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QUALCOMM’S HPO RESPONSES FOR JANUARY 4, 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 RESPONSES TO 

HIGH PRIORITY OBJECTIONS FOR 

JANUARY 4, 2019 TRIAL DAY

Pursuant to the Court’s October 24 Case Management Order, Qualcomm respectfully 

submits the following response to the FTC’s high priority objection for the January 4, 2019 Trial 

Day. 

Case 5:17-cv-00220-LHK Document 1075 Filed 01/03/19 Page 1 of 8
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28 QUALCOMM’S HPO RESPONSES FOR JANUARY 4, 2019 TRIAL DAY

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HPO No. 1. The FTC has designated more than four hours of deposition video from 

seven different witnesses to be played “as early as Trial Day 1 (Friday, January 4)”. (12/31/18 

Email from J. Baker.) This objection concerns the FTC’s refusal to play—together with its

designated deposition testimony—approximately 10 minutes of deposition video designated by 

Qualcomm pursuant to the rule of completeness.1 See Federal Rule of Evidence 106 (“If a party 

introduces all or part of a writing or recorded statement, an adverse party may require the 

introduction, at that time, of any other part . . . that in fairness ought to be considered at the same 

time.”); Federal Rule of Civil Procedure 32(a)(6) (“an adverse party may require the offeror to 

introduce other parts that in fairness should be considered with the part introduced”). The FTC 

initially objected to all of Qualcomm’s designations, though it later dropped some of its 

objections. The FTC maintains the remaining objections even though, pursuant to the parties’ 

agreement, Qualcomm’s completeness designations will be charged against Qualcomm’s trial 

time, not the FTC’s. 

The FTC has applied an improper test to Qualcomm’s completeness designations, 

rejecting many on the grounds that the designation comprised a “new question and answer” or 

were not “in proximity of any designated testimony” on a deposition transcript. (1/2/9 Email 

from E. Gillen.)2 However, the Rules do not limit completeness designations to those that 

literally complete a single question and answer or that are next to designated testimony. Rather, 

completeness designations are proper when they “provide[] context for the deposition excerpts 

 1 The FTC has objected to: Chong Tr. 212:11-212:15; Chong Tr. 212:22-213:3; Grubbs Tr. 

93:15-93:19; Grubbs Tr. 129:13-129:16; Grubbs Tr. 316:21-316:24; Grubbs Tr. 317:22-318:6; 

Grubbs Tr. 322:12-322:22; Jacobs Tr. 153:25-154:24; Jacobs Tr. 184:23-185:6; Jacobs Tr. 

229:18-230:1; Reifschneider Tr. 51:10-52:11; Reifschneider Tr. 88:8-88:10; Reifschneider Tr. 

88:13-88:14; Reifschneider Tr. 126:8-126:19; Reifschneider Tr. 128:14-128:18; Reifschneider 

Tr. 128:21-129:12; Yang Tr. 122:13-122:16; Yang Tr. 122:20-122:21; Yu Tr. 70:8-70:9; Yu Tr. 

70:12-70:15; Yu Tr. 71:11-71:13.

2 “New question and answer” is the sole basis for the FTC’s objections to 10 Qualcomm 

designations. “Not in proximity of any designated testimony” is an additional basis for the 

FTC’s objections to six more. 

Case 5:17-cv-00220-LHK Document 1075 Filed 01/03/19 Page 2 of 8
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28 QUALCOMM’S HPO RESPONSES FOR JANUARY 4, 2019 TRIAL DAY

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

witness. Apple iPod iTunes Antitr. Litig., 2009 WL 10678937 (N.D. Cal. 2009). Completeness 

designations, further, are proper to avert “misunderstanding or distortion” that may result from 

introducing one portion of testimony separately from another portion. Beech Aircraft Corp. v. 

Rainey, 488 U.S. 153, 171 (1988); see also F.R.E. 106 Advisory Committee Notes (the rule is 

designed to prevent “the misleading impression created by taking matters out of context”). 

During the parties’ meet and confer, the FTC suggested that all of Qualcomm’s completeness 

designations were unnecessary because Qualcomm could simply play designated testimony 

during its case. However, in recommending Rule 106, the Advisory Committee rejected 

precisely that argument, considering “the inadequacy of repair work when delayed to a point 

later in trial”. Qualcomm’s completeness designations would avoid the misunderstandings or 

misleading impressions the Rules were designed to prevent.

In attempt to avoid burdening the Court with this issue, following the meet-and-confer 

Qualcomm withdrew more than half of its completeness designations, including its brief re-direct 

examination of Mr. Reifschneider, which addresses misleading impressions left by the testimony 

the FTC has chosen to play. This will require the Court to hear the re-direct out of context 

during Qualcomm’s case. Nevertheless, Qualcomm has made this accommodation to the FTC’s 

objections.

Although the FTC then withdrew some of its objections, it continued to maintain 21 of 

them. Examples drawn from its remaining objections illustrate the improper standard it has 

applied to Qualcomm’s completeness designations: 

• From the deposition of Dr. Paul Jacobs, the FTC is declining to play a Qualcomm 

completeness designation that literally falls directly between two designations 

made by the FTC. (Tr. 153:25-154:24.) The FTC’s stated basis for its objection 

is that Qualcomm’s designation concerns an “entirely new portion of [the] email” 

that is discussed in the FTC’s designations. (1/2/19 Email from. E. Gillen.) 

Case 5:17-cv-00220-LHK Document 1075 Filed 01/03/19 Page 3 of 8
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Qualcomm’s completeness designation clearly concerns the same subject 

matter—and the same document—as the FTC’s, and is necessary to provide 

context for the testimony designated by the FTC. Yet the FTC improperly insists 

that Qualcomm use this completeness designation, if at all, weeks later in its own 

case, rather than permitting the Court to hear testimony about a single email in 

context, in a coherent and continuous sequence. The FTC makes similarly 

baseless objections to completeness designations in the deposition of Eric 

Reifschneider. (Tr. 51:10-52:11; 88:8-14; 126:8-19.) 

• In deposition testimony designated by the FTC, John Grubbs testifies that his 

employer Blackberry 

 (Tr. 94:16-95:2), but the FTC 

has declined to play a short portion of the prior page of the deposition in which 

Mr. Grubbs indicates that he is not 

 (Tr. 93:15-19). 

The FTC’s only basis for its objection is “new question and answer”, which is not 

a proper basis to object to a completeness designation. 

• Mr. Grubbs also testifies, in testimony designated by the FTC, that BlackBerry 

was 

 (Tr. 322:6-11), but in 

response to the very next question, Mr. Grubbs testifies that Blackberry in fact 

had against Qualcomm because it had 

 (Tr. 322:12-22.) The FTC’s only stated basis for objecting is that it 

comprises a “new question and answer”. 

• In deposition testimony designated by the FTC, Nancy Yu, an employee of 

Case 5:17-cv-00220-LHK Document 1075 Filed 01/03/19 Page 4 of 8
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28 QUALCOMM’S HPO RESPONSES FOR JANUARY 4, 2019 TRIAL DAY

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Huawei, provides speculation that there has been no disruption in Huawei’s 

supply of modem chips from Qualcomm only because Huawei had extended its 

license agreement with Qualcomm (Tr. 69:24-70:1), but in response to the next 

question Ms. Yu testifies that, in fact, Huawei has been 

 (Tr. 70:8-9; 12-15). Ms. Yu’s 

latter testimony is necessary to correct the misimpression that Huawei lacks the 

ability to challenge Qualcomm’s licensing terms. 

• In deposition testimony designated by the FTC, Brian Chong, an employee of 

Wistron, testifies that Wistron 

 (Tr. 246:1-4; 250:113-18). The FTC has 

declined to play a short section in which Mr. Chong testifies that 

 

(Tr. 212:11-15; 212:22-213:3.) The FTC’s only stated bases for objecting is that 

the completeness designation is “not in proximity of any designated testimony” 

and is a “new question and answer”, but Mr. Chong’s testimony is necessary to 

avoid the misleading impression that Wistron lacked the ability to negotiate a 

license agreement with Qualcomm because of “pressure” resulting from an 

imminent business opportunity. 

Although the FTC has denominated this as just one HPO, the FTC has objected to several

other completeness designations, making it impractical (and not helpful to the Court) to address 

every single objection in this submission. But those objections all raise the same general issue, 

which is that the FTC is applying the wrong standard for completeness, which if accepted would 

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require small snippets of testimony to be played out of context weeks from now. The rule of 

completeness is designed to avoid such disjointed and misleading presentation of evidence.

The FTC’s HPO No. 1 should be overruled.

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Dated: January 3, 2019 Respectfully submitted,

CRAVATH, SWAINE & MOORE LLP

s/ Gary A. Bornstein

Gary A. Bornstein

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@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

Willard K. Tom

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

Telephone: (202) 739-3000

Facsimile: (202) 739-3001

willard.tom@morganlewis.com

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

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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

Case 5:17-cv-00220-LHK Document 1075 Filed 01/03/19 Page 8 of 8