FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE NO. 3 RE: BCG

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

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Jennifer Milici, D.C. Bar No. 987096 

Kent Cox, Illinois Bar No. 6188944 

Nathaniel M. Hopkin, New York Bar No. 5191598 

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

PLAINTIFF FEDERAL TRADE

COMMISSION’S OPPOSITION TO 

QUALCOMM’S MOTION IN LIMINE

NO. 3 TO EXCLUDE BCG

DECLARATION AND DOCUMENTS 

UNREDACTED VERSION OF 

DOCUMENT SOUGHT TO BE

SEALED

Date: December 13, 2018 

Time: 1:30 p.m. 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh

Case 5:17-cv-00220-LHK Document 1021 Filed 12/18/18 Page 1 of 5
FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE NO. 3 RE: BCG

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

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Qualcomm has moved to exclude as inadmissible hearsay three documents produced by 

the Boston Consulting Group (the “BCG Documents”). (Attached to Milici Decl. as Ex. 1, Ex. 2, 

and Ex. 3.) Qualcomm’s motion should be denied because the BCG Documents were created by 

BCG while acting as Qualcomm’s agent during “Project Phoenix,” a 2015 assessment of whether 

to separate Qualcomm’s chip and licensing businesses. Thus, the BCG Documents are admissions 

of a party opponent and are not hearsay. Moreover, the documents are independently admissible 

business records, as shown by the declaration of Mr. Raj Varadarajan (ECF No. 945-2), a Senior 

Partner at BCG, which satisfies the requirements of Fed. R. Evid. 902(11).

The circumstances surrounding the production of the BCG Documents establish BCG’s 

agency relationship with Qualcomm. Before they were produced to the FTC, Qualcomm redacted 

two of the three BCG Documents on the basis of attorney-client privilege. First, Qualcomm 

redacted a November 23, 2015 BCG presentation titled “Project Phoenix: Red Team 

Assessment.” (Ex. 1.) The document bears a disclaimer stating “[t]he materials contained in this 

presentation were designed at the specific request of the Board of Directors of Qualcomm 

Technologies, Inc. (the ‘Client’).” (Id.) Material is redacted from slides -947, -951, and -952. 

Second, Qualcomm redacted a November 9, 2015 presentation titled “Project Phoenix.” (Ex. 2.)

A copy of the presentation was included in a larger package that Qualcomm management 

provided to its Board of Directors. (See Ex. 4.) In connection with the Board meeting, 

Qualcomm’s Senior Vice President David Wise wrote, “Note: we do not plan to have BCG 

present their slides at the meeting, in the interest of time. . . . Their analysis and conclusions are in 

line with management’s assessment.” Id. Redactions appear at slide -914. (Ex. 2.)

In correspondence with the FTC copied to Qualcomm’s counsel, BCG maintained that it 

was proper for BCG to withhold Qualcomm’s purportedly privileged information contained in 

these documents, relying on case law concerning an agency relationship.

1 This resolves the 

 1 See November 10, 2017 Letter from Jason Halper, at 3 (Ex. 5) (citing Segerstrom v. US, No. C 

00-0833, 2001 WL 283805. at *3 (N.D. Cal. Feb. 6, 2001) (“The attorney-client privilege covers 

communications between the attorney, the client, or their agents, so long as the communication 

were intended to be confidential and made in rendering legal advice.”).

Case 5:17-cv-00220-LHK Document 1021 Filed 12/18/18 Page 2 of 5
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FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE NO. 3 RE: BCG

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

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hearsay inquiry: because BCG was acting as Qualcomm’s agent, the BCG Documents are 

admissions of a party opponent and are not hearsay. See Rule 801(d)(2)(D).2 Qualcomm cites no 

authority for the proposition that an entity may be embraced as an agent for the purposes of 

maintaining privilege and yet disclaimed as an agent under the Federal Rules of Evidence.3

BCG’s status as Qualcomm’s agent is confirmed by Mr. Varadarjan, who attested that the 

BCG Documents were created while BCG was providing services to Qualcomm and relate to 

matters within the scope of the services that Qualcomm retained BCG to provide. See ECF No. 

945-2. Qualcomm does not contest Mr. Varadarajan’s declaration, which is more than sufficient 

to establish that the documents are not hearsay. See Rule 801(d)(2)(D) (a statement is not hearsay 

if it is “made by the party’s agent ... on a matter within the scope of that relationship and while it 

existed”); see also Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1306-07 (9th 

Cir. 1983) (report prepared at the request of defendant’s board, based upon information obtained 

from defendant, and presented to a meeting attended by many of defendant’s executives, is not 

hearsay); Beck v. Haik, 377 F.3d 624, 638-40 (6th Cir. 2004) (statements of risk consultant 

admissible under Rule 801(d)(2)(D)), overruled on other grounds by Adkins v. Wolever, 554 F.3d 

650, 651-53 (6th Cir. 2009).

4

Indeed, the statements would not be hearsay even absent Mr. 

Varadarajan’s declaration, because the documents on their face concern Project Phoenix, and the 

agency relationship relating to Project Phoenix is established by other evidence.5

 

2 The November 9 presentation (Ex. 2) is also not hearsay because Qualcomm’s management 

adopted BCG’s “analysis and conclusion.” See Fed. R. Evid. 801(d)(2)(B); Walden v. Seaworld 

Parks & Entm’t, Inc., No. 4:11CV113, 2012 WL 4050176, at *2 (E.D. Va. May 31, 2012).

3 The third BCG Document was also created pursuant to BCG’s agency relationship, as evidenced 

by its contents. See Ex. 3 (October 2, 2015 email attaching “notes from the management meetings 

[with Qualcomm] over past two days on Phoenix.”).

4 Qualcomm cites Hill v. Novartis Pharm. Corp., 944 F. Supp. 2d 943, 950 (E.D. Cal. 2013), but 

in that case the proponent sought to introduce emails from individuals providing comments to a 

white paper without any evidence that the declarants had been hired by defendant for that 

purpose. Here, evidence establishes that Qualcomm hired BCG to conduct analyses, provided 

information for those analyses, and BCG’s analyses were presented to Qualcomm’s Board.

5

See Dep. of David Wise (Qualcomm), Tr. 9:11-25, 26:14-29:25, Feb. 8, 2018. (Ex. 6.)

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FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE NO. 3 RE: BCG

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Moreover, assuming counterfactually that BCG was not Qualcomm’s agent,6 the BCG 

documents would be admissible hearsay under the business records exception. Fed. R. Evid. 

803(6). Qualcomm admits that Mr. Varadarajan’s declaration “repeats the language of Rule 

803(6)” and thus addresses each element of the Rule.7 And Qualcomm does not even attempt to 

contradict Mr. Varadarajan’s sworn testimony that the documents meet each requirement of Rule 

803(6).8 Instead, Qualcomm argues that the FTC failed to give Qualcomm “a fair opportunity to 

challenge” Mr. Varadarajan’s declaration. This argument misses the mark, as a Rule 902(11) 

certification need not be provided during discovery, and it does not contemplate a deposition of 

the declarant.9 Instead, Rule 902(11) “sets forth a procedure by which parties can authenticate 

certain records of regularly conducted activity, other than through the testimony of a foundation 

witness.” Fed. R. Evid. 902, Advisory Cmte. Notes (2000) (emphasis added). Moreover, the FTC 

has no objection to Qualcomm calling Mr. Varadarajan at trial to question him about the 

statements in his declaration. What Qualcomm cannot do is use the declaration as an excuse to 

belatedly identify Mr. Varadarajan as a witness on topics outside of his declaration. See FTC MIL 

#3, ECF No. 943.10

 6 If the Court concludes that BCG was not acting as an agent of Qualcomm during the Project 

Phoenix engagement, then the FTC requests that the Court order BCG and Qualcomm to produce 

all documents and information withheld as privileged on the basis of such agency.

7 Qualcomm argues that the declaration is insufficiently specific but cites no authority for its 

position. The only case cited by Qualcomm holds the opposite. See Curley v. Wells Fargo & Co.,

120 F. Supp. 3d 992, 998 (N.D. Cal. 2015) (accepting non-custodial certification that similarly 

recited ordinary-course preparation near the occurrence, and regular conduct in keeping).

8 Qualcomm misapprehends the meaning of a regularly conducted activity. The activity need not 

be frequent. Regular “can also mean ‘usual’ or ‘ordinary’.” Sana v. Hawaiian Cruises, Ltd., 181 

F.3d 1041, 1047 (9th Cir. 1999) (admitting insurer’s report of investigation against defendant). 9 FRE 902(11) states that “Before the trial or hearing, the proponent must give an adverse party 

reasonable written notice of the intent to offer the record — and must make the record and 

certification available for inspection — so that the party has a fair opportunity to challenge them.”

10 In any event, the BCG Documents have sufficient indicia of reliability to fall within the 

residual exception to the rule against hearsay, Fed. R. Evid. 807, and remain admissible for 

matters other than the truth of such statements. 

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FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE NO. 3 RE: BCG

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

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Dated: December 3, 2018

Respectfully submitted,

FEDERAL TRADE COMMISSION,

/s/ Jennifer Milici 

Jennifer Milici

Kent Cox

Joseph R. Baker

Nathaniel M. Hopkin

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 1021 Filed 12/18/18 Page 5 of 5