CRAVATH, SWAINE & MOORE LLP 

Antony L. Ryan (pro hac vice) 

aryan@cravath.com 

825 Eighth Avenue 

New York, NY 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

Mark D. Selwyn (CA SBN 244180) 

950 Page Mill Road 

Palo Alto, California 94304 

Telephone: (650) 858-6000 

Facsimile: (650) 858-6100 

William F. Lee (pro hac vice) 

Joseph J. Mueller (pro hac vice) 

Mark A. Ford (pro hac vice) 

Timothy Syrett (pro hac vice) 

60 State Street 

Boston, MA 02109 

Telephone: (617) 526-6000 

Facsimile: (617) 526-5000 

Attorneys for Non-Party 

INTEL CORPORATION 

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-NMC 

DEFENDANT QUALCOMM 

INCORPORATED’S AND NONPARTY INTEL CORP.’S JOINT 

DISCOVERY STATEMENT 

Courtroom: 7, 4th Floor 

Judge: Hon. Nathanael M. Cousins 

IN RE QUALCOMM ANTITRUST 

LITIGATION 

Case No. 5:17-MD-02773-LHK-NMC 

 

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 1 of 8
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Defendant Qualcomm Incorporated (“Qualcomm”) and Non-Party Intel Corporation 

(“Intel”) submit this joint statement concerning the length of depositions of current and former 

Intel employees noticed by Qualcomm in the above-captioned cases (the “FTC Action” and the 

“MDL Action”, respectively) and in the related cases consolidated under the single caption In re: 

Qualcomm Litigation, No. 3:17-cv-00108-GPC-MDD (S.D. Cal.) (the “Apple and CM Actions”).

I. Qualcomm’s Position

Qualcomm seeks to depose seven current and former Intel employees (the “Intel 

Deponents”) for one day (seven hours on the record) each,1 and use their testimony in four actions: 

the FTC Action, MDL Action and the Apple and CM Actions. Intel refuses to make its witnesses 

available for questioning by all parties for more than a single day, allowing Qualcomm only 31⁄2 

hours, which is insufficient for Qualcomm to develop the record as needed for each of these cases. 

The Joint Stipulation and Discovery Coordination Order (the “Coordination Order”) 

already addresses this issue. Following extensive negotiation, the parties in the FTC Action, the 

MDL Action and the consolidated Apple and CM Actions agreed to an Order, which the Court has 

now entered, providing that “in the event that a deposition of a Non-Party is noticed in both the 

ND Cal Litigation and the SD Cal Litigation, the Parties agree that, absent good cause, they will 

not oppose an extension of the time limit for that deposition to up to fourteen (14) hours of on-therecord questioning time.”2

 Qualcomm and the other parties have agreed generally to divide 

deposition time evenly (50% to Qualcomm and 50% to the opposing parties). Ordinarily, 

Qualcomm would have been entitled to separate depositions for each action, each lasting seven 

hours on the record.3 The Coordination Order efficiently provides that witnesses are deposed one 

time for all four cases. Despite this accommodation, Intel now seeks unilaterally to restrict 

depositions to one day on the record for questioning by all parties in all actions. Because Intel’s 

proposal would prevent Qualcomm from developing the record necessary to defend itself in all 

four actions, Qualcomm respectfully requests the Court to order that Qualcomm is entitled to seven 

hours of deposition time on the record for each Intel Deponent.

The FTC has disclosed that it will likely call three Intel witnesses at trial while “reserv[ing] 

the right to rely at trial on the testimony of any witness deposed in the case, including by calling 

such a witness live at trial”.4 This underscores the necessary nature of this testimony and the 

unreasonableness of Intel’s position that 31⁄2 hours of examination time is sufficient for Qualcomm 

to prepare its defense. Intel’s attempt to limit depositions to one day would prejudice Qualcomm 

because Intel’s interests are aligned with the other parties, who can obtain information from Intel 

without asking questions at depositions. Qualcomm has repeatedly asked the FTC, the MDL 

plaintiffs, Apple and the CMs whether they intend to question any Intel Deponent. Rather than 

propose a compromise, as Qualcomm has done with respect to two Intel witnesses, the other parties 

have stated only that they will not agree to something less than equal time unless and until 

Qualcomm agrees to further limit its time to less than seven hours. 

Qualcomm should be entitled to a deposition of at least seven hours for the seven Intel 

Deponents. Each is listed below in alphabetical order (other than Mr. Bell, see note 9): 

 

1

 The Intel Deponents are Kevin Constantine, Mark Davis, Aicha Evans, Hermann Eul, Asha Keddy, Stefan Wolff 

and Michael Bell. Qualcomm submits its portion of this joint discovery statement without prejudice to deposing 

additional current or former Intel employees.

2 Id. ¶ 12. 

3 See Fed. R. Civ. P. 30(d)(1). 4

 Letter from D. Matheson to Y. Even (Jan. 12, 2018).

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 2 of 8
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 Kevin Constantine is the former Mobile Wireless Sales Director and current Director, 

Apple Global Accounts for Intel, and was Intel’s main contact with Apple for the sale of 

baseband processors. He is in a position to testify regarding Intel’s sales of baseband 

processors to Apple, including the reasons why Apple did not select Intel baseband 

processors for iPhones produced between 2011 to 2015. 

 Mark Davis is the former Chief Technology Officer (CTO) at VIA Telecom and is 

currently VP, Platform Engineering Group and CTO, CDMA Products and Development 

at Intel. The FTC has identified Mr. Davis as a likely trial witnesses.5

 Mr. Davis is well 

situated to explain competition with Qualcomm in the sale of CDMA baseband 

processors and the effects on competition of Intel’s acquisition of VIA Telecom.6

 Hermann Eul is both the former CTO at Infineon Technologies AG (“Infineon”) and the 

former President of Intel Mobile Communications. As a leader of the wireless group 

both at Infineon and then at Intel following the January 2011 acquisition, Mr. Eul can 

testify as to the reasons for the acquisition and for the success or failure of the business. 

 Aicha Evans is Intel’s Senior VP and Chief Strategy Officer and has held a variety of 

positions at Intel, including serving as the General Manager of Intel’s Communications & 

Devices Group (the wireless group). The FTC has identified Ms. Evans as a likely trial 

witnesses.7 Ms. Evans is in a unique position to testify regarding Intel’s acquisitions of 

the wireless divisions of Infineon and VIA Telecom and Intel’s development of baseband 

processors that compete with Qualcomm’s baseband processors. 

 Asha Keddy is Intel’s VP of Client and Internet of Things and System Architecture 

Group (CISA) and General Manager of Next Generation and Standards. Ms. Keddy’s 

position in charge of Intel’s cellular standards makes her qualified to testify regarding 

Intel’s promotion of WiMax and Intel’s ongoing efforts to standardize 5G technology.8 

 Stefan Wolff is the former General Manager of Intel’s Multi-Communications business 

unit, the engineering group responsible for designing Intel’s baseband processors. 

Mr. Wolff is knowledgeable regarding the technical specifications of Intel’s baseband 

processors from at least 2011 to 2016 and how they compare with Qualcomm’s. 

 Michael Bell was Intel’s Director of Smartphone Development for the Ultra Mobility 

Group and then General Manager of Intel’s Mobile Communications Group. In addition 

to overseeing Intel’s wireless business, Mr. Bell is knowledgeable about Intel’s failed 

efforts to develop application processors for smartphones using Intel architecture.9

Each of the above witnesses independently is important for Qualcomm’s ability to develop 

evidence regarding Intel’s competition with Qualcomm—a central issue in all four actions. 

First, Qualcomm should not have to fit depositions for four cases into half a day, especially 

given that the parties agreed not to object to fourteen-hour depositions for non-party witnesses.10 

Absent the Coordination Order, the Intel Deponents could have been subpoenaed separately in 

each action and been required to sit for questioning for substantially longer. Intel should not be 

permitted to have it both ways: to benefit from the Coordination Order’s requirement that 

 

5

 Letter from D. Matheson to Y. Even at 3 (Jan. 12, 2018). 

6 See Compl. ¶ 34, FTC Action (Feb. 1, 2017), ECF No. 38 (alleging VIA Telecom was a major CDMA competitor). 7

 Letter from D. Matheson to Y. Even at 3 (Jan. 12, 2018). 

8 See Compl. ¶ 120, FTC Action (Feb 1, 2017), ECF No. 38 (alleging that WiMax could have been a 4G standard).

9

 Qualcomm recently served Mr. Bell, who has served objections. Qualcomm and Intel are contemplating motion 

practice about this deposition, but that separate issue does not affect the overarching dispute over deposition length. 

10 Joint Stipulation and Discovery Coordination Order ¶ 10, FTC Action (Jan. 24, 2018), ECF No. 513. 

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 3 of 8
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witnesses need sit for deposition only once, but also to restrict the time to half that agreed upon in 

the Coordination Order. Qualcomm should not be restricted to 31⁄2 hours of deposition time 

because it reached a reasonable and good faith compromise to minimize the burden on Intel. 

Second, Intel is anything but a disinterested third party. Intel actively challenged 

Qualcomm’s conduct in these actions, submitting advocacy materials to the FTC and an amicus 

curiae brief to the Court. Intel has a common interest agreement with Apple, and Apple has a 

common interest agreement with the FTC. Intel has argued to this Court that it is “Qualcomm’s 

only remaining competitor in the premium LTE chipset market” and that “any harm to Intel’s 

premium chipset business will have profound anticompetitive effects on the market as a whole”.11 

Qualcomm should be able to explore these allegations with each of the Intel Deponents. Intel is 

cooperating with the other parties, and limiting deposition length will prejudice Qualcomm.12

Because of the importance of this testimony, Qualcomm respectfully requests the Court to 

order that Qualcomm may question the Intel Deponents for seven hours of on-the-record time. As 

Intel has proposed scheduling its first deposition in dispute (that of Mr. Wolff) on February 7, 

Qualcomm respectfully requests that the Court promptly rule so that the depositions may proceed. 

Compromise Position: In addition to compromising on using one deposition per witness 

for all four actions, Qualcomm also identified two witnesses whose questioning Qualcomm could 

complete in five hours on the record. Qualcomm agreed to proceed on January 31 with the 

deposition of Mr. Hayter, the first Intel Deponent, on those terms, and as a compromise has offered 

to do the same with Ms. Keddy. For all other Intel Deponents, Qualcomm respectfully requests 

the Court to order that Qualcomm is entitled to seven hours of on-the-record deposition time. 

II. Intel’s Position 

Intel is already making seven current and former employees available for nearly fifty (50) 

hours of deposition, and those numbers may grow—Qualcomm is currently seeking two additional 

Intel witnesses and has indicated it might subpoena at least one more. Adding to that already 

significant burden by requiring these witnesses to sit for more than one day each is completely 

unnecessary for discovery of a non-party, especially considering that Qualcomm begins with 465 

pages of Intel testimony that the FTC took during its pre-suit investigation. The suggestion that 

Intel is depriving anyone in this litigation of a reasonable amount of discovery (after it timely 

produced over 1.4 million documents) is baseless. Intel merely seeks what this Court regularly 

demands: proportionality, and that parties be efficient when conducting discovery of a non-party. 

Background. During its pre-suit investigation, the FTC examined four Intel witnesses 

under oath: (1) Aicha Evans; (2) Alexander Straub; (3) Asha Keddy; and (4) Dana Hayter.13 Those 

transcripts provide a substantial amount of relevant discovery, and allow Qualcomm to be even 

more efficient in the upcoming depositions. In these coordinated actions, Qualcomm—joined by 

the FTC and class plaintiffs—subpoenaed nine current and former Intel employees (including Ms. 

 

11 Intel’s Mot. for Supplemental Protective Order at 7, FTC Action (May 23, 2017), ECF No. 110. 12 Intel suggests that the FTC’s limited pre-suit examination of three of the seven Intel Deponents means Qualcomm 

should get less time for depositions now. But Qualcomm was not permitted to ask any questions—or even to attend 

the FTC’s examination—of those individuals. Friendly questioning of cooperating witnesses in a closed-door, presuit proceeding is not a substitute for in-suit examination of those (and other) witnesses by Qualcomm.

13 None of these depositions (investigational hearings) lasted a full day. Each lasted about two to five hours on the 

record. 

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 4 of 8
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Evans, Ms. Keddy, and Mr. Hayter). Intel has offered dates for seven of those witnesses so far.14 

For the first Intel witness (Mr. Hayter), Qualcomm agreed to use five of the seven hours with the 

other plaintiffs dividing the last two hours. While the plaintiffs expressed willingness to negotiate 

similar agreements to split single days with the remaining Intel witnesses, Qualcomm demanded 

that it be allowed a full seven hours for each of the remaining witnesses.15 

Argument. Contrary to Qualcomm’s suggestion, the Coordination Order does not address 

this issue. The Order merely provides that any party may seek to extend non-party depositions 

beyond one day, and that the remaining parties would not oppose. See, 5:17-cv-00220-LHK, Doc. 

No. 513, ¶ 12. Thus, if anything, the Order implies a presumptive one-day limitation on non-party 

depositions, even when noticed for all applicable cases. And nothing in the order purports to 

compel non-parties, like Intel, to acquiesce to demands for greater time. The issue for the Court, 

therefore, is whether Qualcomm has shown good cause under Fed. R. Civ. P. 26 and 30 to support 

a finding that additional time with each witness is “needed for a fair examination.” It has not. 

In assessing whether Qualcomm has shown good cause, the Court may consider for each 

witness whether (1) the deposition is unnecessarily cumulative or duplicative; (2) the discovery is 

available from other sources; (3) Qualcomm has sufficient opportunity without the extension to 

obtain the information sought; and (4) the burdens on Intel and the deponent outweigh the benefit 

of the discovery. Somerset Studios, LLC v. Sch. Specialty, Inc., 2011 U.S. Dist. LEXIS 103927, 

*12 (N.D. Cal. Sept. 14, 2011). Each of these factors cuts against extending the Intel depositions. 

First, Qualcomm ignores that these seven Intel deponents are largely cumulative of each 

other. For example: 

 Qualcomm identifies Aicha Evans as a key witness to testify about the overall 

development and sales of Intel’s cellular baseband processors, but she reported to 

Hermann Eul during that period. As to high-level business strategy and 

implementation, therefore, their testimony would be largely cumulative. 

 Qualcomm identifies Kevin Constantine as being “in a position to testify regarding 

Intel’s sales of baseband processors to Apple,” but Mr. Eul, Ms. Evans, and Stefan 

Wolff were also directly involved in those discussions with Apple. Accordingly, 

questioning of those four witnesses will be largely cumulative on that issue. 

 Qualcomm identifies Mr. Eul as the leader of Infineon’s cellular business prior to 

Intel’s acquisition in 2011 and thus well-positioned to testify “as to the reasons for the 

acquisition and for the success or failure of the business,” but Mr. Constantine and Mr. 

Wolff were also central to that business and therefore very familiar with it (and 

Qualcomm acknowledges that Ms. Evans can also testify regarding the reasons for the 

Infineon acquisition). 

 

14 Intel and the parties continue to discuss the possibility of additional deposition testimony. One requested witness 

(Thomas Lueftner) is a former Intel employee outside the subpoena power, and Qualcomm has requested a 

replacement witness (Thomas Lindner), a current employee but who is also outside the subpoena power. One other 

requested witness (Mr. Bell) is a former Intel employee who maintains he was only minimally relevant to the issues 

in the case, and that his deposition would be unduly burdensome and cumulative. The parties are discussing Mr. 

Bell’s request that Qualcomm withdraw that subpoena. Qualcomm has also recently indicated it may serve 

subpoenas to one or more additional Intel witnesses.

15 Qualcomm offered to limit its questioning of Ms. Keddy to five hours, but only if Intel agreed to make all other 

witnesses available to Qualcomm alone for a full seven hours. That compromise position—essentially conceding 

just 2 of the demanded 49+ hours—was insufficient.

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 5 of 8
5 

 Qualcomm identified Mark Davis (a former VIA employee before Intel acquired VIA 

Telecom) as being able “to explain competition with Qualcomm in the sale of CDMA 

baseband processors and the effects on competition of Intel’s acquisition of VIA 

Telecom,” but (as Qualcomm acknowledges), Ms. Evans is also knowledgeable about 

Intel’s acquisition of VIA Telecom (and Qualcomm has previewed its intention to 

subpoena an additional legacy-VIA witness).16 

The fact that these depositions will be taken for purposes of four separate actions changes nothing. 

These are related cases, and the discovery of Intel will be substantially the same across actions. 

Second, much of the deposition discovery Qualcomm seeks from Intel is equally (if not 

more readily) available from other parties Qualcomm plans to depose. For example, Qualcomm 

states that it plans to examine Mr. Constantine on “the reasons why Apple did not select Intel 

baseband processors for iPhones produced between 2011 and 2015.” (emphasis added). 

Qualcomm will also be deposing several Apple witnesses on that same topic. Similarly, 

Qualcomm identified Mr. Wolff and Mr. Eul as individuals who could offer testimony as to how 

Intel’s baseband processors compared to Qualcomm’s, testimony that would also be available from 

actual or potential customers, like Apple and other OEMs that will be deposed. 

Third, Qualcomm has adequate time to obtain necessary discovery from Intel during fullday depositions without extending them. And, contrary to Qualcomm’s suggestion, Intel is not 

seeking to limit Qualcomm to 3 1⁄2 hours per deponent. If Qualcomm believes it is entitled to 

more than 50% of the time with respect to any Intel witness, it can negotiate that with plaintiffs 

(as they have offered), or take it up with the Court if the parties cannot reach agreement. As with 

Mr. Hayter’s deposition, Qualcomm may be able to secure well more than half the seven hours. 

Intel takes no position on how that time is allocated, but Qualcomm’s unrelenting demand for 

nearly 50 hours for itself, from these seven witnesses alone, is simply unwarranted. 

Finally, the burden to Intel and the deponents of sitting for multiple days each outweighs 

any benefit Qualcomm has identified. Four of the seven witnesses are high-level Intel executives 

for whom a second day of deposition would be a significant additional distraction from their 

responsibilities at Intel. The remaining three witnesses are former employees for whom it would 

be even more difficult to take additional time away from their current responsibilities, including 

to new employers. As this court knows, “[c]oncern for the unwanted burden thrust upon nonparties is a factor entitled to special weight.” See Amini Innovation Corp. v. McFerran Home 

Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014). Qualcomm’s argument that Intel is not 

a “disinterested third party” is irrelevant. Intel did not initiate this litigation and is therefore a nonparty, entitled to the protections afforded non-parties. 

Compromise Position. Qualcomm has repeatedly identified Ms. Evans and Mr. Constantine as 

two of the most important witnesses. As a compromise, Intel is willing to make both available 

for one-and-a-half days (allowing the parties to divide the time as they see fit, but in no case 

giving Qualcomm more than 7 hours). For the remaining current employees (Ms. Keddy and 

Mr. Davis), Intel is willing to make them available for one day of eight hours to facilitate 

agreement among the parties to split time (wherein Qualcomm negotiates for up to five hours).17 

 

16 See Declaration of Aichatou Evans, Case Nos. No. 5:17-CV-00220-LHK-NMC; 5:17-md-027773-LHK (Dkt. No. 

244-3) (Oct. 20, 2017) at ¶¶ 2–4, 6, 8 (“Evans Decl.”). 

17 Intel’s compromise proposal is made without prejudice to Plaintiffs’ positions on how such time should be 

allocated among the parties. Plaintiffs asked Intel to inform the Court that they reserve their rights on allocation of 

deposition time. 

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 6 of 8
6 

Dated: January 30, 2018 

Respectfully submitted, 

CRAVATH, SWAINE & MOORE LLP 

/s/ Antony L. Ryan 

Antony L. Ryan 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

aryan@cravath.com 

Richard S. Taffet 

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178 

Telephone: (212) 369-6000 

Facsimile: (212) 309-6001 

richard.taffet@morganlewis.com 

Attorneys for Qualcomm Incorporated 

 /s/ Mark A. Ford

 WILMER, CUTLER, PICKERING, HALE & DORR LLP 

MARK D. SELWYN (CA SBN 244180) 

950 Page Mill Road 

Palo Alto, California 94304 

Telephone: (650) 858-6000 

Facsimile: (650) 858-6100 

WILLIAM F. LEE 

JOSEPH J. MUELLER 

MARK A. FORD 

TIMOTHY SYRETT 

60 State Street 

Boston, MA 02109 

Telephone: (617) 526-6000 

Facsimile: (617) 526-5000 Attorneys for Non-Party Intel Corporation 

.

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 7 of 8
FILER’S ATTESTATION

I, Antony L. Ryan, am the ECF user whose identification and password are being used to 

file this Joint Discovery Statement. In compliance with Civil Local Rule 5-1(i)(3), I hereby 

attest that the signatories on this document have concurred in this filing. 

/s/ Antony L. Ryan 

Antony L. Ryan 

Case 5:17-cv-00220-LHK Document 519 Filed 01/30/18 Page 8 of 8