FTC’S OPP. TO QUALCOMM MOTION IN

LIMINE TO EXCLUDE LGE TESTIMONY

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

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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 

Daniel Matheson, D.C. Bar No. 502490 

Aaron Ross, D.C. Bar No. 1026902 

Mark J. Woodward, D.C. Bar No. 479537 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (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, 

vs. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

Defendant. 

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

PLAINTIFF FEDERAL TRADE 

COMMISSION’S OPPOSITION TO 

QUALCOMM’S MOTION IN LIMINE 

NO. 2 TO EXCLUDE LG TESTIMONY 

Date: December 13, 2018 

Time: 1:30 p.m. 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1008 Filed 12/17/18 Page 1 of 5
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FTC’S OPP. TO QUALCOMM MOTION IN

LIMINE TO EXCLUDE LGE TESTIMONY

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

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The Court should reject Qualcomm’s attempt to exclude the written testimony of LG 

Electronics, Inc. (“LGE”) witnesses pursuant to this Court’s Letter of Request (“Request”). See 

ECF No. 944 (“Mot.”). This testimony is admissible under Fed. Rule of Evid. 804(b)(1) and 807. 

I. The LGE Witnesses’ Testimony is Admissible Under Rule 804(b)(1) 

Qualcomm’s objections to the admission of the LGE witnesses’ written testimony 

pursuant to Rule 804(b)(1) do not withstand scrutiny. First, it is irrelevant that the LGE 

employees provided written rather than oral testimony. Their testimony was sworn pursuant to 

Korean law, and thus satisfies Fed. R. Civ. P. 28. See generally Fed. R. Civ. P. 28(b); ECF 944-2 

(Mar. 30, 2018 Cover Letter), at 3 (“This written testimony is sworn under the oath which would 

be administered by a Korean court enforcing a Hague Convention request.”); see also United 

States v. Salim, 855 F.2d 944, 953 (2d Cir. 1988) (“[A] deposition taken abroad pursuant to 

foreign law, but in conformity with Rule 28, would appear to be taken in compliance with law for 

purposes of the former testimony exception to the rule against hearsay.”) (quotation marks 

omitted). SEC v. Jasper, 678 F.3d 1116 (9th Cir. 2012), and Thorson v. Aviall Services, 2018 WL 

1426971 (N.D. Tex. Mar. 22, 2018), are inapposite—neither case concerns foreign testimony. 

Second, Qualcomm’s suggestion that it has had no opportunity to cross-examine LGE’s 

witnesses is incorrect—Qualcomm has conducted cross-examination. After receiving the FTC’s 

draft Request, Qualcomm spent two weeks drafting 146 of its own questions, which were 

included in the Request. Milici Decl. ¶ 5. Consequently, Qualcomm did not oppose the FTC’s 

filing and did not argue that it was being denied cross-examination. See Unopposed Mot. to 

Approve Req. for Int’l Judicial Assistance, Jan. 5, 2018, ECF No. 448. The Court approved the 

request, ECF No. 460, which was then forwarded to the Korean Central Authority.

LGE responded to Qualcomm’s questions in the same fashion and just as fully as it 

responded to the FTC’s questions. Compare, e.g., Milici Decl. Ex. 1, Testimony of Tony 

(Taekwon) Son, ¶¶ 1-23 (responses to FTC questions) with id. ¶¶ 24-107 (responses to 

Qualcomm questions); see also Milici Decl. ¶ 5 (explaining which questions each party added to 

the Request). The witnesses sometimes answered “[t]he information is not available” in response 

to questions drafted by both the FTC and Qualcomm. See, e.g., id. ¶¶ 16, 18 (declining to answer 

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FTC’S OPP. TO QUALCOMM MOTION IN

LIMINE TO EXCLUDE LGE TESTIMONY

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certain FTC questions). Indeed, the Request did not identify which party proposed any question, 

and Qualcomm offers no reason to believe it was treated unfairly. 

Qualcomm suggests that the absence of live cross-examination is ipso facto a denial of 

any cross-examination. But an opportunity to add written examination questions to a Request is

an adequate opportunity for cross. See United States v. Trout, 633 F. Supp. 150, 152 (N.D. Cal. 

1985) (noting, where the Court “authorized [Plaintiff] to append to the letters rogatory crossexamination questions that should be asked subsequent to the questions posed by defendant,” 

Plaintiff was “therefore incorrect in arguing, for purposes of the Court’s application of Fed. R. 

Evid. 804(b)(1), that it would be unable to conduct direct, cross, or redirect examination”) 

(quotation marks omitted).1

 Qualcomm spent two weeks writing nearly 150 questions which 

LGE’s witnesses fairly answered; the notion that Qualcomm has been denied its opportunity for 

cross-examination is incorrect.2

II. LGE Witnesses’ Written Testimony is Admissible Under Rule 807 

Even accepting arguendo Qualcomm’s claim that LGE’s testimony is not admissible 

under Rule 804, it would still be admissible under Rule 807. Rule 807 provides for a “residual” 

exception to the rule against hearsay, citing four relevant factors: (i) “trustworthiness,” (ii) 

materiality, (iii) whether it is more probative than other evidence that the proponent can obtain 

through reasonable efforts, and (iv) the interests of justice. “[T]he trial judge has a fair degree of 

 

1 United States v. Cohen is distinguishable because in that case the witness’s testimony 

“addressed very few of those questions” which had been submitted. No. 08-3282, No. 08-3282, 

2012 WL 289769, at *4 (C.D. Ill. Jan. 31, 2012); see also FTC’s Opp. to Qualcomm MIL No. 1 

(further discussing Cohen). Here, the LGE witnesses gave fulsome responses to Qualcomm’s 

questions. And United States v. Wilson, 36 F. Supp. 2d 1177 (N.D. Cal. 1999), concerns the use 

of a civil deposition at a later criminal trial, which is wholly irrelevant here. Id. at 1179. 

2

 Qualcomm’s complaint that the procedure used to generate LGE’s response does not exactly 

match the procedure identified in the Request, Mot. at 1, is similarly misplaced. Letters of 

Request are requests; the request need not be followed to the letter. See, e.g., In re Urethane 

Antitrust Litig., 267 F.R.D. 361, 366–67 (D. Kan. 2010) (“[D]efendants ask the court to include a 

request that the parties be permitted to conduct the examinations of the witnesses, or at a 

minimum, allow counsel to conduct a cross-examination . . . The German courts do not permit 

cross-examination, however. . . . The court believes it is probably futile to ask the German courts 

to permit the parties to cross-examine the witnesses. But since this request is unopposed, the court 

nonetheless will include it in the letters.”) (citations and internal quotation marks omitted). 

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FTC’S OPP. TO QUALCOMM MOTION IN

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latitude in deciding whether to admit statements” under this rule. United States v. Valdez-Soto, 

31 F.3d 1467, 1471 (9th Cir. 1994). 

Of the four Rule 807 factors, Qualcomm contests only the “trustworthiness” of the 

witnesses’ testimony, but this argument fails because “the opportunity to examine the declarant 

provides safeguards similar to the circumstantial guarantees of trustworthiness found in other 

exceptions to the hearsay rule.” Mot. at 2-3 (quoting In re Paducah Towing Co., 692 F.2d 412, 

418 (6th Cir. 1982)). Qualcomm has already conducted a written cross-examination. See supra § 

I. Other courts admit non-party affidavits in similar circumstances. E.g., FTC v. Amy Travel 

Serv., Inc., 875 F.2d 564, 576 (7th Cir. 1989) (non-party affidavits admitted where “each was 

made under oath subject to perjury penalties,” the affiants described “facts about which they ha[d] 

personal knowledge,” and the defendants were “given proper notice” and “even had a chance to 

question the affiants themselves”); Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 

F.3d 79, 113 (3d Cir. 2001). 

The other three Rule 807 factors cannot seriously be disputed. Qualcomm does not and 

cannot deny that LGE’s witnesses’ testimony is material. The fact that both parties employed the 

letter of request process demonstrates that neither could, through reasonable efforts, obtain 

evidence that is more probative of LGE’s interactions with Qualcomm. And the interests of 

justice are best served by considering evidence third parties have voluntarily provided—not by 

excluding it. LGE’s status as a Qualcomm licensee and customer does not render it an 

“interested” party whose testimony should be excluded; if it were, testimony by victims of 

antitrust violations would rarely be admissible. Qualcomm suggests that LGE’s testimony is 

similar to Valley Engineers Inc. v. Electric Engineering Co., 158 F.3d 1051 (9th Cir. 1998)—in 

which a party hid “smoking gun” evidence and was sanctioned for its “lies”—but this is 

unwarranted. Here, not only has LGE voluntarily answered the questions Qualcomm added to the 

Request, LGE has provided document discovery to Qualcomm as well. See Milici Decl. Ex. 2.3

 

 

3

 Qualcomm’s reliance on an email in which the FTC reserved the right to object to testimony at 

trial from a third party that refused to produce documents or provide testimony in discovery is 

thus wholly misplaced. LGE has provided both documents and testimony. Moreover, the FTC’s 

reservation of a right to raise an evidentiary objection does not modify the rules of evidence. 

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FTC’S OPP. TO QUALCOMM MOTION IN

LIMINE TO EXCLUDE LGE TESTIMONY

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

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Dated: December 3, 2018 

Respectfully submitted, 

FEDERAL TRADE COMMISSION, 

/s/ Jennifer Milici 

Jennifer Milici 

J. Alexander Ansaldo 

Joseph R. Baker 

Daniel Matheson 

Aaron Ross 

Mark J. Woodward 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Federal Trade Commission 

Case 5:17-cv-00220-LHK Document 1008 Filed 12/17/18 Page 5 of 5