UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable MaryJoan McNamara
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN LTE- AND 3G-COMPLIANT
`CELLULAR COMMUNICATIONS
`DEVICES
`
`Investigation No. 337-TA-1138
`
`THIRD-PARTY QUALCOMM INCORPORATED’S RESPONSE TO COMPLAINANT
`INVT SPE LLC’S EXPEDITED MOTION FOR JUDICIAL ENFORCEMENT OF
`SUBPOENA DUCES TECUM AND AD TESTIFICANDUM
`
`I.
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`INTRODUCTION
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`Third-party Qualcomm Incorporated (“Qualcomm”) respectfully submits this Response to
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`Complainant INVT SPE LLC’s (“INVT”) Expedited Motion for Judicial Enforcement of
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`Subpoena Duces Tecum and Ad Testificandum.
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`INVT seeks from Qualcomm (1) software and firmware source code; (2) modem hardware
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`code across 14 modem products; and (3) voluminous technical documents regarding the modem
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`hardware and instruction sets/assembly languages related to three respondents and one non-party
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`(Samsung). INVT’s Motion should be denied for two reasons. First, INVT and Qualcomm have
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`not reached an impasse. INVT has failed to identify any requested information that Qualcomm
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`has refused to produce. Rather, the Motion seeks to burden third-party Qualcomm by imposing an
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`arbitrary deadline for production of the remaining source code (software, hardware, and firmware)
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`and technical documents that Qualcomm has already agreed to produce and completed on February
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`15, 2019. For this reason alone, the Motion should be denied. Second, Qualcomm is working in
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`good-faith to produce the confidential information and, as a practical matter, there is nothing that
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`can be done to make the collection and production process proceed any faster.
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`II.
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`ARGUMENT
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`Qualcomm first met and conferred with INVT regarding its subpoena and Qualcomm’s
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`responses and objections on November 16, 2018 in order to try to reduce the burden on Qualcomm
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`and reach agreement on the scope of the subpoena. What INVT’s motion fails to acknowledge is
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`that pursuant to those discussions, the parties do not disagree on the scope of the subpoena and are
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`not at an impasse. Qualcomm has made significant productions of both source code and technical
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`documents and continues to produce on a rolling basis. INVT also fails to acknowledge that much
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`of the confidential information that has yet to be produced, but which is in process, was not
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`requested until approximately one month ago. In fact, INVT is still making new requests for the
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`production of source code. As recently as February 14, 2019 (six days after Qualcomm received
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`the Motion) INVT requested for the first time that Qualcomm collect and produce software and
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`firmware source code for non-party Samsung’s devices. (Ex. A, Waslif Decl., ¶7.) It is
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`disingenuous for INVT to move for judicial enforcement of a subpoena when Qualcomm is
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`working in good-faith to complete production in real-time as INVT is making new requests. For
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`this additional reason, the Motion should be denied.
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`INVT’s request for a five-day deadline is unduly burdensome and unreasonable.
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`Qualcomm has expedited its collection and review and is working in good-faith to produce the
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`confidential information. Five days is simply not practical and there is nothing that can be done
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`to make the collection and production process proceed any faster. Moreover, INVT cites the
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`government shutdown as the primary basis for expediting its request for judicial enforcement. The
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`government shutdown, however, ended on January 25, 2019, and INVT delayed two-weeks in
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`filing its Motion. Any prejudice to INVT is of its own making and should not be unreasonably
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`shifted to Qualcomm. Finally, INVT argues that “there is minimal inconvenience to Qualcomm
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`because Qualcomm has not substantively disputed the scope of INVT’s requested information.”
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`Motion at 9-10. Qualcomm’s compliance with the subpoena does not minimize the burden on
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`Qualcomm. To the contrary, it substantially reduces any prejudice to INVT.
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`Page 2 of 5
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`Up against a discovery deadline, INVT now asks the Commission to burden third-party
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`Qualcomm with the imposition of an arbitrary deadline to complete the production without regard
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`for the time and effort necessary for Qualcomm to complete that production. “An administrative
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`law judge, however, cannot compel a non-party to provide documents and/or testimony in response
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`to a subpoena.” Certain Automated Media Library Devices, Inv. No. 337-ITC-746, Order No. 14,
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`2011 WL 2548855, at *1 (June 24, 2011). “Where a party seeks discovery from a third party that
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`is responsive to a subpoena, such discovery must be sought through Commission Rule 210.32(g),
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`which governs judicial enforcement of a subpoena.” Id. (citing 19 C.F.R. § 210.32(g).
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`Commission Rule 210.32(g) requires the party seeking enforcement to demonstrate “the purpose,
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`relevance, and reasonableness of the subpoena.” 19 C.F.R. § 210.32(g). INVT’s Motion does not
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`address an actual, ripened dispute and fails to demonstrate the reasonableness of its request. As
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`such, the Motion is unnecessary and should be denied.
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`III.
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`STATUS OF THE REMAINING COLLECTIONS
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`Qualcomm has endeavored to keep INVT regularly informed regarding the status and
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`timing of Qualcomm’s collections and productions. (Ex. A, Waslif Decl., ¶3.) The current status
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`of the outstanding requests for technical documents and source code is as follows:
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`Software Source Code
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`On February 13, 2019, Qualcomm advised INVT that the software source code for the
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`outstanding ZTE Build ID had been produced and was ready for inspection. (Ex. A, Waslif Decl.,
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`¶6.) As such, Qualcomm has discharged its obligations with respect to the production of the
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`relevant software source code.
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`Modem Hardware Code
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`Shortly after December 25, 2018, Qualcomm produced hardware source code for more
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`than half of the identified modems. On January 8, 2019, INVT requested for the first time that
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`Qualcomm produce the modem hardware code for the modems incorporated into the Apple
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`accused products. (Ex. A, Waslif Decl., ¶5.) On January 28, 2019, Qualcomm advised INVT that
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`Page 3 of 5
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`it produced for inspection modem hardware code for 3 more of the outstanding modems. (Id.)
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`INVT admits in its Motion that it has chosen not to conduct an inspection of the additional code
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`for these modems at this time. (It is unclear why, then, the Motion was made on an expedited
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`basis.) On January 31, 2019, we advised INVT that Qualcomm was in the process of collecting
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`the hardware code for the two remaining modems. (Id.) Qualcomm hopes to complete this
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`production by February 28, 2019. Once the hardware code for the two remaining modems has been
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`produced for inspection, the production of all of the relevant modem hardware code will be
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`complete.
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`Technical Documents
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`During the initial meet and confer on November 16, 2018 regarding INVT’s subpoena and
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`Qualcomm’s responses and objections, INVT agreed to seek and obtain Qualcomm’s technical
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`documents from the respondents. (Ex. A, Waslif Decl., ¶4.) Because the Respondents must provide
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`notice of their productions of Qualcomm confidential documents, Qualcomm is aware that
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`Defendants were producing Qualcomm technical documents. It was not until January 6, 2019, that
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`INVT first requested Qualcomm to produce certain technical documents. (Id.) On February 4,
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`2019, Qualcomm produced more than 8,700 pages of the requested technical documents (Ex. A,
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`Waslif Decl., Exhibit 1.) and on February 15, 2019 Qualcomm completed its production of
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`technical documents. (Ex. A, Waslif Decl., ¶4.)
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`Firmware Source Code
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`INVT’s Motion also fails to mention that its request for the production of firmware source
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`code was made approximately one month ago. (Ex. A, Waslif Decl., ¶3.) Back on November 17,
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`2018, INVT (John Harting) sent an email to ITC staff counsel regarding its meet and confer phone
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`call with Qualcomm on the preceding day. (Vogel Decl., Ex. 4, in support of Complainant’s
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`Motion to Enforce Subpoena; Ex. A, Waslif Decl., ¶3.) Mr. Harting stated that “INVT will confirm
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`whether modem hardware and firmware is needed” and that the “initial focus will be on software.”
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`(Vogel Decl., Ex. 4, in support of Complainant’s Motion to Enforce Subpoena; Ex. A, Waslif
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`Decl., ¶3.) On January 4, 2019, INVT sent an email requesting that Qualcomm produce “the
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`Page 4 of 5
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`firmware source code [ ].” (Vogel Decl., Ex. 10, in support of Complainant’s Motion to Enforce
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`Subpoena; Ex. A, Waslif Decl., ¶3.) The firmware collection is still in process and it will be
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`produced as quickly as possible. Qualcomm estimates production will be complete by March 13,
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`2019. Once this is done, Qualcomm will have discharged its obligations to produce the relevant
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`firmware source code.
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`Based on the foregoing, Qualcomm respectfully requests that the Administrative Law
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`Judge deny INVT’s Motion. As Qualcomm has done since it received the subpoena, Qualcomm
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`will continue to work in good-faith to discharge its discovery obligations and produce the
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`remaining code as soon as possible.
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`Dated: February 20, 2019
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`Respectfully submitted,
`
`
`
`/s/ Evan H. Langdon
`Deanna Tanner Okun
`Evan H. Langdon
`ADDUCI, MASTRIANI &
`SCHAUMBERG, L.L.P.
`1133 Connecticut Avenue, N.W., 12th Floor
`Washington, DC 20036
`Tel.: (202) 467-6300
`Fax: (202) 466-2006
`
`Donn Waslif
`MORGAN FRANICH FREDKIN
`SIAMAS & KAYS LLP
`333 W. San Carlos Street
`Suite 1050
`San Jose, CA 95110
`Tel: (408) 288-8288
`Fax: (408) 288-8325
`dwaslif@mffmlaw.com
`
`Counsel for Third-Party
`Qualcomm Incorporated
`
`Page 5 of 5
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`EXHIBIT A
`
`EXHIBIT A
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable MaryJoan McNamara
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN LTE- AND 3G-COMPLIANT
`CELLULAR COMMUNICATIONS
`DEVICES
`
`Investigation No. 337-TA-1138
`
`DECLARATION OF DONN WASLIF IN SUPPORT OF THIRD-PARTY
`QUALCOMM INC.'S RESPONSE TO COMPLAINANT
`INVT SPE LLC'S EXPEDITED MOTION FOR JUDICIAL ENFORCEMENT
`OF SUBPOENADUCES TECUM AND AD TESTIFICANDUM
`
`I, Donn Waslif, declare:
`
`1.
`
`I am an attorney at law and partner at Morgan Franich Fredkin Siamas &
`
`Kays, LLP, attorneys for Third-Party Qualcomm Incorporated ("Qualcomm"). Qualcomm
`
`received a Subpoena Duces Tecum and Ad Testificandum (the "Subpoena") issued from
`
`this investigation for confidential technical documents and confidential source code.
`
`2.
`
`I am providing this declaration in support of Qualcomm's Response to
`
`Complainant INVT SPE LLC's ("INVT") Motion for Judicial Enforcement of Subpoena
`
`Duces Tecum and Ad Testificandum.
`
`3.
`
`Qualcomm has endeavored to keep INVT regularly informed regarding the
`
`status and timing of Qualcomm's collections and productions. After serving Qualcomm's
`
`responses and objections to INVT's Subpoena, I participated in a phone call on November
`
`16, 2018 with INVT' s counsel to meet and confer regarding the scope of the confidential
`
`source code and confidential technical documents requested from Qualcomm. The next
`
`day, on November 17, 2018, INVT (John Harting) sent an email to me and ITC staff
`
`

`

`counsel about the meet and confer phone call. John Harting stated that "INVT will confirm
`
`whether modem hardware and firmware is needed" and that the "initial focus will be on
`
`software." On January 4, 2019, INVT sent an email to us requesting for the first time that
`
`Qualcomm produce "the firmware source code [ ] . "
`
`4.
`
`During the initial meet and confer with INVT on November 16, 2018, INVT
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`agreed to seek and obtain Qualcomm's technical documents from the respondents. INVT
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`later came back to Qualcomm and requested for the first time on January 6, 2019 that we
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`produce certain technical documents. On February 4, 2019, Qualcomm produced more
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`than 8, 700 pages of the requested technical documents. Attached hereto as Exhibit 1 is a
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`true and correct copy of the cover letter dated February 4, 2019 from counsel for Qualcomm
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`to counsel for the parties enclosing those 8, 700+ pages of technical documents. On
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`February 15, 2019 Qualcomm completed its production of technical documents.
`
`5.
`
`On January 8, 2019, INVT requested for the first time that Qualcomm
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`produce the modem hardware code for the modems incorporated into the Apple accused
`
`products. On January 28, 2019, Qualcomm advised INVT that it produced for inspection
`
`modem hardware code for 3 more of the outstanding modems. This completed
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`Qualcomm's production of hardware code for all but 2 modems. INVT has not inspected
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`this additional hardware code. On January 31, 2019, we advised INVT that Qualcomm was
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`in the process of collecting the hardware code for the 2 remaining modems.
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`6.
`
`Qualcomm has produced all of the requested software source code. On
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`February 13, 2019, Qualcomm advised INVT that the software source code for the
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`outstanding ZTE Build ID had been produced and was ready for inspection.
`
`7.
`
`On February 14, 2019, INVT requested for the first time that Qualcomm
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`collect and produce software and firmware source code for non-party Samsung's devices.
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`Executed on this 20th day of February, 2019.
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`Page 2 of2
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`EXHIBIT 1
`EXHIBIT 1
`
`

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`MORGAN FRANICH FREDKIN
`SIAMAS & KAYS LLP
`
`SUITE 1050
`333 WEST SAN CARLOS STREET
`SAN JOSE, CALIFORNIA 95110-2735
`(408) 288-8288
`FAX(408)288-8325
`
`February 4, 2019
`
`FREEDA YLLANA LUGO
`
`flugoCiilmffmla'w.com
`
`VIA FEDERAL EXPRESS
`
`Derrick Carman
`Robins Kaplan LLP
`399 Park A venue, Suite 3600
`New York, NY 10022
`(Counsel for INVT)
`
`Kristina Grauer
`SheppardMullin
`12275 El Camino Real, Suite 200
`San Diego, CA 92130-4092
`(On Behalf of Counsel for HTC)
`
`Robert P. Leonard
`Kirkland & Ellis LLP
`601 Lexington A venue
`New York, NY 10022
`(On Behalf of Counsel for Apple)
`
`Jodi Baker
`McDermott Will & Emery LLP
`444 West Lake Street, Suite 4000
`Chicago, IL 60606-0029
`(On Behalf of Counsel for ZTE)
`
`Re:
`
`In the Matter of Certain LTE and 3G Compliant Cellular Communications
`Devices, JNVT v. Apple, HTC and ZTE
`USITC 337-TA-1138
`
`Dear Counsel:
`
`labeled
`(Bates
`documents
`containing the document
`production of Qualcomm Incorporated ("Qualcomm") in response to INVT's subpoena in the
`above-referenced matter. This production is designated as "QUALCOMM CONFIDENTIAL
`BUSINESS INFORMATION" pursuant to the Supplemental Protective Order in this matter and
`must be treated accordingly. A separate email will be sent with the password, as these documents
`are encrypted.
`
`Please do not hesitate to contact me if you should have any questions.
`
`Very truly yours,
`
`FREEDA LUGO
`
`FL:av
`Enclosures
`cc:
`Client w/o enclosures
`
`

`

`
`
`
`
`CERTAIN LTE- AND 3G-COMPLIANT CELLULAR
`COMMUNICATIONS DEVICES
`
`Inv. No. 337-TA-1138
`
`CERTIFICATE OF SERVICE
`
`I, Carolina Macias, hereby certify that on February 20, 2019, true and correct copies of
`THIRD-PARTY QUALCOMM INCORPORATED’S RESPONSE TO COMPLAINANT
`INVT SPE LLC’S EXPEDITED MOTION FOR JUDICIAL ENFORCEMENT OF
`SUBPOENA DUCES TECUM AND AD TESTIFICANDUM and DECLARATION OF DONN
`WASLIF IN SUPPORT OF THIRD-PARTY QUALCOMM INC.’S RESPONSE TO
`COMPLAINANT
`INVT SPE LLC’S EXPEDITED MOTION
` FOR JUDICIAL
`ENFORCEMENT OF SUBPOENA DUCES TECUM AND AD TESTIFICANDUM were served
`upon the following parties as indicated:
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, SW
`Washington, D.C. .20436
`
`The Honorable MaryJoan McNamara
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, SW, Room 317
`Washington, D.C. 20436
`
`Reginald Lucas, Esq., Investigative Attorney
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, SW, Suite 401
`Washington, D.C. 20436
`
`Robert A. Appleby, P.C.
`Kirkland & Ellis LLP
`601 Lexington Avenue
`New York, NY 10022
`
`Counsel for Respondent Apple Inc.
`
`Stephen S. Korniczky
`Sheppard, Mullin, Richter & Hampton LLP
`12275 El Camino Real, Suite 200
`San Diego, California 92130
`
`Counsel for Respondents HTC Corp. and HTC
`America, Inc.
`
`
`
`Via FedEx Overnight: 2 copies
`
`Via FedEx Overnight: 2 copies
`
`Via Email: Jae.Lee@usitc.gov;
`Michael.Buckler@usitc.gov
`
`Via Email: Reginald.Lucas@usitc.gov
`
`Via Email: Apple-Inventergy@kirkland.com
`
`
`Via Email:
`LegalTm-HTC-INVT-ITC@sheppardmullin.com
`
`
`
`

`

`Jay H. Reiziss
`McDermott Will & Emery LLP
`500 North Capitol Street, NW
`Washington, D.C. 20001
`
`Counsel for Respondents ZTE Corp. and ZTE
`(USA) Inc.
`
`Bryan J. Vogel
`Derrick J. Carman
`Stephanie A. Diehl
`Robins Kaplan LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
`
`Counsel for Complainant INVT SPE LLC
`
`
`Dated: February 20, 2019
`
`
`
`
`
`
`Via Email: ZTEINVT@mwe.com
`
`
`
`Via Email: RK_INVT_ITC@RobinsKaplan.com
`
`
`
` /s/ Carolina Macias
`Carolina Macias, Litigation Assistant
`MORGAN FRANICH FREDKIN
`SIAMAS & KAYS LLP
`
`
`
`