QC Response to FTC’s Administrative Motion 

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

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KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest - # 84065 

rvannest@keker.com 

Eugene M. Paige - # 202849 

epaige@keker.com 

Justina Sessions - # 270914 

jsessions@keker.com 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: 415 391 5400 

Facsimile: 415 397 7188 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice)

yeven@cravath.com 

825 Eighth Avenue 

New York, New York 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

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 

MORGAN, LEWIS & BOCKIUS LLP 

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone: (202) 739-3000 

Facsimile: (202) 739-3001 

MORGAN, LEWIS & BOCKIUS LLP 

Geoffrey T. Holtz (SBN 191370) 

gholtz@morganlewis.com 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

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

QUALCOMM INCORPORATED’S 

RESPONSE TO THE FTC’S 

ADMINISTRATIVE MOTION 

REGARDING THE FTC’S REBUTTAL 

CASE 

Judge: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1375 Filed 01/21/19 Page 1 of 4
1 QC Response to FTC’s Administrative Motion 

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

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Defendant Qualcomm Incorporated (“Qualcomm”) respectfully submits this response to 

the FTC’s Administrative Motion To Begin Rebuttal Case on January 28, 2019 (ECF No. 1374). 

Qualcomm anticipates resting its case in the afternoon of January 25, 2019. Based on the 

remaining trial time available to both parties (11 hours, 52 minutes) and the average amount of 

trial time that has been used each day so far at trial (approximately five and a half hours), it is 

possible that both parties could complete their trial presentations by the end of the day on Friday, 

January 25, or come close to doing so. Nevertheless, Qualcomm does not oppose in principle the 

FTC’s request to defer beginning its rebuttal case until the morning of Monday, January 28. 

The FTC, however, has not proposed a practical schedule to govern the disclosure of 

rebuttal witnesses and evidence or for submission of any high priority objections in light of its 

request to delay its rebuttal case. For Monday trial days during both parties’ cases (or for 

Tuesday, January 22, when Monday, January 21 was a Court holiday), the Court has required the 

parties to identify witnesses and to disclose evidence sufficiently in advance to permit the 

submission of high priority objections on the preceding Friday by 8:00 a.m. The FTC seeks a 

special exception to this rule for its rebuttal case that would result in high priority objections 

being submitted on Sunday, January 27, without good cause. Further, because the FTC has stated 

that it reserves the right to seek rebuttal testimony from Qualcomm employees—who would have 

to rearrange their professional schedules and travel to San Jose to testify—the FTC’s proposal to 

delay identifying rebuttal witnesses until 8:00 p.m. on Friday, January 25, less than three days 

before the last day of trial, leaves Qualcomm and those witnesses in an untenable position. 

The FTC asserts that it should be permitted to defer the disclosure of rebuttal witnesses 

and evidence until after Qualcomm presents the testimony of Prof. Aviv Nevo and Alex Rogers, 

who will testify on January 25. The testimony of both witnesses, however, will not be a surprise 

to the FTC. The FTC has an expert report submitted by Prof. Nevo (and Prof. Shapiro already 

has served an expert report purporting to rebut it) and an extensive, two-day deposition of 

Mr. Rogers. And the FTC will receive a disclosure of HPO evidence (trial exhibits and 

demonstratives) for both of these witnesses on Wednesday morning by 8:00 a.m. Further, the 

FTC already has received a disclosure of all remaining deposition testimony Qualcomm will 

Case 5:17-cv-00220-LHK Document 1375 Filed 01/21/19 Page 2 of 4
2 QC Response to FTC’s Administrative Motion 

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

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introduce in its case; there is no basis for its request to defer disclosing rebuttal deposition 

testimony for several more days. Even if it is possible that the FTC will need to add rebuttal 

evidence based on some unanticipated element of the January 25 live witnesses’ testimony, that is 

not a reason to delay the FTC’s disclosure of all rebuttal witnesses and evidence. The FTC 

should be required to disclose rebuttal witnesses and evidence according to the schedule the Court 

and the parties have used during past weeks: 

 Wednesday, January 23 at 6:00 p.m.: the FTC identifies rebuttal witnesses and 

discloses rebuttal deposition designations 

 Thursday, January 24 at 8:00 a.m.: the parties disclose HPO evidence for the 

FTC’s rebuttal witnesses, and Qualcomm identifies completeness designations 

 Friday: January 25, at 8:00 a.m.: the parties submit high priority objections for 

the January 28 trial day 

Further, the FTC’s request to delay its rebuttal case poses another practical problem 

relating to the deadline for high priority objections to closing argument slides, which is currently 

5:00 p.m. on Monday, January 28. Qualcomm may need to address the FTC’s rebuttal case in its 

closing arguments. However, if the FTC’s rebuttal case does not even begin until the morning of 

January 28, it would be impractical for the parties to finish preparing and exchange closing 

argument slides, to meet and confer, and to brief high priority objections in the few hours 

between the close of the FTC’s case and the 5:00 p.m. HPO deadline. And it would be unfairly 

prejudicial to require Qualcomm to provide the FTC its closing argument slides before the FTC 

has rested its rebuttal case, when the FTC will have a unique, one-sided opportunity to address 

Qualcomm’s closing arguments in ongoing expert or other testimony. Accordingly, if the FTC’s 

Motion is granted, Qualcomm respectfully requests that the parties be ordered to submit high 

priority objections regarding closing argument slides no later than 8:00 a.m. on Tuesday, 

January 29. 

 

Case 5:17-cv-00220-LHK Document 1375 Filed 01/21/19 Page 3 of 4
3 QC Response to FTC’s Administrative Motion 

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

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Dated: January 21, 2019 

By: 

CRAVATH, SWAINE & MOORE LLP 

s/ Gary A. Bornstein 

 Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019-7475 

Tel.: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Robert A. Van Nest (SBN 84065) 

Eugene M. Paige (SBN 202849) 

Justina Sessions (SBN 270914) 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

Richard S. Taffet (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178-0060 

Tel.: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

Willard K. Tom (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Tel.: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Geoffrey T. Holtz (SBN 191370) 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Tel.: (415) 442-1000 

Fax: (415) 442-1001 

gholtz@morganlewis.com 

 Attorneys for Defendant 

QUALCOMM INCORPORATED 

Case 5:17-cv-00220-LHK Document 1375 Filed 01/21/19 Page 4 of 4