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MOTION TO QUASH CHRISTOPHER 

JOHNSON TRIAL SUBPOENA 

MATTHEW L. KNOWLES (pro hac vice) 

MCDERMOTT WILL & EMERY LLP 

28 State Street 

Boston, MA 02109 

Telephone: (617) 535-3885 

Facsimile: (617) 321-4608 

mknowles@mwe.com 

JODI L. BENASSI (Bar No. 309048) 

McDermott Will & Emery LLP 

275 Middlefield Road, Suite 100 

Menlo Park, CA 94025-4004 

Telephone: (650) 815-7400 

Facsimile: (650) 815-7401 

jbenassi@mwe.com 

Attorneys for Non-Parties 

BAIN & COMPANY, INC. and CHRISTOPHER JOHNSON

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

NOTICE OF MOTION AND MOTION 

TO QUASH TRIAL SUBPOENA TO 

CHRISTOPHER JOHNSON, AND 

MEMORANDUM IN SUPPORT 

Date: TBD 

Time: 1:30pm 

Courtroom 8, 4th Floor

Hon. Lucy H. Koh 

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NOTICE OF MOTION 

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 

 PLEASE TAKE NOTICE that on a date to be set by this Court, in Courtroom 8 of the 

above-entitled Court, at 1:30p.m., or as soon thereafter as counsel may be heard, Petitioners 

BAIN & COMPANY (“Bain”) and CHRISTOPHER JOHNSON will move pursuant to Fed. R. 

Civ. P. 45(d)(3)(A)-(B) for an order from this Court quashing the Subpoena to Appear and Testify 

at Trial, dated December 4, 2018, that Defendant Qualcomm, Inc. (“Qualcomm”) served on Mr. 

Johnson in connection with this action, Federal Trade Commission v. Qualcomm, Inc., No. 5:17-

CV-00220 LHK (N.D. Cal.). 

 This Motion will be heard in the Courtroom of the Honorable Judge Koh for the United 

States District Court of the Northern District of California, San Jose Division. The Court is 

located at 280 South First Street, San Jose, California 95113. 

Petitioners respectfully submit this Motion on the grounds that the subpoena would 

subject Mr. Johnson to undue burden, given that the testimony Qualcomm seeks is inadmissible, 

and that it improperly seeks expert testimony. Accordingly, the Court should quash the subpoena. 

This Motion is based on the memorandum of points and authorities below, the declaration 

submitted with this Motion, all exhibits attached to it, all other matters of which the Court may 

take judicial notice, and such other matters as may be presented to the Court at the time of the 

hearing. 

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I. INTRODUCTION 

During discovery, Qualcomm served a non-party Rule 30(b)(6) subpoena on Bain. Bain 

has no direct involvement in this case or the underlying dispute; it provided management 

consulting services to Intel Corporation (also a non-party). In response to a motion from Bain, 

Magistrate Judge Cousins sharply limited the scope and duration of the deposition. ECF No. 597. 

Bain then selected Christopher Johnson—a relatively junior Bain partner—as its 

representative for the remaining deposition topics. Bain’s work for Intel was conducted by 

hundreds of consultants in multiple offices around the world. Because of the limits of his own 

first-hand exposure to this work, Mr. Johnson prepared himself to testify about Bain’s corporate 

knowledge by reviewing thousands of pages of Bain and Intel documents, and conducting 

interviews with four Bain consultants from various offices in the United States and Germany. 

 Qualcomm has now issued a non-party trial subpoena to Mr. Johnson individually. This is 

an impermissible gambit. Qualcomm seeks to use this trial subpoena (1) to circumvent the 

prohibition on hearsay and the requirement that witnesses have personal knowledge, and (2) to 

improperly introduce expert testimony on topics like the “[r]easons for Qualcomm’s success in 

the modem chip business,” (Exhibit 1 (Qualcomm exhibit list))1—all from a lay witness who has 

been neither retained nor disclosed as an expert. 

 Rule 30(b)(6) does not create a loophole in the Rules of Evidence. Because Mr. Johnson 

lacks personal knowledge as to the issues in dispute, the subpoena therefore imposes an 

unnecessary burden. The Court should quash it. 

II. BACKGROUND 

In 2017, Qualcomm served a non-party subpoena for documents on Bain. Bain 

cooperated, and produced some 12,829 documents. Benassi Decl. ¶ 4 and Exhibit 2. Next, on 

January 26, 2018, Qualcomm served a Rule 30(b)(6) deposition subpoena on Bain. Exhibit 3. 

The subpoena sought Bain’s understanding and analysis of Intel’s competition with Qualcomm, 

and Bain’s “competitive analysis” of Qualcomm, on a broad range of topics: 

 

1

 Exhibits cited here are attached to the Declaration of Jodi L. Benassi (“Benassi Decl.”), filed 

together with this motion. 

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• “Competition between Intel and any company (including without limitation 

Qualcomm) selling Baseband Processors or other chips for use in Cellular 

Devices. . . .” 

• “The market for Baseband Processors or other chips for use in Cellular Devices. . . .” 

• “Any comparison of Intel’s research and development with Qualcomm’s research and 

development. . . .” 

• “Intel’s business with Apple for the sale of Baseband Processors or other chips for use 

in Cellular Devices. . . .” 

• “Intel’s strategy concerning the use of Baseband Processors or other chips designed 

for use in Cellular Devices for the Internet of Things or Machine to Machine” 

• “Intel’s M&A strategy in the Baseband Processor industry. . . .” 

Exhibit 3. 

On February 23, 2018, Bain moved to quash the Rule 30(b)(6) subpoena on the grounds 

that it imposed a substantial burden on Bain as a non-party; it sought sensitive, competitive 

information without justification; and that Qualcomm improperly sought expert testimony from 

Bain. ECF No. 558. Magistrate Judge Cousins granted the motion in part, striking some topics 

from the subpoena and limiting Bain’s testimony to three hours. ECF No. 597. In particular, the 

Court prohibited Qualcomm from seeking testimony from Bain about Intel’s M&A strategy. Id. 

On March 28, 2018, Mr. Johnson—who became a partner at Bain in 2018—testified on 

behalf of Bain. Months later, on December 4, 2018, Qualcomm served a trial subpoena on Mr. 

Johnson individually. Exhibit 4. Concerned about the scope and burden of the subpoena and the

use of confidential Bain and Intel information at trial, counsel for Bain and Mr. Johnson directed 

Qualcomm to the Court’s order requiring that the parties: 

[D]isclose to each Third Party exactly what either documents or deposition 

testimony or other testimony that you intend to introduce that might implicate their 

trade secrets or their confidential business information[.] 

Exhibit 5 (Trans. of Dec. 13, 2018 hearing at 15:11-15). But Qualcomm sidestepped this request, 

responding simply that it will seek testimony about any topics covered at the deposition and those 

listed in its description of Mr. Johnson on its witness list. See Exhibit 6 (email among counsel 

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discussing subpoena) and Exhibit 7 (Qualcomm witness list). Qualcomm’s “description” would 

include any testimony concerning:

• Anything covered in the Bain deposition; 

• Anything covered in the Bain documents Qualcomm has identified as trial exhibits; 

• Anything related to Bain’s work for Intel; and 

• Anything related to the documents or data introduced into evidence by Qualcomm or 

the FTC as to which Mr. Johnson has knowledge. 

Of course, this is so broad that it amounts to no response at all. Bain and Mr. Johnson now seek 

relief from the Court. 

III. LEGAL STANDARD 

Rule 45(c) requires the party issuing a subpoena to take “reasonable steps to avoid imposing 

undue burden or expense” on the person subject to the subpoena. Fed. R. Civ. P. 45(d)(1). Where a 

subpoena “subjects a person to undue burden,” the Court must issue an order quashing or modifying 

the subpoena. Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv). 

Among other things, courts analyze the potential relevance and admissibility of the 

information sought when evaluating the burden imposed by a subpoena. See Gonzales v. Google, 

Inc., 234 F.R.D. 674, 680 (N.D. Cal. 2006). “Of course, if the sought-after [evidence is] not relevant, 

nor calculated to lead to the discovery of admissible evidence, then any burden whatsoever imposed 

would be by definition ‘undue.’” Id. (quotations omitted). 

“Although the party who moves to quash has the burden of persuasion under Rule 45(c)(3), 

the party issuing the subpoena must demonstrate that the information sought is relevant and material 

to the allegations and claims at issue in the proceedings.” EON Corp. IP Holdings, LLC v. T-Mobile 

USA, Inc., No. 12-CV-080082-LHK PSG, 2012 WL 1980361, at *1 (N.D. Cal. June 1, 2012); 

Chevron Corp. v. Donziger, No. 12-MC-80237-CRB, 2013 WL 4536808, at *4 (N.D. Cal. Aug. 22, 

2013) (same). Courts generally apply the same standard with respect to trials subpoenas. See, e.g., 

Televisa, S.A. de C.V. v. Univision Commc’s, Inc., No. CV 05-3444 PSGMANX, 2008 WL 4951213, 

at *1 (C.D. Cal. Nov. 17, 2008) (with respect to motion to quash a trial subpoena, issuing party has 

burden to demonstrate that the testimony sought is relevant). 

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IV. ARGUMENT 

A. Mr. Johnson’s testimony would inevitably include inadmissible hearsay and 

evidence that is not based on his personal knowledge 

Mr. Johnson began working for Bain starting in early 2010, and he became a partner in 

2018. Exhibit 8 (deposition transcript) at 8:25-9:4. He worked on projects for Bain’s client Intel 

at various times: from 2010 until mid-2011, and again beginning in 2015. Id. at 10:17-19. At 

other times, he worked with other Bain clients and had no involvement with Intel. In contrast, 

Bain has provided consulting services to Intel continuously for at least 11 years. Id. at 10:2-4. 

Because he only has personal knowledge about the work that some Bain offices did on 

some Intel projects during some time periods, Mr. Johnson prepared extensively to learn about 

Bain’s work for Intel, so that he could testify about Bain’s knowledge under Rule 30(b)(6). He 

spent approximately ten days reviewing Bain documents, and conducted substantive interviews 

with four other Bain partners and managers (Michael Schallehn, Danil Traskov, Kayvan Ardalan, 

and Hang Tan). Id. at 13:5-12, 13:23-25. This included interviews with staff from Bain’s 

German offices, because a substantial part of Bain’s work for Intel was performed in Germany—

not San Francisco, where Mr. Johnson is based. 

“A witness may testify to a matter only if evidence is introduced sufficient to support a 

finding that the witness has personal knowledge of the matter. . . .”, Fed. R. Evid. 602, and the 

witness’s testimony must not be hearsay (unless an exception applies), see Fed. R. Evid. 802. 

And again, Rule 30(b)(6) is not a loophole in the hearsay rule or the requirement that a witness 

testify from personal knowledge: 

Rule 30(b)(6) does permit designated persons without personal knowledge to 

testify on behalf of a corporation on matters within the corporation's knowledge, 

further, a corporate designee may testify about not only a corporation's knowledge 

but also its subjective beliefs. These principles are designed to relieve burdens 

imposed on corporate defendants; however, they do not change the rule that a 

30(b)(6) designee cannot offer any testimony at trial to the extent that 

information was hearsay not falling within one of the authorized exceptions. 

Cooley v. Lincoln Elec. Co., 693 F. Supp. 2d 767, 791 (N.D. Ohio 2010) (cleaned up; emphasis 

added); see also Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 435 (5th Cir. 2006) (Rule 

30(b)(6) witness cannot offer hearsay testimony at trial, unless it falls within one of the 

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authorized hearsay exceptions). Likewise, as the Fifth Circuit explained in Union Pump Co. v. 

Centrifugal Tech. Inc.: 

Federal Rule of Civil Procedure 30(b)(6) allows corporate representatives to testify 

to matters within the corporation’s knowledge during deposition, and Rule 

32(a)(3) permits an adverse party to use that deposition testimony during trial. 

However, a corporate representative may not testify to matters outside his 

own personal knowledge to the extent that information is hearsay not falling 

within one of the authorized exceptions.

404 Fed. Appx. 899, 907-08 (5th Cir. 2010); see also Indus. Eng’g & Dev., Inc. v. Static Control 

Components, Inc., No. 8:12-CV-691-T-24-MAP, 2014 WL 4983912, at *4 (M.D. Fla. Oct. 6, 

2014).2

The testimony at Bain’s 30(b)(6) deposition went far beyond Mr. Johnson’s personal 

knowledge. For example, it included testimony about Bain slide decks prepared jointly with Intel 

and bearing Intel’s logo: 

Q. Is it Bain’s practice on the engagement for Intel often to coauthor 

documents with employees from Intel? 

A. Yes. 

Q. And so are documents that appear with an Intel logo on them sometimes 

coauthored by individuals from Bain? 

A. Sometimes, yes. 

Exhibit 8 at 18:4-18:11. Likewise, it included testimony about work done in Bain’s offices in 

Germany: 

Q. Did Bain advise Intel in 2011 that it should consider establishing a leading 

position in high-volume low-end handsets? [. . .] 

A. Some things get lost in translation, I think, because it’s from our team in 

Germany, but yes. . . 

 

2

 Where the witness (and Rule 30(b)(6) designee) is a party, the hearsay analysis is easier because 

much of the testimony comes in as a statement of a party opponent. See, e.g., Brazos River Auth., 

469 F.3d at 435. That exception, of course, does not apply to Bain. Bain respectfully submits that 

the Court should scrutinize the caselaw that Qualcomm will offer in response to this motion, as 

cases permitting Rule 30(b)(6) testimony by parties are inapposite—they are governed by a much 

lower standard, given the party-opponent hearsay rule. 

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Id. at 28:7-15. And it included testimony about analysis compiled from unnamed industry experts 

and public sources: 

Q. What was the approach that Bain took in gathering the data that went into 

this analysis? 

A. [. . .] The Qualcomm numbers would have been [from] a variety of sources. 

Our approach here involved primarily three things. One would be 

anything reported by Qualcomm in their 10-Ks [. . .] A few other data 

points were LinkedIn [. . . ] And then the third would be conducting 

interviews with people who are in the industry to get their perspective 

on, you know, ratios of how many people do you need in integration 

versus that, and triangulating over a number of sources, and get to a – 

an estimate. Hopefully it’s pretty close. 

Id. at 79:18-80:22 (emphasis added). This is not just hearsay—it is double, or triple, or quadruple 

hearsay. It is flatly inadmissible. 

Even if Qualcomm could somehow try to limit its questioning to Mr. Johnson’s own work 

for Intel while at Bain, his knowledge would be inevitably commingled with his extensive Rule 

30(b)(6) preparation. And even if Qualcomm could overcome that problem, Mr. Johnson’s own 

work is not based on direct, personal knowledge but instead amalgamates his analysis with 

(hearsay) sources of data he relied on. See Fed. R. Evid. 602. Accordingly, it is inadmissible. 

B. Mr. Johnson’s opinions and analyses are not admissible as lay witness 

opinions 

Qualcomm may assert (as it did with respect to the deposition subpoena) that the 

testimony it seeks is admissible as lay opinion testimony under Rule 701. But this rule does not 

apply to opinions that are “based on scientific, technical, or other specialized knowledge,” such as 

the opinions of analysts and consultants like Mr. Johnson. See Fed. R. Evid. 701(c). Nor can 

Qualcomm seek involuntary expert discovery by simply re-characterizing opinions as “facts.” 

Most of all, as the Court has emphasized in its earlier orders, lay opinion testimony may 

be permitted under Rule 701 only if the testimony is “rationally based on the witness’s 

perception.” See ECF No. 973 (quoting Fed. R. Evid. 701). Rule 701 does not permit a witness 

to repeat analyses and observations he learned from others (such as the interviews Mr. Johnson 

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conducted and documents he read in preparation for the 30(b)(6) deposition). Instead, the Rules 

of Evidence require personal knowledge for non-expert witnesses. See United States v. Vera, 770 

F.3d 1232, 1242 (9th Cir. 2014) (A lay opinion witness “may not testify based on speculation [or] 

rely on hearsay. . . .”). But here, Mr. Johnson’s direct personal knowledge about the wireless 

modem market is limited: 

Q. Are you an engineer? 

A. I am not. 

Q. Did you ever work for a semiconductor company? 

A. Not directly. 

Q. Now, Bain doesn’t design chipsets, does it? 

A. No. 

Q. It doesn’t sell chipsets? 

A. We do not. 

Q. It doesn’t manufacture chipsets? 

A. We do not. 

Q. Would you defer to a chipset maker such as Intel for their technical 

expertise with regard to the design, sale, manufacture of chipsets? [. . .] 

A. I would. 

Exhibit 8 at 134:3-134:22. 

Analysis and advice from management consultants amounts to the opinions of experts. 

Bain’s advice to Intel was compiled from public and private sources, examined and applied using 

the experience and expertise of Bain’s management consultants. While this advice is of great 

value to Bain’s clients, the Rules of Evidence make clear that it is simply not admissible. 

C. Mr. Johnson cannot be compelled to give expert testimony 

Finally, there should be no question that Qualcomm cannot elicit expert testimony from 

Mr. Johnson, who has not been retained or designated as an expert. Rule 45 recognizes that it is 

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inappropriate to seek expert analysis or opinion testimony from an unretained expert. See Fed. R. 

Civ. P. 45(d)(3)(B); see also Verinata Health, Inc. v. Sequenom, Inc., No. 12-CV-00865, 2014 

WL 2600367, at *2 (N.D. Cal. June 10, 2014) (quashing subpoena that requires disclosure of 

“unretained expert opinions” about the “composition and dynamics of the market” in question). 

Accordingly, the Court should quash this subpoena as it requires “disclosing an unretained 

expert’s opinion or information that does not describe specific occurrences in dispute and results 

from the expert’s study that was not requested by a party.” Fed. R. Civ. P. 45(d)(3)(B). Mr. 

Johnson has never worked for or with Qualcomm, nor was his work performed for any party in 

this case. Just as a medical malpractice plaintiff cannot use Rule 45 to secure free expert 

testimony from any doctor who happens to study the disease the plaintiff is afflicted with, 

Qualcomm cannot use Rule 45 to get expert analysis from any consultant who studies and advises 

on the marketplace it happens to be litigating about. Yet much of the testimony Qualcomm seeks 

here is exactly that. 

V. CONCLUSION 

If Qualcomm seeks to introduce evidence about Qualcomm’s products and its actions in 

the marketplace, it should do so through Qualcomm witnesses. If it seeks information about 

Apple, it should call Apple witnesses. If it seeks information about Intel, it should call Intel 

witnesses. If it seeks independent expert analysis about the products and markets at issue, it 

should retain and present an expert witness. But Qualcomm’s effort to dragoon a Bain partner to 

provide a combination of corporate testimony and quasi-expert analysis is inappropriate. 

Even if it were somehow relevant, Mr. Johnson’s testimony would not be based on 

personal knowledge—it would be hearsay and improper evidence from a lay witness. As noted 

above, where “the sought-after [evidence is] not relevant, nor calculated to lead to the discovery 

of admissible evidence, then any burden whatsoever imposed would be by definition ‘undue.’” 

Gonzales, 234 F.R.D. at 680 (quotations omitted). That is exactly the case here. The Court 

should quash Qualcomm’s subpoena. 

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Respectfully submitted, 

/s/ Matthew L. Knowles 

MATTHEW L. KNOWLES (pro hac vice) 

mknowles@mwe.com 

MCDERMOTT WILL & EMERY LLP 

28 State Street 

Boston, MA 02109 

Telephone: (617) 535-3885 

Facsimile: (617) 321-4608 

JODI L. BENASSI (Bar No. 309048) 

jbenassi@mwe.com 

MCDERMOTT WILL & EMERY LLP 

275 Middlefield Road, Suite 100 

Menlo Park, CA 94025-4004 

Telephone: (650) 815-7400 

Facsimile: (650) 815-7401 

Attorneys for Non-Parties 

BAIN & COMPANY, INC. and CHRISTOPHER JOHNSON

Dated: December 21, 2018 

ATTESTATION 

I, Jodi L. Benassi, am the ECF User whose ID and password are being used to file this 

document. In compliance with N.D. Cal. Civil L.R. 5-1(i)(3), I hereby attest that concurrence in 

the filing of the document has been obtained from Matthew L. Knowles. 

By: /s/ Jodi L. Benassi 

 Jodi L. Benassi 

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