PLAINTIFF FTC’S RESPONSE BRIEF

RE: POST-DISCOVERY EVIDENCE

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

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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

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 BRIEF 

REGARDING POST-DISCOVERY 

EVIDENCE

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RE: POST-DISCOVERY EVIDENCE

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Contrary to the suggestions in Qualcomm’s brief (ECF No. 929), the only issues now 

before the Court are (1) whether the parties should introduce at the January 2019 trial evidence 

relating to both liability and remedy; and (2) whether Qualcomm may introduce post-discovery 

documents that were cherry-picked from its own confidential files. The Court’s prior guidance 

answers these questions and, until recently, the parties had proceeded accordingly. Qualcomm 

now seeks to muddy the waters, but without doing what it should have done months ago if it 

wanted to update the discovery record: Make a specific proposal to modify the Court’s scheduling 

order. Given its own lack of diligence, Qualcomm cannot show good cause to do so, and does not 

even try. It instead tries to distract with questions not before the Court and arguments without 

legal support. The FTC respectfully requests that the Court uphold its March 30, 2018 fact 

discovery deadline.

Qualcomm’s Request to Introduce Post-Discovery Documents is Deficient

As set out in the FTC’s opening brief, this Court has previously decided that it will not 

hold a bifurcated trial. ECF No. 928 at 2. The Court also clarified long ago that refresh discovery 

must be “full discovery,” as opposed to “cherry picked” data, documents, or custodial 

information. Id. Nevertheless, rather than seek modification of the Court’s schedule when there 

was time to conduct further discovery, Qualcomm simply announced, just weeks ago, that it plans 

to rely at trial on documents from its files that it unilaterally selected and produced after the 

discovery cutoff. See id. This is no way to modify a Court scheduling order.

Qualcomm argues at length about what evidence would be sufficient for the Court to enter 

an injunction—a question not currently before the Court. Even if Qualcomm’s arguments are 

construed as an attempt to show good cause to waive the Court’s discovery cutoff, they fall far 

short. For example, Qualcomm asserts that evidence regarding recent chip procurement decisions 

by Apple will be important in assessing Qualcomm’s market power. See ECF No. 929 at 3. But as 

set out in the FTC’s brief, Apple’s 2018 procurement decisions were the subject of pre-cutoff 

discovery. See ECF No. 928 at 3. Qualcomm also references nebulous “updated evidence” of 

other unnamed OEM chip procurement decisions—but still has not specified which OEMs it has 

in mind or identified any particular evidence that it seeks to introduce. ECF No. 929 at 3. For the 

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first time in its brief, Qualcomm raises the possibility of post-discovery evidence regarding 

“whether OEMs plan to use Qualcomm modem chips in future devices now under development,”

but it is no more clear about this evidence. Id. Qualcomm’s claim that the FTC “would have the 

Court reach the question of an injunction based on speculation” is thus misleading; in reality, 

much of the evidence on “current market conditions” that Qualcomm seeks to introduce is already 

in the pre-discovery cutoff record, and the scope of other such proposed evidence remains 

impossibly vague.1

Qualcomm’s request to introduce licenses produced after the discovery cutoff suffers from 

similar problems. See ECF No. 928 at 3. As set out in the FTC’s brief, to test whether and to what 

extent Qualcomm exerted coercive leverage in entering into post-discovery licenses would 

require extensive discovery from both Qualcomm and third parties, many of whom are located 

abroad. See id. Nevertheless, fully aware of the Court’s November 2017 instruction that refresh 

discovery must not be cherry-picked, Qualcomm waited until October 8 to announce its intent to 

rely at trial on licenses that it had negotiated, and in many cases executed, months before.

2

Qualcomm claims the post-cutoff documents must be admitted at trial to avoid “error” (ECF No. 

929 at 4), but it would be more problematic to assess the licenses in a vacuum, without careful 

consideration of the surrounding context.

Legal Precedent Regarding Injunctive Relief Does Not Support Qualcomm’s Position

Qualcomm seeks to justify its vague and untimely request by relying on inapplicable case 

law regarding the FTC’s ability to seek relief under Section 13(b) of the FTC Act. As set out in 

the FTC’s opening brief, it is established law that injunctive relief under the FTC Act is warranted 

 1 The issue before the Court is whether Qualcomm can rely on its own confidential information 

without an opportunity for the FTC to conduct discovery about that evidence. Whether the parties 

may question third party witnesses about current or future market conditions, or question 

Qualcomm witnesses about information in the public domain, is not part of the present dispute. 

2 Qualcomm has still not provided any explanation for its failure to notify the FTC or the Court 

about its intent to rely upon this evidence prior to October 8. The last meet and confer the parties 

had about the possibility of a refresh of discovery, which the FTC had agreed to consider if

Qualcomm had a specific proposal and if circumstances warranted it, was in February. Qualcomm 

never made such a proposal and chose not to raise the issue with the Court in any of the half 

dozen case management statements filed between the close of fact discovery and October.

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when “the wrongs are ongoing or likely to recur.” FTC v. Evans Prods. Co., 775 F.2d 1084, 1087 

(9th Cir. 1985); see also ECF No. 928 at 1. Qualcomm concedes that this is the standard. See ECF 

No. 929 at 1. Given that Qualcomm continues to maintain the licensing policies and practices that 

are at the core of this case, the FTC is prepared to show at trial that Qualcomm is engaged in 

ongoing misconduct, and the Court need not consider at this time whether the FTC has carried its 

burden or whether an injunction is appropriate.

3

Qualcomm tries to validate its attempt to inject cherry-picked documents into the record 

by relying on United States v. Dish Network, LLC, No. 09-3073, 2016 WL 29244 (C.D. Ill. Jan. 4, 

2016). Dish Network actually shows why Qualcomm’s request is inappropriate. In that case, Dish

had violated the telemarketing laws over a multi-year period. On the eve of trial—and more than 

three years after the fact discovery deadline—it sought to introduce call records and audit reports

prepared after the close of discovery for the narrow purpose of showing its current compliance 

with applicable laws. See Dish Network, 2016 WL 29244 at *8. The court held that the late 

disclosure of this material violated Dish’s discovery obligations and was neither substantially 

justified nor harmless. See id. at *9. It noted that Dish “only produced a highly selective portion 

of the documents” and that the plaintiffs would be “prejudiced by the admission of this evidence 

because they have never had the opportunity to depose anyone about the documents or ensure that 

the new procedures have been implemented.” Id. The same is true here (to the extent Qualcomm’s 

post-discovery evidence is relevant at all).

To be sure, the court in Dish Network ultimately did not exclude the compliance 

documents. Instead, it made a discretionary decision to bifurcate the trial and allow further 

discovery, requiring Dish to pay the plaintiffs’ attorneys’ fees and expenses as a sanction. See id. 

at *12. But there is no reason why the Court should follow that approach here. Dish Network

involved a more than 3.5-year gap between the close of discovery and trial. See id. at *1. The 

same concerns do not apply to this case, which the Court has advanced swiftly and efficiently, 

 3 Even if a showing of likelihood of recurrence were required, the “existence of past violations 

may give rise to an inference that there will be future violations.” SEC v. Murphy, 626 F.2d 633, 

655 (9th Cir. 1980) (also stating that “the fact that the defendant is currently complying with the 

securities laws does not preclude an injunction”).

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with only a 9-month window between the close of fact discovery and trial, and where Qualcomm 

seeks to introduce evidence on far more expansive topics. Moreover, the Dish Network court

recognized that as a practical matter, “the case need[ed] to be resolved” and that “[c]ontinually

producing newly-created evidence only serves to further delay this case and imposes an undue 

burden on the parties and the Court.” Id. at *10. Accordingly, the court ordered that “if any 

additional supplementation is necessary, the party seeking to supplement must obtain leave of 

Court to do so.” Id. Qualcomm did not seek, let alone obtain, leave of Court to supplement the 

record, despite being on notice that full and fair discovery would be necessary for it to do so.

The other cases cited by Qualcomm are similarly inapplicable because they involved 

conduct that, unlike here, had already ceased when the lawsuit was filed. For example, 

Qualcomm cites FTC v. AbbVie Inc., No. 14-5151, 2018 WL 3830533 (E.D. Pa. June 29, 2018), 

but that case involved anticompetitive actions that were no longer ongoing. The court there did 

not hold that the FTC’s evidence was “stale,” but rather that the FTC had not shown sufficient 

likelihood of recurrence to warrant an injunction. See id. at *35–36. That determination is on 

appeal to the Third Circuit. And in FTC v. Merch. Servs. Direct, LLC, No. 13-cv-0279, 2013 WL 

4094394, at *3 (E.D. Wash. Aug. 13, 2013), the court likewise held that the FTC had not shown 

adequate likelihood of recurrence. By contrast, there is no serious dispute that this case involves 

ongoing conduct.

The FTC respectfully requests that the Court confirm that it will enforce the March 30, 

2018 fact discovery deadline, and that cherry-picked post-discovery documents from 

Qualcomm’s own files may not be introduced at trial. The FTC further requests that the Court 

confirm that the January 2019 trial will address both liability and remedy.4

 4 As stated in its opening brief, the FTC does not oppose briefing remedy after trial or after a 

liability decision, as has happened in recent government antitrust cases—without updating the 

discovery record. See, e.g., United States v. Apple, Inc., 952 F. Supp. 638 (S.D.N.Y. 2013) (No. 

12 Civ. 2826) (bench trial concluded June 20, 2013, ECF No. 297; liability decision July 10, 

2013, ECF No. 326; remedy briefs submitted Aug. 2, 2013, ECF Nos. 329, 331; injunction issued 

Sept. 5, 2013, ECF No. 374).

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Dated: November 7, 2018

Respectfully submitted,

FEDERAL TRADE COMMISSION,

/s/ Jennifer Milici 

Jennifer Milici

J. Alexander Ansaldo

Joseph R. Baker

Elizabeth A. Gillen

Daniel Matheson

Mark 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

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