REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 

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QUALCOMM’S HPOS AND RESPONSES FOR JANUARY 8, 2019 TRIAL DAY 

17-CV-0220-LHK-NMC

KEKER VAN NEST & PETERS LLP 

Robert A. Van Nest 

Eugene M. Paige 

Justina K. Sessions 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 676-2289 

Facsimile: (415) 397-7188 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice) 

yeven@cravath.com 

825 Eighth Avenue 

New York, NY 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-0060 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS LLP 

Geoffrey T. Holtz (SBN 191370) 

Geoffrey.holtz@morganlewis.com 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

Additional Counsel listed on the Signature 

Page 

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-0220-LHK-NMC 

QUALCOMM’S HIGH PRIORITY 

OBJECTIONS AND RESPONSES 

FOR JANUARY 8, 2019 TRIAL DAY 

 

Case 5:17-cv-00220-LHK Document 1158 Filed 01/07/19 Page 1 of 10
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Pursuant to the Court’s October 24 Case Management Order (ECF No. 922), Qualcomm 

respectfully submits the following high-priority objections and responses for January 8, 2019. 

Qualcomm’s HPO #1 (objection to the written answers of Hwi-Jae Cho of LG 

Electronics: 13-15, 34, 36, 37, 38(a-d, g, h), 46, 47, 50-52, 61, 65, 66, 86-89, 91, 93, 98-101, 

104, 105, 107 and 108, on the grounds that he lacks personal knowledge or foundation for 

his testimony and because his testimony is hearsay) 

The FTC must establish a foundation for the testimony it presents. FRE 602 (“A witness 

may testify to a matter only if evidence is introduced sufficient to support a finding that the 

witness has personal knowledge of the matter”). The FTC seeks to introduce written responses 

from Mr. Cho of LGE regarding documents and matters about which he lacks personal 

knowledge; much of it is also hearsay. These answers are inadmissible under FRE 602 and 802. 

First, Mr. Cho purports to testify about LGE’s chip-related agreements and chip 

purchases. (See Qs. 13-15, 104-105.) Specifically, Mr. Cho writes 

 (Qs. 13-14) and 

 (Qs. 104, 105). But Mr. Cho is, and always has been, an employee 

in LGE’s IP Center dealing with patent licensing and prosecution; he has no foundation for 

testifying about procurement and procurement agreements. (Qs. 4, 5.) Second, Mr. Cho 

speculates about the positions LGE took during its with 

Qualcomm and its reasons therefor. (Qs. 36, 37, 38(a)-(d), (g)-(h), 61, 86-89, 91, 93, 98-101, 

107, 108.) As foundation, Mr. Cho claims that, he was ” in discussions with 

Qualcomm and 

”. (Q. 30.) But Mr. Cho did not 

, see Q. 4); indeed, his purported “ is nowhere 

explained. At most, Mr. Cho is reporting about what he heard from other unnamed individuals at 

LGE, who may (or may not) have personally participated in . This is not a 

Case 5:17-cv-00220-LHK Document 1158 Filed 01/07/19 Page 2 of 10
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proper foundation for the designated responses. Whereas an executive may sometimes testify 

about information he had learned from his reports, a low-ranking employee may not testify as to 

corporate actions and decisions based on his purported understanding of what he may have heard 

from his superiors. The distinction here is particularly clear: Mr. Cho is now the Director of the 

Intellectual Property Center at LGE, and in that capacity may be presumed to have knowledge of 

LGE’s But Mr. Cho may not properly testify as to the 

 based on what he heard at LGE. 

Third, Mr. Cho provides answers about the contents of letters exchanged between LGE and 

Qualcomm executives during —letters that he neither sent nor received—

and therefore lacks personal knowledge of. (E.g., Qs. 34, 46, 47, 50-52, 65, 66.) Mr. Cho’s 

answers should be excluded under FRE 602 and 802. 

Qualcomm’s HPO # 2 (objection to CX5260, CX6774, CX6813, CX6816 and 

CX8117 designated for admission through the testimony of Hwi-Jae Cho for lack of 

foundation and personal knowledge and hearsay) 

The FTC seeks to admit five documents through Mr. Cho’s written answers even though 

Mr. Cho did not author or receive them. These documents include 

(CX5260, CX8117) and a 

 (CX6774, CX6813, CX6816). To the extent the documents contain 

statements by persons other than Qualcomm, they also are inadmissible hearsay. To be clear, 

Qualcomm would not object on these bases if the FTC sought admission of the documents 

through a sponsoring witness who could lay proper foundation for them. 

Qualcomm’s HPO #3 (objection to designated deposition testimony of Isabel Mahe 

of Apple for lack of foundation and personal knowledge: 140:15-19, 141:25-142:20, 142:22-

143:2, 200:23-201:5, 235:10-15, 273:13-17) 

The FTC has designated portions of Ms. Mahe’s deposition testimony in which she 

speaks at length about an agreement between Apple and Qualcomm about which she has no 

personal knowledge. By her own admission, Ms. Mahe “

Case 5:17-cv-00220-LHK Document 1158 Filed 01/07/19 Page 3 of 10
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” (Tr. 142:4-6). Elsewhere, Ms. Mahe makes clear that she was 

 (Tr. 139:13-15), and that at most 

. (Tr. 140:6-9.) When asked about the circumstances under 

which any agreement was reached, Ms. Mahe responded, “

” (Tr. 347:15-18). As to the effects of the agreement, 

Ms. Mahe testified that she “[ ]” any 

incentive agreement and therefore could “

. (Tr. 147:18-22.) And Ms. 

Mahe further testified that her views of the effect of the agreements on Apple’s choice of 

supplier was formed “ ” by others. (Tr. 142:4-10.) 

Based on Ms. Mahe’s admitted lack of personal knowledge of the Apple-Qualcomm 

agreement and its impact (if any) on Apple’s sourcing decisions, this testimony should be 

excluded. 

Qualcomm’s HPO #4 (objection to designated deposition testimony of Todd 

Madderom for lack of foundation and personal knowledge: 212:9-23) 

The FTC designates testimony that was provided in response to a question calling for 

speculation, even though the witness explicitly testified that his answer was itself speculation. 

Mr. Madderom was asked a hypothetical question about the consequences of “

.” (212:9-11.) The witness prefaced 

his response with: “ (212:12.) Mr. Madderom’s 

testimony therefore should be excluded. Sempra Energy v. Marsh USA, Inc., No. 

CV0705431SJOJCX, 2008 WL 11335050, at *13-16 (C.D. Cal. Oct. 15, 2008) (excluding 

“speculative” deposition testimony). 

Case 5:17-cv-00220-LHK Document 1158 Filed 01/07/19 Page 4 of 10
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Qualcomm’s Response to FTC HPO No. 1 (QX9343) (demonstrative filed with 

FTC’s HPOs) 

The FTC’s objections to QX9343—a list of certain chips manufactured by Qualcomm 

that the FTC and its economic expert, Prof. Shapiro, have identified as within the “premium” 

LTE market—are without basis. Qualcomm does not seek admission of the demonstrative into 

evidence. Nor does it seek to use it to elicit expert testimony from Mr. Wyatt. Rather, the 

demonstrative will be used to assist the Court in understanding the testimony of Mr. Wyatt, a VP 

of Finance at QCT, Qualcomm’s chip and software business. Mr. Wyatt is capable of testifying, 

in his capacity as a fact witness, concerning the characteristics of the chips identified by the FTC 

and listed in the demonstrative. The FTC asserts that the demonstrative is misleading or 

prejudicial pursuant to FRE 403, but it has not identified any basis supporting that objection; the 

FTC has never disputed the accuracy of the exhibit. 

Qualcomm’s Response to FTC HPO No. 2 (QX9226) 

The FTC objects to statements made by Cristiano Amon and third parties in QX9226 on 

hearsay, personal knowledge, relevance and completeness grounds. QX9226 contains an email 

chain attaching a series of letters signed by Mr. Amon and addressed to various OEMs. 

Mr. Amon’s signature appears on each of the letters in QX9226, and, through his testimony, 

Mr. Amon will establish his personal knowledge of their contents. Moreover, the letters are not 

hearsay because they are verbal acts and are not being offered for the truth of their contents, but 

rather for their existence and effect on the recipient OEMs. Qualcomm does not seek to elicit 

testimony from Mr. Amon about the cover emails to which the signed letters are attached, and 

has offered to stipulate to the limited admission of QX9226 without them. Finally, the FTC 

asserts that the collection of letters to OEMs contained in QX9226 is incomplete, but it has not 

identified any other documents it believes should be considered together with QX9226 for the 

sake of completeness. See FRE 106 (“an adverse party may require the introduction, at that 

time . . . of any other writing . . . that in fairness ought to be considered at the same time”). 

Case 5:17-cv-00220-LHK Document 1158 Filed 01/07/19 Page 5 of 10
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Qualcomm’s Response to FTC HPO No. 3 (QX9322) 

The FTC objects to statements made by Mr. Amon and third parties in QX9322 as being 

inadmissible hearsay. QX9322 is an email authored by Mr. Amon, about which he is prepared to 

testify. Mr. Amon’s statement in the email about complaints from OEMs is not being offered for 

the truth of matters asserted in those complaints, but for their contemporaneous effect on Mr. 

Amon’s state of mind. 

Qualcomm’s Response to FTC HPO No. 4 (QX0079) 

The FTC objects to QX0079, a 2011 submission by Intel to the FTC in which Intel 

advocates against regulatory intervention in SEP licensing. The FTC seeks to exclude the 

document on grounds of relevance, foundation and hearsay. QX0079 is clearly relevant. The 

FTC alleges Qualcomm’s SEP licensing practices violate its FRAND obligations and the 

antitrust laws. Intel has been a complainant to the FTC and is aligned with the FTC; one of its 

executives is designated to testify in support of the FTC’s case. The fact that in 2011—decades 

after Qualcomm first adopted the practices at issue—Intel told the FTC that reports of problems 

with SEP licensing “have been overblown” and that the FTC should be “more concerned about 

. . . adoption of optimal industry standards than about the short term royalties that innovators 

may charge”, id. at 2, is clearly relevant. 

The FTC’s objection that Ms. Evans of Intel lacks personal foundation to testify 

concerning the document is both premature and misplaced. Ms. Evans’s testimony has not yet 

begun. And, even if she is unable to sponsor the document, the Court may take judicial notice of 

the fact that Intel submitted QX0079 to the FTC. (ECF No. 931 at 9-10 (granting judicial notice 

of documents submitted to the Korea Fair Trade Commission because they were “filings with 

government regulatory bodies”).) The statements in the submission are not hearsay because they 

record Intel’s state of mind regarding the state of SEP licensing in 2011, the very period when 

Intel was allegedly harmed by Qualcomm’s practices. FRE 803(3). 

Case 5:17-cv-00220-LHK Document 1158 Filed 01/07/19 Page 6 of 10
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Qualcomm’s Response to FTC HPO No. 5 (Qualcomm’s designations of deposition 

testimony of Isabel Mahe pursuant to the rule of completeness: 139:5-140:14, 316:1-4) 

The FTC’s objection to Qualcomm’s designation of Mahe Tr. 139:5-140:14 pursuant to 

the rule of completeness further compounds the flaws of Ms. Mahe’s testimony that is the subject 

of Qualcomm’s objection above. In Qualcomm’s completeness designation, Ms. Mahe testifies 

that she 

 (Mahe Tr. 139:13-15), and “

” (Mahe Tr. 140:8-9). The FTC’s extensive designation of Ms. Mahe’s 

testimony is therefore misleading without Qualcomm’s completeness designation, contrary to the 

fairness principles of FRE 106. 

Mahe Tr. 316:1-4 completes the testimony designated by the FTC at Mahe Tr. 315:15-24. 

Without the designation, the Court would be left with a misleading impression by the testimony 

designated by the FTC. Specifically, the FTC designated testimony regarding a heading in an 

exhibit, which raised the question of whether . 

(Tr. 315:15-24.) However, the FTC omitted testimony regarding what appears under that 

heading, where the document states that . (Tr. 316:1-4.) 

Absent this completeness designation, the testimony designated by the FTC is misleading, as it 

suggests the document and related testimony have the opposite meaning of what they in fact 

state.

 

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Dated: January 7, 2019 Respectfully submitted, 

 

CRAVATH, SWAINE & MOORE LLP 

s/ Yonatan Even 

 Gary A. Bornstein 

Yonatan Even 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Robert A. Van Nest 

Eugene M. Paige 

Justina K. Sessions 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111 

Telephone: (415) 676-2289 

Facsimile: (415) 397-7188 

rvannest@keker.com 

epaige@keker.com 

jsessions@keker.com 

Richard S. Taffet 

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178 

Telephone: (212) 369-6000 

Facsimile: (212) 309-6001 

richard.taffet@morganlewis.com 

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Geoffrey T. Holtz 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 

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