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Karen P. Hewitt (SBN 145309) kphewitt@jonesday.com Randall E. Kay (SBN 149369) rekay@jonesday.com Shireen M, Decker (SDN 237930) shecker@jonesday.com John B-Kiston (SBN 203250) jkinton@jonesday.c Kelly V-O:Donsell SBN 257266) ‘odonaell@jonesday com (Cary D. Sullivan (SBN 228527) carysullivan@jonesday com JONES DAY. 14655 Executive Drive, Suite 1500 San Diego, California 92121 Telephone: (858) 314-1200 Facsimile: (844) 345-3178 James Pooley (SBN 58041) james@pooley.com JAMES POOLEY PLC 325 Sharon Park Drive, No. 208 Menlo Park, California 94025 Telephone: (650) 285-8520, ‘Attomeys for Plaintiff (QUALCOMM INCORPORATED. Fatt SEP 24 2018 8y:T. Horak SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION QUALCOMM INCORPORATED, Plaintitt, APPLE INC. and DOES 1 through 25, inclusive, Defendants ‘CASE NO. 37-2017-00041389-CU-BC-NC DECLARATION OF KELLY V. O'DONNELL IN ‘SUPPORT OF PLAINTIFF QUALCOMM INCORPORATED'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT AND TRADE SECRET MISAPPROPRIATION (CIVIL CODE. §3426, er seg.) Assigned forall parposes to Hon. Jacqueline M. Stem Date November 30, 2018 Time: 130 pam, Dept: Nat ‘Action Filed: November 1, 2017 Teal Date: April 26,2019 10 2 B 14 15 16 ” 18 0 20 a 2 23 24 25 26 a 28 1, Kelly V. O1Donneli, hereby dectare: {Lam an attorey duly admitted to practice before all Courts of the State of California and cit before this Cour, an {am a partner with the law finn of Jones Day, counsel for Pi usicomm Incorporate (“Qualcomm”) inthe above captioned matter, Pursuant to Ca. Rule of Court 3.1324(b, I make this declaration in suppor of Qualcomm's Motion for Leaveto File First, Amended Complain, know the fats stated herein o be true based upon my own pesonal knowledge, [alle to testify a8 witnes, I could and would testify competently thereto 1. Qualcomm’ propose First Amended Complaint for Breach of Const and ‘Trade Secret Misappropriation (Civil Code § 3426) (*FAC") i tached hereto as Exhibit A. The purpose of Qulsomm’s proposed FAC is to amend Qualcomm’ allegations based on newly discovered fats shoving that Apple's wrongful conduct wet beyond breaching the contact ‘orginally sued on. These newly uncovered facts give rise to adtional, related claims aginst ion under Civil Code Section 3426 and far breach of ‘Apple, namely for wade seeret ssappropri an additonal agreement between the parties 2 The eect of Qualeommn’s proposed FAC is to amend Qualcomm’s firs cause of action, for breach of contract, to assert breach of a SoRware Development Tools Limited Use ‘Agreement entered into as of May 12,2008, and to adda second cause of action for tade secret risapproptiation (California Uniform Trade Secret Act). Queleomun’s proposed FAC also adés and amends allegations related tothe nature of the action juisdition and venue, statement of facts, and prayer for lief in accordance with Qualeomm’s amended first cause of ation and new second eause of actien, Qualeomm’s proposed FAC also makes certain changes not bearing on ‘Qualeomun's clams o the relief sought, such as indicating the ease number and the name ofthe signed judge, Specifically, Qualcomm’s proposed FAC makes the following revisias and axons + Paragaphs 1 trough 4, 11 though 16, and 25 tough 28 ofthe proposed FAC set forth allegations regarding the nature ofthe asin, the ational agreement that Quasom alleges Apple hs breached, the Qualcomm rade secrets that Apple misappropriated, ad Apple's yenslong campo! ale rons seth and suber design ose Ques ITALCOMINT abies confidential information ae trade serets forthe purpose of improving the performance of lower- quality modem chipsets with the goal of diverting Qualcomm's Apple-based business; + Paragraphs 9 and 10 ofthe proposed FAC set forth additional material regarding personal jristiction and venue as they relate tothe ational cause of action alleged in (Qualcomm’s proposed FAC; + Paragraphs (7 through 23 ofthe proposed FAC set forth allegations regarding the Master Sofware Agreemert, + Paragraphs 25 through 28 ofthe proposed FAC plead allegations related tothe parties’ May 12,2009 Tools Agreement; + Paragraphs 29 through 31 ofthe proposed FAC set fort allegations regarding Apple's theft of Quleommn’s protected information bepinning atleast several years ago and continuing through the present; + Paragraphs 32 through 36 ofthe proposed FAC include allegations, which were included in Qualcom’s original Complaint, regarding Apple's breach ofits audit and inspection obligations under the MSA; + Paragraphs 37 through 47 ofthe proposed FAC include revised and additonal allegations related to Qualoomm's cause of ection for breach of contact, + Paragraphs 48 though 55 ofthe proposed FAC st forth allegations related to Qualcomm's cause of action foe trade secret misappropriation; and + The Prayer fr Relief the propose FAC sts fort a revised request forthe judgment Qualcomm seeksby its proposed FAC, consistent with the causes of action set forth in Qualcomm's proposed FAC. 3. Exhibit B hereto is a rue and corest copy of Qualcommn’s original Complaint in this ation fled on November 1, 2017. On December 19,207, Apple ied an answer to 2 loomnm's Complaint. 4. Exhibit C hereto is tue and correct copy of «comparison showing ll changes between Qualoomm’s Complaint filed on November 1, 2017, and Qualeomm’s proposed FAC. 5. Thefts pings tothe propo amendnent er ony disor a | ~DECT-OF KELLY V-0 DONNELL IN SUPF- QUALCOMM'S MITN-FOR LEAVE TOFILE FAC