PLAINTIFF FTC’S RESPONSE TO

QUALCOMM’S BRIEF RE OFFER OF PROOF

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Jennifer Milici, D.C. Bar No. 987096

J. Alexander Ansaldo, Va. Bar No. 75870

Joseph R. Baker, D.C. Bar No. 490802

Elizabeth A. Gillen, Cal. Bar No. 260667

Daniel Matheson, D.C. Bar No. 502490

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-NMC

PLAINTIFF FEDERAL TRADE 

COMMISSION’S RESPONSE TO 

QUALCOMM’S BRIEF RE OFFER OF 

PROOF

Case 5:17-cv-00220-LHK Document 1426 Filed 01/24/19 Page 1 of 6
1

PLAINTIFF FTC’S RESPONSE TO SUBMIT 

QUALCOMM’S BRIEF RE OFFER OF PROOF

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

At the close of Trial Day 8 on January 22, 2019, Qualcomm disclosed for the first time 

that it intends to submit a written offer of proof outlining post-discovery evidence that it would 

have offered at trial but for the Court’s prior orders enforcing the March 30, 2018 discovery 

cutoff in this case.

1 Following a meet and confer on January 23, 2019, Qualcomm filed a brief 

requesting the opportunity to submit its offer of proof early on Trial Day 9, January 25, 2019. See 

Qualcomm’s Brief Re Offer of Proof (ECF No. 1394). Qualcomm’s proposed offer of proof is 

unnecessary and as framed, could allow Qualcomm to bypass other requirements for 

admissibility, including compliance with the Court’s disclosure deadlines.

As an initial matter, an offer of proof is not necessary in response to the Court’s prior 

orders because those orders were not tentative or without prejudice. See United States v. 

McElmurry, 776 F.3d 1061, 1066 n.24 (9th Cir. 2015) (citing Fed. R. Evid. 103(b)) (“Once the 

court rules definitively on the record, either before or at trial, a party need not renew an objection 

or offer of proof to preserve a claim of error for appeal.”); see also Heyne v. Caruso, 69 F.3d 

1475, 1481 (9th Cir. 1995) (no offer of proof required where “an entire class of evidence has been 

in advance formally declared inadmissible by the trial court”). The general substance of the postdiscovery evidence excluded by the Court’s orders is apparent from the context of the orders and 

the briefing that preceded it: multiple Qualcomm briefs described the general types of postdiscovery evidence that Qualcomm proposed to introduce at trial (although they did not fully 

encompass the specific exhibits that Qualcomm now says it wants to offer). See ECF Nos. 873, 

929, 933 (seeking to introduce post-discovery license agreements and documents reflecting 

purported post-discovery market developments); see also Fed. R. Evid. 103(a)(2). As the Court 

noted at trial, two post-discovery license agreements have already been attached under seal to 

prior briefing. See ECF Nos. 791-7, 1206 at 2 (order sealing Exs. 3-7).

In addition, as framed, Qualcomm’s proposed offer of proof would make an end-run 

around other requirements for admissibility, including compliance with the Court’s case-

 1 See Order Denying Qualcomm’s Request to Introduce Evidence of Post-Discovery Events (ECF 

No. 997, Dec. 13, 2018); Order Granting the FTC’s Motion to Exclude Expert Testimony of Prof. 

Nevo (ECF No. 1015, Dec. 17, 2018); Order Granting FTC’s Third Motion in Limine (ECF No. 

995, Dec. 13, 2018).

Case 5:17-cv-00220-LHK Document 1426 Filed 01/24/19 Page 2 of 6
2

PLAINTIFF FTC’S RESPONSE TO SUBMIT 

QUALCOMM’S BRIEF RE OFFER OF PROOF

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

management procedures. Qualcomm’s proposed proffer includes documents that it never included

on its exhibit list and which lack a sponsoring witness, are hearsay, or are otherwise not 

admissible.

The Court has broad discretion to set deadlines and other procedures for case 

management, see, e.g., Navellier v. Sletten, 262 F.3d 923, 941-42 (9th Cir. 2001), and the Court 

set clear requirements for pre-trial disclosures and evidentiary limits in this case. See, e.g., ECF 

No. 922 (“By November 27, 2018, the parties shall exchange a final pretrial list of up to 450 

exhibits per side.”). In spite of these requirements, Qualcomm now seeks to submit an offer of 

proof involving documents that were not disclosed on Qualcomm’s November 27 exhibit list—

even though the Court’s mid-December orders denying Qualcomm’s request to introduce postdiscovery evidence post-date that disclosure.

2 In other words, as of November 27, Qualcomm had

no reason to exclude documents from its exhibit list because of the Court’s mid-December orders.

If Qualcomm wanted to allocate space on its exhibit list or trial time for the evidence it now seeks 

to proffer, it should have done so from the start. It should not be allowed to revisit its decisions 

now and use a proffer to improperly expand the record. Qualcomm’s belated attempt to create a 

record for appeal in circumvention of this Court’s case management procedures should not be 

condoned. See generally Heyne, 69 F.3d at 1481–82; Alan Wright et al., 21 Fed. Practice & Proc. 

Evid. § 5034.4 (2d ed. 2018) (“[I]t has been held that Rule 103 does not apply to objections to the 

trial court’s limiting the time for trial of the case to two days even though this means that the 

parties will have to forego the use of evidence to meet this deadline.”). 

Moreover, the proposed offer of proof could permit Qualcomm unfairly to bypass other 

requirements for admissibility at trial. The proposed offer would evade the Court’s requirement to 

admit documents through a sponsoring witness, and the documents cited by Qualcomm are not 

 2 For example, Qualcomm seeks to offer proof of 59 post-discovery license agreements, when 

only five of these agreements were on its November 27 exhibit list. See ECF No. 950-13. 

Qualcomm’s November 27 exhibit list did include a proposed summary exhibit that purported to 

summarize 37 post-discovery license agreements. See also Qualcomm’s Proposed Findings of 

Fact, at 13 ¶ 83 (“29 such agreements were entered in 2018”). Neither of the FCC statements 

Qualcomm proposes to proffer were on Qualcomm’s November 27 exhibit list. See ECF No. 950-

13.

Case 5:17-cv-00220-LHK Document 1426 Filed 01/24/19 Page 3 of 6
3

PLAINTIFF FTC’S RESPONSE TO SUBMIT 

QUALCOMM’S BRIEF RE OFFER OF PROOF

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

plainly admissible on their face. For example, Qualcomm has made no showing of how it would 

introduce third-party statements (e.g., “5G modem announcements”) that would be subject to

hearsay or foundation objections. And yet Qualcomm seeks to write or read into an offer of proof 

broad categories of proposed evidence without identifying sponsoring witnesses, foundation, or 

other bases for admissibility. See Gibson v. King Cty., 256 F. App’x 39, 42 (9th Cir. 2007) 

(finding no abuse of discretion in excluding evidence where offer of proof did not show “the 

necessary foundation for admissibility”); see also Perkins v. Silver Mountain Sports Club & Spa, 

LLC, 557 F.3d 1141, 1150 (10th Cir. 2009) (finding offer of proof insufficient where it did not 

“identify the grounds for admitting the evidence”).

Qualcomm’s offer of proof is untimely and prejudicial to the FTC. Qualcomm has known 

of the Court’s orders regarding post-March 2018 evidence for over a month. If Qualcomm wanted 

to seek the Court’s guidance regarding the proper format for an offer of proof, it could have done 

so in advance of trial. By waiting until the end of the eighth trial day to raise this issue, 

Qualcomm has deprived the Court of an opportunity to require that the offer take place by 

question and answer with live witnesses or that Qualcomm make the requisite showing of 

admissibility throughout the trial. See Fed. R. Civ. P. 103(c). One of Qualcomm’s proposed offers 

of proof, for example, relates to the live testimony of witnesses from Intel and MediaTek.3 These 

witnesses finished testifying days before Qualcomm brought its offer of proof proposal to the 

Court’s and the FTC’s attention. Moreover, Qualcomm’s belated disclosure has deprived the FTC 

of a reasonable opportunity to consider its response to Qualcomm’s proposal, including other 

potential objections or responses it may have had to the proffered evidence.

Any offer of proof on post-2018 evidence that was previously disclosed in compliance 

with the Court’s scheduling orders should be made on the trial record during Qualcomm’s allotted 

trial time. Offers of proof are designed “to let the trial judge ‘reevaluate [the] decision in light of 

the actual evidence to be offered’ and to help the reviewing court decide whether ‘exclusion 

affected the substantial rights’ of the offering party. In other words, the reason for requiring offers 

 3 Another proposed offer of proof relates to testimony of Qualcomm executive Cristiano Amon. 

Case 5:17-cv-00220-LHK Document 1426 Filed 01/24/19 Page 4 of 6
4

PLAINTIFF FTC’S RESPONSE TO SUBMIT 

QUALCOMM’S BRIEF RE OFFER OF PROOF

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of proof is to help the trial judge and any later reviewing court do the right thing.” 1 Christopher 

B. Mueller, Laird C. Kirkpatrick, Fed. Evid. § 1:13 (4th ed. 2018) (internal citations omitted). 

Accordingly, it is within the Court’s discretion to determine the method of an offer of proof, 

including whether the proffer should occur by question and answer on the trial record. See Fed. R. 

Evid. 103(c) (providing that “[t]he court may direct that an offer of proof be made in questionand-answer form”); see also Fidelity Savings & Loan v. Aetna Life and Casualty Co., 647 F.2d 

933, 937 (9th Cir. 1981) (explaining that under Rule 103(b), the form of offers of proof is left to 

discretion of trial judge); United States v. Barta, 888 F.2d 1220, 1223 (8th Cir. 1989) (finding a 

failure to make a proper offer of proof regarding excluded testimony when the witness “was 

present in the courtroom” and could have been asked questions forming the basis for an offer of 

proof, but was not). Indeed, some courts have found that an offer of proof by counsel is the “least 

favored method because of its potential to fall short of the standard required by the rules of 

evidence.” See United States v. Adams, 271 F.3d 1236, 1242 (10th Cir. 2001). Requiring 

Qualcomm’s offer of proof to be made on the trial record, in a matter that establishes the 

foundation for admissibility, would provide the FTC with an opportunity to object to specific 

testimony or documents that Qualcomm seeks to offer, including for the reasons detailed above, 

and establish what evidence would have been excluded by operation of other case management 

orders or barriers to admissibility rather than through the Court’s enforcement of a discovery 

cutoff.

Case 5:17-cv-00220-LHK Document 1426 Filed 01/24/19 Page 5 of 6
5

PLAINTIFF FTC’S RESPONSE TO SUBMIT 

QUALCOMM’S BRIEF RE OFFER OF PROOF

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dated: January 24, 2018

Respectfully submitted,

FEDERAL TRADE COMMISSION,

/s/ Jennifer Milici 

Jennifer Milici

J. Alexander Ansaldo

Joseph R. Baker

Elizabeth A. Gillen

Daniel Matheson

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 1426 Filed 01/24/19 Page 6 of 6