FEDERAL TRADE COMMISSION’S MOTION TO EXCLUDE 

EXPERT TESTIMONY OF PROFESSOR AVIV NEVO

Case No. 17-cv-00220-LHK-NMC

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Jennifer Milici, D.C. Bar No. 987096

J. Alexander Ansaldo, Va. Bar No. 75870

Joseph R. Baker, D.C. Bar No. 490802

Geoffrey M. Green, D.C. Bar No. 428392

Nathaniel Hopkin, New York Bar No. 5191598

Daniel Matheson, D.C. Bar No. 502490

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-3695; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Plaintiff Federal Trade Commission

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-00220-LHK-NMC

FEDERAL TRADE COMMISSION’S 

MOTION TO EXCLUDE EXPERT 

TESTIMONY OF PROFESSOR AVIV 

NEVO

REDACTED VERSION OF DOCUMENT 

SOUGHT TO BE SEALED

Date: October 18, 2018

Time: 1:30 p.m.

Courtroom: 8, 4th Floor

Judge: Hon. Lucy H. Koh

Case 5:17-cv-00220-LHK Document 790 Filed 08/30/18 Page 1 of 8
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FEDERAL TRADE COMMISSION’S MOTION TO EXCLUDE 

EXPERT TESTIMONY OF PROFESSOR AVIV NEVO

Case No. 17-cv-00220-LHK-NMC

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NOTICE OF MOTION AND MOTION

To the Honorable Court, all parties, and their attorneys of record:

Please take notice that on October 18, 2018, at 1:30 p.m., in Courtroom 8, United States 

Courthouse, 280 South 1st Street, San Jose, California 95113, Plaintiff Federal Trade 

Commission will and hereby does move the Court for an order excluding the testimony of 

Professor Aviv Nevo, designated by Defendant Qualcomm Incorporated (“Qualcomm”) as an 

expert witness in this matter, concerning Qualcomm licenses that were not produced during 

discovery. The FTC’s motion is based on the authorities and evidence set forth here, the 

accompanying declaration and exhibits, oral argument to be presented to the Court, and such 

other matters as the Court may consider.

The FTC seeks to exclude, under Federal Rule of Evidence 403, portions of Prof. Nevo’s 

testimony that are based on documents produced months after the close of fact discovery.

STATEMENT OF ISSUE TO BE DECIDED

Whether certain opinions offered by Professor Aviv Nevo, in reliance on documents 

produced by Qualcomm after the close of fact discovery, should be excluded under Federal Rule 

of Evidence 403.

Case 5:17-cv-00220-LHK Document 790 Filed 08/30/18 Page 2 of 8
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FEDERAL TRADE COMMISSION’S MOTION TO EXCLUDE 

EXPERT TESTIMONY OF PROFESSOR AVIV NEVO

Case No. 17-cv-00220-LHK-NMC

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I. INTRODUCTION

Qualcomm’s expert witness, Professor Aviv Nevo, submitted a report disclosing his 

opinions regarding the economic effects of Qualcomm’s conduct at issue in this case. Rebuttal 

Report of Professor Aviv Nevo, June 28, 2018 [“Nevo Report”]. Prof. Nevo based some of his 

opinions on selected patent licenses that Qualcomm produced for the first time months after the 

close of fact discovery. Those opinions must be excluded under Federal Rule of Evidence 403 to 

avoid unfair prejudice to the FTC. The FTC had no opportunity to conduct discovery into these 

agreements or the negotiation thereof, and no opportunity to develop evidence to test or rebut 

Prof. Nevo’s conclusions. The FTC will suffer prejudice if Prof. Nevo’s opinions formed in 

reliance on materials produced after the close of discovery are admitted at trial. 

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Discovery Deadlines in the Case

Nearly a year ago, the Parties agreed “that Qualcomm would substantially complete its 

production of documents by November 28, 2017.” ECF No. 286 at 1. After proposing a limited 

refresh collection, Qualcomm was required to complete production of additional documents by 

December 18, 2017. ECF No. 389 at 1. Fact discovery closed on March 30, 2018, and this Court 

has granted only limited requests for specific forms of out of time discovery. See ECF No. 783 at 

2 (reviewing history of discovery deadlines and denying Qualcomm’s request for three more outof-time depositions).

B. Prof. Nevo’s Opinions Based on Late-Produced Materials

Qualcomm offers Prof. Nevo’s testimony to address the FTC’s allegations that 

Qualcomm’s alleged conduct, including its no license-no chips policy and its refusal to license 

rival chip makers, allowed Qualcomm to obtain elevated royalties for its cellular SEPs that tax 

rivals’ sales, with exclusionary effects. See Exhibit 1 (Nevo Report) at ¶¶ 5-7.1 Prof. Nevo

 

1 All exhibits are attached to the Declaration of Jennifer Milici in Support of the Federal Trade 

Commission’s Motion to Exclude Expert Testimony of Professor Aviv Nevo.

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FEDERAL TRADE COMMISSION’S MOTION TO EXCLUDE 

EXPERT TESTIMONY OF PROFESSOR AVIV NEVO

Case No. 17-cv-00220-LHK-NMC

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Prof. Nevo’s opinions are based on two agreements that Qualcomm produced after fact 

discovery had closed and the deadline for the submission of the FTC’s expert reports had passed. 

Id. (Nevo Report) ¶ 94 & n.179. According to the Nevo Report, 

. Id. But Qualcomm did not produce the agreements until June 22, 2018 

and June 28, 2018, respectively.4 

III. LEGAL STANDARD FOR UNFAIR PREJUDICE

Federal Rule of Evidence 403 provides that the Court may exclude relevant evidence if 

its probative value is substantially outweighed by a danger of unfair prejudice, confusing the 

issues, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 

403. The Court also has “broad discretion to manage the conduct of a trial and the evidence 

presented by the parties” to avoid unfair prejudice, pursuant to its inherent authority. Apple Inc. 

v. Samsung Elecs. Co., No. 11-cv-01846-LHK, 2018 WL 1586276, at *18 (N.D. Cal. Apr. 2, 

2018). 

IV. ARGUMENT

Core to the FTC’s theory is Qualcomm’s ability to leverage its modem chip monopoly 

power in licensing negotiations to obtain elevated royalties. Federal Trade Commission’s 

Complaint for Equitable Relief, ECF No. 1 ¶¶ 2-5; Order Denying Motion to Dismiss 8, ECF 

No. 134 at 8 (“FTC alleges that Qualcomm used its dominance in the supply of CDMA and 

premium LTE modem chips to skew SEP licensing negotiations toward outcomes that benefit 

Qualcomm and harm Qualcomm’s modem chip competitors.”). Prof. Nevo seeks to rebut that 

allegation and points to as evidence that 

 

4

 These agreements were produced initially to plaintiffs in In re Qualcomm Litigation, No. 3:17-

cv-00108-GPC-MDD, (S.D. Cal.) and copied to the FTC pursuant to the Joint Stipulation and 

Discovery Coordination Order, Jan. 24, 2018, ECF No. 513. Qualcomm did not produce any 

documents relating to the negotiation of the two licenses.

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FEDERAL TRADE COMMISSION’S MOTION TO EXCLUDE 

EXPERT TESTIMONY OF PROFESSOR AVIV NEVO

Case No. 17-cv-00220-LHK-NMC

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discovery deadlines by offering expert opinions formed in reliance on cherry-picked and lateproduced documents. 

While “[v]igorous cross-examination [and] presentation of contrary evidence ... are the 

traditional and appropriate means of attacking shaky but admissible” expert testimony, in this 

case the FTC is prejudiced because it has been denied the opportunity to discover “contrary 

evidence” with which to conduct such “[v]igorous cross-examination.” See Daubert v. Merrell 

Dow Pharms., Inc., 509 U.S. 579, 596 (1993). The Court should exclude any opinion testimony 

of Prof. Nevo that relies on Qualcomm’s under Rule 403 and the Court’s inherent 

authority, in order to avoid unfair prejudice to the FTC. If the Court were to permit introduction 

of these opinions and documents, the FTC would seek leave for out-of-time discovery, which 

would create significant and unnecessary delay. 

V. CONCLUSION

For the reasons explained above, the Court should prohibit Qualcomm from offering 

expert testimony or opinion of Professor Aviv Nevo based upon or concerning licenses that were 

not produced during the discovery period. 

Respectfully submitted,

Dated: August 30, 2018 /s/ Jennifer Milici

JENNIFER MILICI

J. ALEXANDER ANSALDO

JOSEPH R. BAKER

NATHANIEL HOPKIN 

GEOFFREY M. GREEN

DANIEL MATHESON

Bureau of Competition 

Attorneys for Plaintiff Federal Trade 

Commission

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