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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE FTC'S MOTION IN LIMINE # 1

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION, et al.,

Plaintiffs,

v.

QUALCOMM INCORPORATED, et al.,

Defendants.

Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT 

PREJUDICE FTC'S MOTION IN 

LIMINE # 1

Re: Dkt. No. 940

On November 29, 2018, Plaintiff Federal Trade Commission (“FTC”) filed a motion in 

limine to exclude lay opinion evidence. ECF No. 940 (“Mot.”). Qualcomm Inc. (“Qualcomm”) 

opposes the motion. ECF No. 954. Having considered all of the arguments raised in the parties’ 

submissions, the relevant law, and the record in this case, and balancing the factors set forth in 

Fed. R. Evid. 403, the Court DENIES without prejudice the FTC’s motion in limine. 

I. LEGAL STANDARD

The Court has broad discretion to manage the conduct of a trial and the evidence presented by 

the parties. Navellier v. Sletten, 262 F.3d 923, 941-42 (9th Cir. 2001). In addition, the Federal Rules of 

Evidence “confer broad discretion on the trial judge to exclude evidence on any of the grounds 

specified in Rule 403.” United States v. Hearst, 563 F.2d 1331, 1349 (9th Cir. 1977); see also United 
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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE FTC'S MOTION IN LIMINE # 1

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United States District Court

Northern District of California

States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995) (“trial courts have very broad discretion in 

applying Rule 403” (quoting Borunda v. Richmond, 885 F.2d 1384, 1388 (9th Cir. 1988) (alteration 

omitted)). Fed. R. Evid. 403 provides that “[t]he court may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” The ruling below balances the factors set forth in Rule 403.

Furthermore, lay opinion testimony may be permitted under Fed. R. Evid. 701 if the testimony 

is “rationally based on the witness’s perception,” “helpful to clearly understanding the witness’s 

testimony or to determine a fact in issue,” and “not based on scientific, technical, or other specialized 

knowledge.”

II. DISCUSSION

The FTC seeks to exclude lay testimony regarding the “value or importance of 

Qualcomm’s patents, innovations, or other technical contributions, including any opinion 

comparing Qualcomm’s contributions to cellular standards and technologies to those made by 

other cellular industry participants.” Mot. at 1. The FTC believes that this evidence requires 

technical and specialized knowledge regarding Qualcomm’s patent portfolio, and cannot be 

appropriately presented by Qualcomm witnesses who have not been disclosed and qualified as 

expert witnesses. 

As an initial matter, this Court agrees with Qualcomm that the FTC’s request is too broad 

to warrant a preemptive ruling. Furthermore, as to testimony regarding Qualcomm’s contributions 

to standards and technologies, this does not constitute impermissible lay opinion testimony. Fed. 

R. Evid. 701 permits lay witness testimony that is founded in knowledge gained from the 

witness’s employment in the business at issue. “Such opinion testimony is admitted not because of 

experience, training or specialized knowledge within the realm of an expert, but because of the 

particularized knowledge that the witness has by virtue of his or her position in the business.” In 

re ComUnity Lending, Inc., 2011 WL 7479165, at *5 (N.D. Cal. June 6, 2011) (quoting Fed. R. 

Evid. 701, 2000 Advisory Committee Notes); see also Pet Food Express Ltd. v. Royal Canin USA, 
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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE FTC'S MOTION IN LIMINE # 1

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Inc., 2011 WL 6140874, at *11 (stating the same); Hynix Semiconductor Inc. v. Rambus Inc., 2008 

WL 504098, at *4 (N.D. Cal. Feb. 19, 2008) (same). Therefore, so long as Qualcomm’s witnesses 

base their testimony on their personal experiences as percipient witnesses, they are permitted to 

testify as lay witnesses regarding Qualcomm’s contributions to standards and technologies. 

However, “any testimony that qualifies as expert opinion under Rule 702 may not be 

offered as lay testimony under Rule 701.” Everest Stables, Inc. v. Canani, 2011 WL 13213657, at 

*4 (C.D. Cal. Oct. 6, 2011) (citing Fed. R. Evid. 701(c)). Qualcomm appears prepared to offer 

expert testimony on the valuation of its patent portfolio from Dr. Jeffrey Andrews, who was 

retained to opine on “the importance of . . . certain of Qualcomm’s Standard Essential Patents 

(“SEP”) related to the UMTS, LTE, and 5G NR (New Radio) standards.” ECF No. 904-4 at ¶ 2.

Pursuant to Canani, to the extent testimony on patent valuation is expert testimony, then it may 

not be offered as lay testimony under Rule 701. If any such lay testimony impermissibly strays

into expert testimony, the FTC should object at trial.

III. CONCLUSION

For the foregoing reasons, the FTC’s Motion in Limine # 1 is DENIED without prejudice.

IT IS SO ORDERED.

Dated: December 10, 2018

______________________________________

LUCY H. KOH

United States District Judge