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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

 

REPLY IN SUPPORT OF NON-PARTIES 

BAIN & COMPANY, INC.’s AND 

CHRISTOPHER JOHNSON’s 

MOTION TO QUASH TRIAL SUBPOENA 

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Non-parties Bain & Company, Inc. (“Bain”) and Christopher Johnson respectfully submit 

this reply in support of their motion (ECF No. 1041) to quash the trial subpoena that Defendant 

Qualcomm Incorporated (“Qualcomm”) issued to Mr. Johnson. 

INTRODUCTION 

Qualcomm’s opposition brief illustrates precisely why the Court should grant the motion. 

In explaining why the testimony it seeks from Mr. Johnson is relevant, Qualcomm describes the 

subject matter that it plans to cover: 

• Whether Qualcomm or Intel was more efficient with respect to its chip design and other 

research and development spending; (Opp. at 2, 6) 

• Whether consolidation in the modem chip industry was the result of the scale limitations 

inherent in the industry; (Opp. at 6) 

• What number of modem chip suppliers would be sustainable, in light of consumer 

demand; (Opp. at 3) 

The answers to these questions plainly amount to expert opinion and analysis—not lay testimony 

from a percipient witness. In fact, Qualcomm’s brief even compares Bain’s opinions with those 

of the FTC’s retained expert witness, Professor Carl Shapiro, and argues that Bain’s views rebut 

Professor Shapiro’s opinions. Opp. at 6. 

Qualcomm’s effort to subpoena a non-party management consultant to offer this expert 

testimony is improper. If this were permissible under the rules, it would mean that any professor 

who has studied a particular field could be haled into court to testify in any case where that field 

is at issue. It would mean that any doctor or scientist who studies a disease could be subpoenaed 

to testify about past work analyzing and researching the disease, if the disease is relevant to the 

case. For good reason, the rules require parties to retain their expert witnesses, not conscript 

them. 

Nor can this testimony come in as a “lay” opinion. Qualcomm argues to the contrary 

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because Mr. Johnson’s opinions stem from “particularized knowledge” he has “by virtue of his 

. . . position in the business.” Opp. at 12 (citing Fed. R. Evid. 701 note (2000)). But if the Court 

were to read “the business” as broadly as Qualcomm proposes, this approach would swallow the 

rule (nearly all expert witnesses are, of course, professionals in their field of study). Likewise, 

lay opinion testimony is permitted only when based on personal knowledge. See Fed. R. Evid. 

602. As Mr. Johnson testified at his deposition, his and Bain’s opinions are based on analysis, 

interviews, and research: 

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

over a number of sources, and get to a – an estimate. Hopefully it’s pretty close. 

ECF No. 1041-9 at 79:18-80:22. 

Indeed, lack of personal knowledge is fatal here. Even setting aside the question of expert 

opinions, Mr. Johnson cannot testify about the personal knowledge of others at Bain. There is no 

such thing as a Rule 30(b)(6) trial subpoena. Qualcomm faults Bain for citing “out-of-circuit case 

law” for the proposition that a Rule 30(b)(6) designee cannot offer hearsay testimony. Opp. at 10. 

But Qualcomm asks the Court to look past two published decisions from the Fifth Circuit, and 

directs the Court instead to a decision from Illinois where a Magistrate Judge essentially applied a 

balancing test on this question, while emphasizing the risks of non-party corporate testimony. 

Sara Lee Corp. v. Kraft Foods Inc., 276 F.R.D. 500, 503 (N.D. Ill. 2011). 

Finally, Qualcomm complains that it is being “whipsaw[ed]” because there is no trial 

equivalent to Rule 30(b)(6). Qualcomm misunderstands the important difference between 

discovery and trial. The rules of discovery allow broad fact-finding, without strict limitations on 

admissibility. Trial, of course, is much different. The drafters of the Rules of Civil Procedure 

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and Evidence provided for the Rule 30(b)(6) mechanism in discovery, but not at trial. Qualcomm 

asks the Court to ignore this distinction, and read an equivalent to Rule 30(b)(6) into the Rules of 

Evidence. 

Mr. Johnson is not a party. His employer is not a party. His employer’s client is not a 

party. It is unfair—and unduly burdensome—to require that he attend and testify at trial, 

particularly after he already spent the time to prepare and testify as a Rule 30(b)(6) witness. 

Qualcomm is correct in one regard, however: that there is a ready solution to this problem. 

Playing Mr. Johnson’s videotaped deposition in lieu of live testimony would alleviate the burden 

on him, while permitting Qualcomm to offer its evidence and the FTC to raise any objections. 

ARGUMENT 

1. Qualcomm cannot use a non-party trial subpoena to secure free expert testimony 

from Bain and Mr. Johnson 

Rule 45 authorizes the Court to quash a subpoena where compliance 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)(ii). As the notes to the rule make clear, this provision was adopted to address exactly 

what Qualcomm is attempting to do here: “[a] growing problem has been the use of subpoenas to 

compel the giving of evidence and information by unretained experts.” Id. note (1991). The 

notes to Rule 45 suggest the Court consider several factors: 

• “the degree to which the expert is being called because of his knowledge of facts relevant 

to the case rather than in order to give opinion testimony;” 

• “the difference between testifying to a previously formed or expressed opinion and 

forming a new one;” 

• “the possibility that, for other reasons, the witness is a unique expert; the extent to which 

the calling party is able to show the unlikelihood that any comparable witness will 

willingly testify;” 

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• “and the degree to which the witness is able to show that he has been oppressed by having 

continually to testify.” 

Id. (citing Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976)). The bulk of these factors

counsel strongly in favor of quashing the subpoena. Mr. Johnson is a management consultant; 

there are others who would be better suited to testify about the facts concerning Qualcomm’s or 

Intel’s chip development. Indeed, his knowledge is second, third, or fourth hand in this regard, 

and he has no scientific or technical training. See ECF No. 1041-9 at 134:3-134:22. Likewise, 

the parties in this case have had no trouble locating and retaining an impressive roster of experts. 

There is nothing unique about the information Bain or Mr. Johnson have here. And this will be 

the second time that Mr. Johnson will have to testify in this case. 

Qualcomm argues halfheartedly that Bain has somehow waived this argument because it 

did not appeal Magistrate Judge Cousin’s order limiting the scope and duration of Mr. Johnson’s 

deposition, but Qualcomm offers no authority for this proposition. See Opp. at 12. In any case, 

this badly misses the mark. Magistrate Judge Cousins granted in part and denied in part Bain’s 

motion to quash the Rule 30(b)(6) subpoena, and limited the time of the deposition, documents to 

be used, and topics. The order (made after submission of a joint dispute letter, without full 

briefing) did not include a memorandum of decision, and the order did not discuss the question of 

expert testimony. In any event, this was a ruling on a different motion concerning a different 

subpoena to a different entity (a Rule 30(b)(6) deposition subpoena to Bain as opposed to this 

trial subpoena to an individual). Here, the record before the Court includes both what Mr. 

Johnson’s testimony was at deposition and what Qualcomm seeks to elicit at trial. 

2. Mr. Johnson’s testimony is not admissible as a lay opinion 

Qualcomm argues that Bain’s and Mr. Johnson’s opinions are admissible under Rule 701 

as lay opinions. This argument fails for two reasons. First, lay opinion testimony cannot be 

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“based on . . . technical, or other specialized knowledge within the scope of Rule 702.” But 

Qualcomm seeks Mr. Johnson’s testimony on topics like the efficiency of certain chip designs, 

the effect of R&D spending, and consolidation in the modem chip industry based on consumer 

demand. See Opp. at 2-3, 6. It is difficult to conceive how a lay person could testify about these 

topics at all, or how anyone could opine on them without technical or specialized knowledge. 

The 2000 note to Rule 701 cites with approval a discussion of the difference between lay 

and expert testimony in a Tennessee case, State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992):

In Brown, the court declared that the distinction between lay and expert witness 

testimony is that lay testimony “results from a process of reasoning familiar in 

everyday life,” while expert testimony “results from a process of reasoning which 

can be mastered only by specialists in the field.” 

Fed. R. Evid. 701 note (2000). Applying this approach here yields a clear answer: the testimony 

Qualcomm seeks does not result from “a process of reasoning familiar in everyday life,” but 

rather the views of a management consultant based on his and his firm’s analyses, developed by 

specialists in their fields. It is expert opinion testimony, not lay opinion testimony. 

Qualcomm relies far too heavily on part of a comment in the 2000 note to Rule 701 stating 

that one factor is whether the opinion stems from “the particularized knowledge that the witness 

has by virtue of his or her position in the business.” Id. Qualcomm stretches this to suggest that 

as long as the witness developed particularized knowledge through his or her work, the witness 

may offer lay opinions about it under Rule 701. This, of course, is not the law: it would create an 

exception that swallows Rule 702 (expert opinion testimony). Doctors, scientists, forensic 

accountants—in fact, nearly all experts—develop their specialized knowledge through their 

professional expertise. The sentences before and after this quote in the note make clear that it is 

discussing far different scenarios, such as allowing an owner or officer of a business to testify 

about that business’s value or projected profits, or allowing a lay witness familiar with an illegal 

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drug to testify that a substance appeared to be that drug (but not to give testimony about how the 

drug was manufactured or distributed). Id. Similarly, the fact that Qualcomm’s questions might 

go primarily to analyses that Bain has completed in the past (rather than new analyses) does not 

matter. After all, the same could be true of researchers and scientists who have spent their careers 

studying a particular field. 

The second problem with the lay opinion theory is that neither Bain nor Mr. Johnson truly 

have personal knowledge about these topics. Rule 602 provides that “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. The rule notes that this requirement does not apply 

to expert testimony under Rule 703. Id. Accordingly, it is clear that lay opinion testimony under 

Rule 701 must be based on personal knowledge. Qualcomm essentially admits that this is not the 

case here: “Bain reviewed publicly available information, marketplace surveys and information 

provided by Intel. . . .” Opp. at 12; see also id. at 9 (“he will testify regarding Bain’s independent 

analysis, which was generated drawing on information Bain (and Mr. Johnson) may have learned 

from others.”). Of course, publicly available information, market place surveys, and information 

provided by one’s client is not personal knowledge.1

A final example illustrates this point. Qualcomm’s brief references Bain’s 2012 

competitive analysis of research spending between Qualcomm and Intel. Opp. at 3. Yet Mr. 

Johnson was not even working on an Intel project at this time—this study was the work of others 

at Bain, and he could not have personal knowledge of it. See ECF No. 1041-9 at 10:17-19 (Mr. 

 

1

 On this point, Qualcomm attacks Bain’s “failure” to attach an affidavit from Mr. Johnson 

denying that he has personal knowledge. See Opp. at 8. Bain attached and cited excerpts from 

Mr. Johnson’s sworn deposition testimony, where he was questioned by Qualcomm’s lawyer. 

Mr. Johnson’s sworn testimony provides the factual basis for the motion. 

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Johnson worked on Intel projects from early 2010 until mid-2011, then again for the last threeand-a-half years). 

3. Mr. Johnson cannot testify to the personal knowledge of other Bain employees that 

he learned second-hand while preparing for the deposition 

Qualcomm argues that the Court should permit Mr. Johnson to testify about the personal 

knowledge of other Bain employees, which he learned while preparing to testify as a Rule 

30(b)(6) witness. See ECF No. 1041-9 at 13:5-12 (to prepare for his Rule 30(b)(6) deposition, 

Mr. Johnson reviewed scores of Bain documents and then interviewed four Bain consultants). 

Qualcomm asks the Court to look past the holdings of cases such as Brazos River Auth. v. GE 

Ionics, Inc., 469 F.3d 416, 435 (5th Cir. 2006) (a Rule 30(b)(6) witness cannot offer hearsay 

testimony at trial, unless it falls within one of the authorized hearsay exceptions) and Union Pump 

Co. v. Centrifugal Tech. Inc., 404 Fed. Appx. 899, 907-08 (5th Cir. 2010) (“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.”). Instead, Qualcomm 

directs the Court to an opinion from Illinois in which the Magistrate Judge adopted what amounts 

to a balancing test on this question: 

Given that some of [the witness’s] testimony may be admitted based on the 

corporate knowledge of [his employer], the next question is how far the concept of 

“corporate knowledge” can be stretched. Few courts have addressed this issue, but 

the purposes underlying Rule 30(b)(6) must be balanced against the real dangers of 

admitting testimony based on hearsay. . . If he could, Rule 30(b)(6) would severely 

undercut the requirement, fundamental to our adversary system, that fact witnesses 

have personal knowledge of the matters upon which they testify.

The dangers of testimony based on corporate knowledge multiply where the Rule 

30(b)(6) witness is a third party rather than an opposing party. . . 

Sara Lee Corp., 276 F.R.D. at 503 (internal citations omitted). In any case, it is not clear where 

the textual basis for this balancing test arises. As Brazos River and Union Pump make clear, the 

hearsay rule applies to testimony by individuals previously designated under Rule 30(b)(6). 

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Similarly, Qualcomm cites the Seventh Circuit’s decision in Agfa-Gevaert, A.G. v. A.B. 

Dick Co., 879 F.2d 1518 (7th Cir. 1989) for the proposition that “[b]usiness executives do not 

make assessments of a product’s quality and marketability by inspecting the product at first hand. 

Their assessments are inferential, and as long as they are the sorts of inference that businessmen 

customarily draw they count as personal knowledge, not hearsay.” Id. at 1523. However, formal 

interviews conducted to prepare for a Rule 30(b)(6) deposition hardly amount to the sort of 

inference that businesspeople customarily draw in their everyday lives. Even if Mr. Johnson 

could testify about what he concluded from his own analysis of independent research, to say he 

could interview colleagues and then inherit their personal knowledge as his own would be to 

stretch this term beyond any meaning. 

The other cases that Qualcomm cites are also unavailing. For example, in Fed. Trade 

Comm’n v. Sysco Corp., 113 F. Supp. 3d 1, 40-41 (D.D.C. 2015); AD/SAT, Div. of Skylight, Inc. 

v. Assoc. Press, 181 F.3d 216, 227-28 (2d Cir. 1999); Fed. Trade Comm’n v. CCC Holdings, Inc., 

605 F. Supp. 2d 26, 73-74 (D.D.C. 2009); and Red Lion Med. Safety, Inc. v. Ohmeda, Inc., 63 

F.Supp. 2d 1218, 1228 (E.D. Cal. 1999), the consulting firms were working on behalf of parties to 

the case. See id. Each involved a written report or exhibit, rather than trial testimony by an 

individual witness. And none of these cases discusses or analyzes whether the reports in question 

are hearsay.2

The clear balance of the case law points in one direction: Rule 602 means what it says, 

and courts should not infer an equivalent to Rule 30(b)(6) in the Rules of Evidence when the 

drafters did not include one. See, e.g., Union Pump Co., 404 Fed. Appx. at 907-08. Thus, even 

 

2

 In fact, the characterization of the McKinsey report at issue in Sysco Corp. is telling with respect 

to Bain’s objection about improper expert testimony, supra. See 113 F. Supp. at 41 (“McKinsey 

is not the only industry analyst or expert to acknowledge that national customers form a market 

distinct from local buyers.” (emphasis added)). 

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as to the testimony that Qualcomm characterizes as “factual” (see Opp. at 12), the Court should 

not waive the personal knowledge requirement in Rule 602 merely based on the discovery 

method (i.e., Rule 30(b)(6)) that Qualcomm used to collect it. 

4. The subpoena imposes an undue burden because the testimony it seeks is 

inadmissible 

Without question, testifying at trial would impose a burden on Mr. Johnson. He has 

already spent days preparing to testify as Bain’s Rule 30(b)(6) witness and then giving that 

deposition. Neither his employer nor his employer’s client is a party in the case. Qualcomm now 

asks that Mr. Johnson take even more time away from his clients and his work to be on standby to 

testify at trial. 

Of course, many witnesses have to bear the burden of testifying—the system requires it to 

function. The reason the burden here is undue is that the testimony Qualcomm seeks is 

inadmissible. 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.’” (quotations 

omitted)); Compaq Computer Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335 (N.D. Cal. 

1995) (similar). 

Bain has no objection to Qualcomm’s alternative proposal to present Bain’s Rule 30(b)(6) 

testimony by video, as this would alleviate the burden on Mr. Johnson. Bain is based in Boston, 

well over 100 miles from the courthouse. Likewise, as to Mr. Johnson individually, Federal Rule 

of Civil Procedure 32 empowers the Court to allow video testimony even from a witness who 

lives within 100 miles in exceptional circumstances when doing so is consistent with the interest 

of justice. See Fed. R. Civ. P. 32(a)(4)(E). 

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CONCLUSION 

The standards and rules for discovery and trial are different. Qualcomm’s request to use 

non-party Rule 30(b)(6) testimony at trial ignores this distinction. Rule 30(b)(6) is a powerful 

fact-finding device, but the drafters did not incorporate a corresponding provision in the rules that 

govern evidence at trial. The Court should not infer one here. This is especially important where 

Qualcomm seeks opinion testimony about complex topics that plainly amount to expert rather 

than lay opinions. In fact, Qualcomm seeks not just Mr. Johnson’s expert opinions, but rather 

asks him to testify about the expert opinions of his entire firm. Accordingly, Bain respectfully 

submits that the Court should quash the trial subpoena that Qualcomm issued to Mr. Johnson. 

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: January 2, 2019 

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FILER’S ATTESTATION 

I 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, who signed the document. 

By: /s/ Jodi L. Benassi 

Jodi L. Benassi 

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