REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

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QUALCOMM’S HPOS FOR JANUARY 7, 2019 TRIAL DAY

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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 FOR 

JANUARY 7, 2019 TRIAL DAY

Pursuant to the Court’s October 24 Case Management Order (ECF No. 922), Qualcomm 

respectfully submits the following high priority objections for the January 7, 2019 Trial Day 2. 

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 1 of 10
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QC HPO No.1. Qualcomm objects to the deposition testimony of third-party 

witness Mark Davis at 240:7-9 on the grounds that Mr. Davis lacks personal knowledge to 

provide that testimony, FRE 602. Mr. Davis is a former employee of modem chip supplier 

VIA Telecom. The FTC seeks to admit Mr. Davis’s testimony that “

 (Davis Tr. 240:7-9.) Mr. Davis’s testimony is speculative and 

without foundation. He has no personal knowledge 

. Under FRE 602, the 

FTC must establish that Mr. Davis has “personal knowledge of the matter” he is testifying about. 

Gwynn v. City of Philadelphia, 719 F.3d 295, 304 (3rd Cir. 2013) (offering party has burden to 

establish foundation); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 

2001) (excluding testimony based on speculation). The Court should exclude this designation. 

QC HPO No. 2. Qualcomm objects to the deposition testimony of third-party 

witness Mark Davis at 260:12-261:19 on the grounds that Mr. Davis lacks personal 

knowledge to provide that testimony, FRE 602, and that the testimony constitutes hearsay 

under Rule 802. The FTC asked Mr. Davis to testify 

 

 

(Davis Tr. 260:12-21.) The FTC then asked him to elaborate further on what he was told: 

 His response, 

, is also hearsay. (Davis Tr. 

260:12-261:19.) Mr. Davis, who was employed by a chip supplier, also 

 The Court should 

exclude this testimony. 

QC HPO No. 3. Qualcomm objects to the deposition testimony of third-party 

witness Mark Davis at Tr. 254:21-255:24 and 266:1-266:18 on the grounds that Mr. Davis 

lacks personal knowledge to provide that testimony, FRE 602. In this testimony, 

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 2 of 10
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When asked for “ on this 

subject, he states that “

 – and then speculates further about 

why he . (Davis 

Tr. 254:21-255:24.) He later expounds on why he “

 (Id. 266:1-266:18 (emphasis added).) But Mr. Davis, who was employed by 

a modem chip supplier and not a handset supplier, 

 This testimony should be 

excluded under Rule 602. 

QC HPO No. 4. Qualcomm objects to the deposition testimony of third-party 

witness Andrew Hong at Tr. 139:23-140:5 and 173:7-10 on the grounds that Mr. Davis 

lacks personal knowledge to provide that testimony, FRE 602. Mr. Hong is an employee of 

Samsung Electronics Co. Ltd. The FTC seeks to admit testimony from Mr. Hong 

With regard to the failure of the joint venture, Mr. Hong testified that he had “ 

 and that he was not 

. (Hong 

Tr. 139:3-6.) The Court should therefore exclude his testimony appearing at 139:23-140:5 and 

173:7-10 as to why the joint venture failed. Mr. Hong’s testimony on these issues is 

inadmissible speculation, or, at best, based on inadmissible hearsay. FRE 602, 802; Carmen, 237 

F.3d at 1026. 

QC HPO No. 5. Qualcomm also objects to the FTC’s use of exhibit CX2621A, 

which contains inadmissible hearsay, and the related testimony of Mr. Hong for which he 

had no personal knowledge or otherwise lacks foundation, specifically: 161:6-162:24. 

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 3 of 10
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 The FTC offers Mr. Hong’s testimony regarding 

CX2621A and what “ (Id. at 161:21-22.) But Mr. Hong 

 and thus not “ ” (Id. 161:16-17.) Mr. 

Hong in fact testified that he was and was 

or some other, undefined document. (Id. at 160:9-12.) Mr. Hong cannot 

authenticate the document. FRE 901. Nor can he testify as to its contents. Both CX2621A and 

the testimony concerning it are therefore inadmissible hearsay. 

QC HPO No. 6. Qualcomm objects to CX3549 which contains hearsay that cannot 

be rehabilitated. CX3549 is an internal MediaTek email that contains at least two layers of 

hearsay that fail to satisfy any hearsay exception. See Padilla v. Terhune, 309: F.3d 614, 621 

(9th Cir. 2002) (ruling that “hearsay including within hearsay” is not admissible if “each link in 

the hearsay chain” does not “conform[] to a separate hearsay exception.”). Specifically, CX3549 

. (CX3549 at -004-5.) The FTC has identified Mr. Moynihan as the 

sponsor of CX3549, but he testified . (Moynihan 

Tr. 435: 17-436:1.) ” are out-of-court declarants. Thus, if offered 

to prove the truth of the matters asserted, CX3549 contains hearsay within hearsay in violation of 

Rule 805 that cannot be rehabilitated or cured by Mr. Moynihan’s in-court testimony. CX3549 

should be excluded. 

QC Response to FTC HPO No. 1. The FTC objects to Qualcomm’s completeness 

designation of testimony from Mr. Hong in two lines of questioning that the FTC designated 

from on pp. 78-82 (specifically 80:25-81:1 and 81:4-81:6, as well as in a subsequent passage on 

98:3-18) and 137-141 (specifically 137:25-138:3, 138:21-139:6, 140:6-140:8, 140:14-140:16). 

Specifically, in testimony designated by the FTC in the first passage, Mr. Hong testifies 

 (Hong Tr. at 78:17-24; 81:14-

21). Qualcomm’s completeness designation makes clear that Mr. Hong was 

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 4 of 10
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 (Id. at 80:25-81:1; 81:4-6; and, in one subsequent passage, 

98:3-18.) 

In the second passage, Mr. Hong testified

 (Hong Tr. 136:25-137:11, 139:23-140:5; 169:8-16; 170:13-171:4; 172:10-

173:10; 176:3-16). Omitted from this testimony but captured by Qualcomm’s completeness 

designations is Mr. Hong’s testimony that 

 (Id. at 137:25-138:3; 138:21-

139:6; 140:14-16) and that 

. (Id. at 140:6-8.) 

A party is permitted to introduce all or part of recorded statement that in fairness ought to

be considered at the same time as an adverse party’s recorded statement. See Fed. R. 106. 

Completeness designations are proper when they “[p]rove context for deposition excerpts 

already introduced” or “provide the court with a clearer understanding of the testimony” of the 

witness. Apple iPod iTunes Litig., 2009 WL 10678937 (N.D. Cal. Nov. 20, 2009.) Qualcomm’s 

completeness designations to Mr. Hong’s deposition transcript are closely related to testimony 

designated by the FTC—often following it by a few lines—and are necessary to avoid the 

misunderstandings or misleading impressions Rule 106 was designed to prevent. Qualcomm’s 

completeness designations are limited and necessary to avoid misleading presentation of 

evidence and “prove context” to “provide the court with a clearer understanding of the 

testimony”. Apple iPod iTunes Litig., 2009 WL 10678937, at *1. 

QC Response to FTC HPO No. 2. The FTC objects to statements made by Qualcomm 

and third parties in QX9233. In this document, 

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 5 of 10
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 (QX9233 at -7212.) 

 (Id.) 

The FTC’s objection to this document is premature, and the Court should reserve ruling 

on it until it is 

and can give non-hearsay testimony regarding it 

 The FTC’s objection is best addressed in the context of 

Moreover, an exception to the rule against hearsay is for statements concerning the declarant’s 

“then-existing statement of mind”. FRE 803(3). 

. These statements are also highly relevant, 

. See SmithKlineBeecham Corp. v. Abbott Labs, 2014 WL 6664226, 

*4 (N.D. Cal. Nov. 24, 2014). QX9233 is admissible and the Court should not exclude it.1 

QC Response to FTC HPO No. 3. The FTC also objects to QX9252 as hearsay. 

 (QX9252 at -2704.) QX9252 is admissible as proof of 

. That is not 

hearsay. QX9252 is admissible and the Court should not exclude it, but rather review its 

admissibility in

QC Response to FTC HPO No. 4. The FTC also objects to the statement made by 

 under Rule 602. That statement 

 1 To the extent the FTC objects to the parenthetical sentence beginning “At the meeting last 

week”, Qualcomm does not intend to introduce that statement for the truth of the matter asserted. 

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 6 of 10
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. (QX9233 at -7212.) 

and had personal 

knowledge sufficient to form a view, based on his own personal observations, 

 The 

document is admissible 

and specifically for 

 (QX9233 at -7212.) The Court 

should deny the FTC’s 602 objection to QX9233, but rather review its admissibility in the 

 

QC Response to FTC HPO No. 5. The FTC raises a hearsay objection to QX9308. That 

objection is premature. 

 (CX9308 at 0231-

241.) The FTC also appears to object to 

 (Id.) Each of these statements was made by 

 The document should be evaluated in the 

context of his testimony. Moreover, to the extent these statements are offered to show that 

, they are not 

offered for the truth of the matter asserted and thus do not even potentially constitute hearsay.

Case 5:17-cv-00220-LHK Document 1104 Filed 01/04/19 Page 7 of 10
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Dated: January 4, 2019 Respectfully submitted,

CRAVATH, SWAINE & MOORE LLP

s/ Gary A. Bornstein

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

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

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Attorneys for Qualcomm Incorporated

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