Qualcomm’s Non-Opposition to 

FTC’s Motion for Leave To Play 

Videotaped Deposition Testimony

Case No. 5:17-cv-00220-LHK-NMC

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KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest (SBN 84065)

rvannest@keker.com

Eugene M. Paige (SBN 202849)

epaige@keker.com

Justina K. Sessions (SBN 270914)

jsessions@keker.com

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 391 5400 

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, New York 10019-7475 

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

Attorneys for Defendant 

QUALCOMM INCORPORATED

MORGAN, LEWIS & BOCKIUS LLP

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com

101 Park Avenue

New York, NY 10178-0060

Telephone: (212) 309-6000

Facsimile: (212) 309-6001

MORGAN, LEWIS & BOCKIUS LLP

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com

1111 Pennsylvania Avenue NW

Washington, DC 20004-2541

Telephone: (202) 739-3000

Facsimile: (202) 739-3001

MORGAN, LEWIS & BOCKIUS LLP

Geoffrey T. Holtz (SBN 191370)

gholtz@morganlewis.com

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Telephone: (415) 442-1000

Facsimile: (415) 442-1001 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

vs.

QUALCOMM INCORPORATED, 

a Delaware corporation,

Defendant.

Case No. 5:17-cv-00220-LHK-NMC

DEFENDANT QUALCOMM 

INCORPORATED’S NONOPPOSITION TO PLAINTIFF 

FEDERAL TRADE COMMISSION’S 

ADMINISTRATIVE MOTION FOR 

LEAVE TO PLAY VIDEOTAPED 

DEPOSITION TESTIMONY

Courtroom: 8, 4th Floor

Judge: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1027 Filed 12/21/18 Page 1 of 5
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Qualcomm’s Non-Opposition to 

FTC’s Motion for Leave To Play 

Videotaped Deposition Testimony

Case No. 5:17-cv-00220-LHK-NMC

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Defendant Qualcomm Incorporated (“Qualcomm”) submits this Non-Opposition to 

Plaintiff Federal Trade Commission’s Administrative Motion for Leave to Play Videotaped 

Deposition Testimony (“Motion for Leave”).

Qualcomm does not oppose the FTC’s request for leave to play videotaped deposition 

testimony of Eric Reifschneider and Paul Jacobs, in lieu of calling them to testify live at trial 

during the FTC’s case-in-chief. The parties have agreed to a schedule for the exchange of 

deposition designations and counter-designations from Mr. Reifschneider and Dr. Jacobs and 

objections thereto.

Likewise, Qualcomm does not object to the FTC’s request to replace no more than 

10 exhibits on the FTC’s exhibit list with exhibits discussed in the FTC’s new designations of 

testimony from these two witnesses.1

 Qualcomm did not have the opportunity to take a position 

on this request for relief prior to the FTC’s filing because the FTC at the time had not yet 

provided Qualcomm with this degree of specificity as to the relief it is seeking.

To the extent that the FTC’s filing is intended to suggest a lack of cooperation by 

Qualcomm in scheduling witnesses for testimony, that is incorrect. Mr. Reifschneider has not 

been employed by Qualcomm for over two years, and he currently lives in Dallas, Texas. He has 

nevertheless agreed to attend trial voluntarily, and Qualcomm informed the FTC of this fact in 

mid-October. Importantly, the FTC did not say anything about the scheduling of testimony from 

current or former Qualcomm employees until November 19, 2018, when it requested Qualcomm 

to “confirm” that all of the current Qualcomm employees on its witness list, as well as six former 

Qualcomm employees (one of whom was Mr. Reifschneider), will be available on each of the 

trial days between January 4 and January 18. (Nov. 19, 2018 email from D. Matheson.) The FTC 

did not at that point identify Mr. Reifschneider, or any other specific witness, as someone it 

wished to call on January 4. In response, on a meet and confer and in subsequent 

 1 As indicated in the FTC’s Motion (ECF No. 1026 at 5), Qualcomm reserves its right to object to 

any exhibits the FTC adds to its exhibit list or to identify responsive exhibits. Qualcomm further 

reserves the right to use at trial any exhibits identified on the FTC’s exhibit list, even if the FTC 

removes them from its list to make room for the deposition exhibits of Mr. Reifschneider and 

Dr. Jacobs. (See Dec. 13, 2018 Tr. at 26:3-4 (FTC receiving confirmation that it may use exhibits 

from Qualcomm’s exhibit list).)

Case 5:17-cv-00220-LHK Document 1027 Filed 12/21/18 Page 2 of 5
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Qualcomm’s Non-Opposition to 

FTC’s Motion for Leave To Play 

Videotaped Deposition Testimony

Case No. 5:17-cv-00220-LHK-NMC

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correspondence, Qualcomm asked for more specific information about scheduling, so that the 

witnesses—and particularly the former employees—would not need to hold open a full two-week 

window for possible travel to San Jose. (See Nov. 25, 2018 email from G. Bornstein (“On the 

call we confirmed that we would be making [former employees] Eric Reifschneider, Michael 

Hartogs and Irwin Jacobs available for trial, provided we could work out scheduling, and we 

asked you to provide more clarity on when precisely you would like to call them.”).)

The FTC did not diligently respond to Qualcomm’s requests regarding scheduling. It was 

not until December 14, 2018, after this issue was raised by Qualcomm at the final pretrial 

conference (Tr. at 34:5-24), that the FTC first declared its intent to call Mr. Reifschneider on 

January 4, 2019. Within hours, Qualcomm informed the FTC that Mr. Reifschneider was not 

available to provide testimony on January 4 due to a long-scheduled vacation with his family. 

Although Mr. Reifschneider was originally unable to appear before January 11, he was able to rearrange his professional schedule so as to make himself available on January 8 (the third day of 

trial), but his family obligations still prevent him from appearing live before then. 

The other witnesses addressed in the FTC’s Motion for Leave (Dr. Jacobs, Mr. Aberle and 

Mr. Altman) are former employees represented by separate counsel; Qualcomm lacks the ability 

to make them available or to address the scheduling concerns described in the FTC’s Motion for 

Leave. Qualcomm has been advised, however, that Mr. Aberle has agreed to testify on January 7, 

2019, the second day of trial.

Under these circumstances, the FTC’s “alternative” request for the Court to “order 

Mr. Reifschneider and Mr. Aberle to appear on January 4” (Mot. at 2 & n.4) is unwarranted. 

Qualcomm does not oppose the primary relief sought by the FTC’s motion. Further, although the 

FTC alleges that, under 15 U.S.C. § 23, the Court has the “power to authorize service of trial 

subpoenas to witnesses anywhere in the United States”, Section 23 provides that such a subpoena 

shall issue only “upon proper application and cause shown”.2 Even if the FTC’s Motion for 

 2 In the only citation provided by the FTC in support of its assertion that “[c]ourts routinely 

authorize nationwide service of trial subpoenas in cases brought by the FTC”, the FTC and a 

private party stipulated that the Court could issue nationwide subpoenas, but the Court did not 

Case 5:17-cv-00220-LHK Document 1027 Filed 12/21/18 Page 3 of 5
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Qualcomm’s Non-Opposition to 

FTC’s Motion for Leave To Play 

Videotaped Deposition Testimony

Case No. 5:17-cv-00220-LHK-NMC

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Leave constitutes a “proper application”, there is no cause to compel the attendance of 

Mr. Reifschneider on January 4, 2019, for a number of reasons, including the undue burden this 

would cause to Mr. Reifschneider, a third party who lives outside the jurisdiction; 

Mr. Reifschneider’s agreement to provide testimony two trial days later, on January 8, 2019;

Qualcomm’s offer to make other witnesses available on January 4, 2019, including its two most 

senior executives, its CEO and its President; and the FTC’s lack of diligence in scheduling 

Mr. Reifschneider’s testimony for January 4.

 

determine that Section 23 applies in cases brought pursuant to the FTC Act or what constitutes a 

“proper application and cause shown”. See FTC v. Whole Foods Mkt., Inc., Civ. No. 07-cv01021-PLF, 2007 WL 9605037 (D.D.C. June 21, 2007).

Case 5:17-cv-00220-LHK Document 1027 Filed 12/21/18 Page 4 of 5
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Qualcomm’s Non-Opposition to 

FTC’s Motion for Leave To Play 

Videotaped Deposition Testimony

Case No. 5:17-cv-00220-LHK-NMC

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Dated: December 21, 2018

/s/ Gary A. Bornstein

Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

Robert A. Van Nest (SBN 84065)

Eugene M. Paige (SBN 202849)

Justina K. Sessions (SBN 270914)

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 391-5400

Facsimile: (415) 397-7188

rvannest@keker.com

epaige@keker.com

jsessions@keker.com

Richard S. Taffet (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP

101 Park Avenue

New York, NY 10178-0060

Tel.: (212) 309-6000

Fax: (212) 309-6001

richard.taffet@morganlewis.com

Willard K. Tom (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue NW

Washington, DC 20004-2541

Tel.: (202) 739-3000

Fax: (202) 739 3001

willard.tom@morganlewis.com

Geoffrey T. Holtz (SBN 191370)

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Tel.: (415) 442-1000

Fax: (415) 442-1001

gholtz@morganlewis.com

Attorneys for Defendant 

QUALCOMM INCORPORATED

Case 5:17-cv-00220-LHK Document 1027 Filed 12/21/18 Page 5 of 5