There's a flurry of activity surrounding the FTC v. Qualcomm antitrust trial in the Northern District of California. The previous two posts this morning were about Apple CEO Tim Cook's statements regarding Qualcomm in a CNBC interview and Qualcomm CEO Steve Mollenkopf's testimony, which the FTC has scheduled for Friday (January 11).
There are important developments not only in the courtroom but also on the docket of this case. Thankfully, Judge Lucy H. Koh of the United States District Court for the Northern District of California has identified a problem with Qualcomm (and in some cases maybe also third parties) demanding overredactions. As Judge Koh has already reminded counsel more than once during the trial, it is in principle a public proceeding. Confidential business information, if still competitively relevant today, must and will be protected, but public access to information is also important.
I complained about overredactions last month in connection with Qualcomm's proposed findings of fact and conclusions of law and expressed my hope that the court would not approve all of those far-reaching redactions. And indeed, the famous Don Quixote proverb ("Tanto va el cántaro a la fuente...") applied again: at trial time Judge Koh just noticed some excessive sealing requests and showed those sealing-happy lawyers that she's the gatekeeper.
Yesterday she reminded counsel of something she had unsealed, and she said: "I may unseal more and the more I'm watching..."
Today she entered an order that stresses the need to narrowly tailor any sealing requests (such as by redacting out only particular numbers and not entire passages only because of a few sensitive data points):
"If Qualcomm seeks to seal any of the exhibits to be introduced on Friday, January 11, 2019, Qualcomm shall file a narrowly tailored motion to seal today as soon as possible. Moving forward, the Court requests that Qualcomm file timely and narrowly-tailored motions to seal."
Judge Koh's orders to unseal have already proven very helpful to those monitoring the case. I'm step by step looking at what additional information has become available, and found a wealth of newly-unsealed information in the FTC's final pretrial brief, which is a whole lot easier to read and to understand after the FTC refiled it based on Judge Koh's denial of Qualcomm's excessive sealing requests (this post continues below the document):
19-01-08 FTC Trial Brief Af... by on Scribd
The effect of many passages having been unsealed is so significant that I recommend anyone who elected to read the original public version of the FTC's trial brief to re-read it now that it's far more informative, thanks to all those puzzle pieces that have been made public.
In the next two posts, I'll discuss what was said yesterday about "no license-no chips" and Qualcomm's refusal to license rival chipset makers, and in those posts I'll reference the new, less extensively-redacted version of the FTC's trial brief, as a number of facts have now entered the public domain that are key to understanding what certain witnesses said in yesterday's testimony.
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