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Case No. 17-CV-00220-LHK 

ORDER DENYING QUALCOMM’S THIRD MOTION IN LIMINE

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

QUALCOMM INCORPORATED,

Defendant.

Case No. 17-CV-00220-LHK 

ORDER DENYING QUALCOMM’S 

THIRD MOTION IN LIMINE

Re: Dkt. No. 945

Before the Court is Defendant Qualcomm Incorporated’s (“Qualcomm”) third motion in 

limine to exclude evidence designated by Plaintiff Federal Trade Commission (“FTC”). ECF No. 

945. The FTC opposes the motion. ECF No. 955. Having considered all of the arguments raised 

in the parties’ submissions, the relevant law, and the record in this case, and balancing the factors 

set forth in Fed. R. Evid. 403, the Court DENIES Qualcomm’s third motion in limine. 

I. LEGAL STANDARD

The Court has broad discretion to manage the conduct of a trial and the evidence presented 

by the parties. Navellier v. Sletten, 262 F.3d 923, 941-42 (9th Cir. 2001). In addition, the Federal 

Rules of Evidence “confer broad discretion on the trial judge to exclude evidence on any of the 

grounds specified in Rule 403.” United States v. Hearst, 563 F.2d 1331, 1349 (9th Cir. 1977); see 

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Case No. 17-CV-00220-LHK 

ORDER DENYING QUALCOMM’S THIRD MOTION IN LIMINE

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also United States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995) (“trial courts have very broad 

discretion in applying Rule 403” (quoting Borunda v. Richmond, 885 F.2d 1384, 1388 (9th Cir. 

1988) (alteration omitted)). FRE 403 provides that “[t]he court may exclude relevant evidence if 

its probative value is substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” The ruling below balances the factors set forth in FRE 403.

II. DISCUSSION

Qualcomm seeks to exclude documents produced to the FTC by third-party Boston 

Consulting Group (“BCG”) as inadmissible hearsay. BCG created the documents during Project 

Phoenix, a consulting project BCG completed for Qualcomm. The FTC contends that the 

documents are admissible under FRE 801(d)(2) as statements of a party-opponent or under the 

FRE 803(6) business records exception to the rule against hearsay. The Court agrees with the 

FTC that the documents are admissible as statements of a party-opponent.1 

Under FRE 801(d)(2), if a “statement is offered against an opposing party” and “was made 

by the party’s agent or employee on a matter within the scope of that relationship and while it 

existed,” the statement is admissible. Fed. R. Evid. 801(d)(2)(D). In addition, a statement offered 

against an opposing party is not hearsay if the statement “is one the party manifested that it 

adopted or believed to be true.” Id. at 801(d)(2)(B). For purposes of FRE 801(d)(2)(D), “[a]n 

agency relationship arises when ‘both the principal and the agent must manifest assent to the 

principal’s right to control the agent.’” Hill v. Novartis Pharm Corp., 944 F. Supp. 2d 943, 950 

(E.D. Cal. 2013) (quoting United States v. Bonds, 608 F.3d 495, 506 (9th Cir. 2010)). 

Multiple courts, including the Ninth Circuit, have concluded that a consultant was a 

company’s agent under FRE 801(d)(2), such that the consultant’s statements were admissible as 

statements of a party-opponent. See Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 

 

1 Because the Court so concludes, the Court need not reach the FTC’s contention that the BCG 

documents are admissible under the FRE 803(6) business records exception. Nonetheless, were 

the Court to consider the Declaration of Raj Varadarajan, ECF No. 945-2, the Declaration suffices 

to show that the BCG documents are admissible as business records. 

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Case No. 17-CV-00220-LHK 

ORDER DENYING QUALCOMM’S THIRD MOTION IN LIMINE

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1292, 1306 (9th Cir. 1983) (admitting under FRE 801(d) an outside consultant’s report “prepared 

at the request” of the company); see also Walden v. Seaworld Parks & Entm’t, Inc., 2012 WL 

4050176, at *2 (E.D. Va. May 31, 2012) (concluding that a consultant “specifically retained . . . to 

provide the defendant with a report detailing those issues and proposing corrective actions” was an 

agent under FRE 801(d)(2)). While other courts have reached an opposite conclusion on different 

facts, see, e.g., Hill, 944 F. Supp. 2d at 950 (excluding consultants’ emails because there was “no 

evidence” in the emails that the client company controlled the scope of the consultants’ work), the 

record here is replete with evidence that BCG acted as Qualcomm’s agent. 

For example, the first BCG document, a presentation titled “Project Phoenix: Red Team 

Assessment,” contradicts Qualcomm’s argument that BCG provided only “the views of BCG.” 

ECF No. 945 at 3. The cover of the presentation, which contains Qualcomm’s logo, includes the 

following disclaimer: “The materials on this page and in this presentation were created pursuant to 

the specific request of Qualcomm Technologies, Inc. and do not reflect the advice or views of 

[BCG.]” ECF No. 963-6, Ex. 1, at 1. In addition, Qualcomm executive David Wise testified that 

he “was very involved in leading the analysis” during Project Phoenix and Qualcomm’s 

presentation of BCG’s analysis and conclusions to the Qualcomm board. ECF No. 955-7, 

Deposition of David Wise, 26:22; 29:3–19. Those facts alone support admission of the three BCG 

documents, which Qualcomm does not dispute BCG created for Qualcomm and at Qualcomm’s 

direction. See Beck v. Haik, 377 F.3d 624, 638–40 (6th Cir. 2004) (holding that a consultant’s

statements that “dealt directly with the subject matter” of the consultancy and were “expressed 

during the course of that relationship” were admissible under FRE 801(d)(2)), overruled on other 

grounds, Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir. 2009). 

Qualcomm’s adoption of BCG’s analysis and conclusions further demonstrates that BCG 

acted as Qualcomm’s agent. For example, Wise stated that BCG did not need to present BCG’s 

slides to the Qualcomm board because BCG’s “analysis and conclusions are in line with 

management’s assessment.” ECF No. 963-9. Instead, Qualcomm management itself would 

present BCG’s slides. Id. Even without Wise’s explicit statement of adoption, Qualcomm’s 

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ORDER DENYING QUALCOMM’S THIRD MOTION IN LIMINE

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incorporation of BCG’s analysis and conclusions into Qualcomm’s own presentation to 

Qualcomm’s board demonstrates that Qualcomm adopted BCG’s analysis and conclusions and 

that BCG was Qualcomm’s agent. See Walden, 2012 WL 4050176, at *2 (holding that a company 

adopted a consultant’s material where the company “incorporated portions of the outside 

consultant’s reports” into the company’s own material). Accordingly, BCG’s documents are 

admissible pursuant to both FRE 801(d)(2)(B), which governs statements adopted by a party, and

FRE 801(d)(2)(D), which governs statements by a party’s agent. 

In a further demonstration that BCG acted as Qualcomm’s agent, BCG claimed privilege 

and redacted the documents at issue when BCG produced them to the FTC. See ECF No. 963-10. 

BCG informed the FTC that BCG’s “analyses . . . implicated [Qualcomm’s] legal decisions.” Id.

at 3. Qualcomm does not contest that the documents are privileged and has never agreed to 

disclose the redacted privileged information. ECF No. 945 at 3 n.2. If BCG was not acting a 

Qualcomm’s agent, and Qualcomm disclosed privileged legal decisions to BCG, such a disclosure

would waive the attorney-client privilege. Segerstrom v. United States, 2001 WL 283805, at *3 

(N.D. Cal. Feb. 6, 2001) (“The attorney-client privilege covers communications between the 

attorney, the client, or their agents.”) (emphasis added). Qualcomm’s claim that BCG is an 

unrelated third party is in direct contradiction to BCG’s assertion of privilege when producing to 

the FTC the documents that BCG created for Qualcomm at Qualcomm’s direction. 

For all of the above reasons, the Court concludes that the BCG documents are admissible 

statements of a party-opponent under FRE 801(d)(2). Therefore, the Court DENIES Qualcomm’s 

third motion in limine. 

IT IS SO ORDERED.

Dated: December 13, 2018

______________________________________

LUCY H. KOH

United States District Judge

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