`chain between Robert Rango, Scott McGregor (Broadcom’s CEO), Patrick Henderson
`(Broadcom’s declarant and then the Senior VP of Americas Sales), and other senior management
`at Broadcom about a conversation with a key Broadcom customer. Henderson Decl. ¶4. The
`email discusses the customer’s views of Broadcom’s strengths and weaknesses and how
`Broadcom compares to its competitors. Id. This information could be harmful to Broadcom if
`publicly disclosed. Id.
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`This Court regularly seals this kind of non-public customer information that could be
`used to the disclosing party’s competitive disadvantage. See H.Q. Milton, Inc. v. Webster, 17-
`CV-06598-PJH, 2017 WL 5625929, at *1 n.1 (N.D. Cal. Nov. 22, 2017) (granting motion to seal
`“trade secret information, including customer names or pricing information”); Lawson v.
`Grubhub, Inc., 15-CV-05128-JSC, 2017 WL 2951608, at *9 (N.D. Cal. July 10, 2017)
`(“customer usage information kept confidential by a company that could be used to the
`company’s competitive disadvantage” may present compelling reasons to seal) (citing Apple Inc.
`v. Samsung Elecs. Co., 727 F.3d 1214, 1226 (Fed. Cir. 2013)); FTC v. DirecTV, Inc., 15-CV-
`01129-HSG, 2016 WL 5339797, at *2 (N.D. Cal. Sept. 23, 2016) (granting motion to seal
`documents that “contain sensitive business information regarding customer feedback”);
`Johnstech Int’l Corp. v. JF Microtechnology SDN BHD, 14-CV-02864-JD, 2016 WL 4091388,
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`NON-PARTY BROADCOM’S MOTION TO SEAL
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 6 of 8
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`at *2 (N.D. Cal. Aug. 2, 2016) (granting motion to seal “product-specific customer data,”
`information that “identifies customers targeted by [Plaintiff]”); Dynetix Design Sols. Inc. v.
`Synopsys Inc., C 11-CV-05973 PSG, 2013 WL 1366046, at *1 (N.D. Cal. Apr. 3, 2013) (granting
`motion to seal “documents [that] contain customer information and are kept highly
`confidential”).
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`QX1009
`QX1009 is an email chain between Robert Rango and Eric Brandt (Broadcom’s former
`
`EVP and CFO) about Broadcom’s internal baseband chip development status and its impact on
`specific customer relationships. Henderson Decl. ¶5. The email includes an assessment of
`Broadcom’s decisions regarding investment in certain products lines and how those decisions
`impacted sales to three identified Broadcom customers. Id. Those three customers are still
`important customers to Broadcom today. Id. This information could be harmful to Broadcom if
`publicly disclosed. Id. Accordingly, the information in this exhibit should be sealed to protect
`this competitive business information. See H.Q. Milton, Inc., 2017 WL 5625929, at *1 n.1;
`Lawson, 2017 WL 2951608, at *9; FTC v. DirecTV, Inc., 2016 WL 5339797, at *2; Johnstech,
`2016 WL 4091388, at *2; Dynetix Design Sols. Inc., 2013 WL 1366046, at *1.
`Rango Transcript Excerpts at 68:1-19; 68: 22-24; 69:11-70:15; 70:18-24
`This testimony from Mr. Rango discusses and elaborates upon the information contained
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`in QX1005, which is confidential for the reasons explained above. It contains discussion about
`Broadcom’s customer’s view of Broadcom’s abilities, the development of Broadcom’s products,
`the schedule for Broadcom’s production of certain products, and specific features of Broadcom’s
`chipsets. Henderson Decl. ¶6. Broadcom’s competitors could use this information to harm
`Broadcom if it were publicly disclosed. Id. This information should therefore also be sealed.
`See H.Q. Milton, Inc., 2017 WL 5625929, at *1 n.1; Lawson, 2017 WL 2951608, at *9; FTC v.
`DirecTV, Inc., 2016 WL 5339797, at *2; Johnstech, 2016 WL 4091388, at *2; Dynetix Design
`Sols. Inc., 2013 WL 1366046, at *1.
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 7 of 8
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`IV. CONCLUSION
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`For these reasons, Broadcom respectfully requests that the Court seal the information
`described in the chart above.
`
`Dated: January 18, 2019
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`
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`
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`Respectfully submitted,
`
` /s/Amanda Tessar_________
`Amanda Tessar (admitted pro hac vice)
`ATessar@perkinscoie.com
`PERKINS COIE LLP
`1900 Sixteenth Street, Suite 1400
`Denver, CO 80202-5255
`Telephone: 303.291.2357
`Facsimile: 303.291.2457
`
`Sarah E. Stahnke, California Bar #264838
`SStahnke@perkinscoie.com
`PERKINS COIE LLP
`3150 Porter Drive
`Palo Alto, CA 94304-1212
`Telephone: 650.838.4489
`Facsimile: 650.838.4350
`
`ATTORNEYS FOR NON-PARTY
`BROADCOM CORPORATION
`
`NON-PARTY BROADCOM’S MOTION TO SEAL
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`Case 5:17-cv-00220-LHK Document 1359 Filed 01/18/19 Page 8 of 8
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`PROOF OF SERVICE
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`I, Kate Smith, declare:
`I am a citizen of the United States and employed in Santa Clara County, California. I am
`over the age of eighteen years and not a party to the within-entitled action. My business address
`is 3150 Porter Drive, Palo Alto, California 94304-1212.
`On January 18, 2019, I served a true and correct unredacted copies of Exhibits D, E, and
`F to Non-Party Broadcom’s Motion to Seal by electronically mailing it to the following
`addresses:
`Kenneth Hugh Merber
`Federal Trade Commission
`600 Pennsylvania Avenue, N.W.
`Washington, DC 20580
`202-326-3551
`Fax: 202-326-3496
`
`Counsel for Plaintiff
`Federal Trade Commission
`
`Geoffrey Holtz
`Morgan Lewis & Brockius LLP
`101 Park Avenue
`New York, NY 10178-0061
`
`Counsel for Defendant
`Qualcomm Incorporated
`
`kmerber@ftc.gov
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`
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`gholtz@morganlewis.com
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`I declare under penalty of perjury under the laws of the United States of America that the
`above is true and correct.
`Executed on January 18, 2019, at Palo Alto, California.
`
`
`
`/s/ Kate Smith
`Kate Smith
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`NON-PARTY BROADCOM’S MOTION TO SEAL
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