FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE RE: HUAWEI WITNESSES

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

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Jennifer Milici, D.C. Bar No. 987096 

Joseph R. Baker, D.C. Bar No. 490802 

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. 1 TO EXCLUDE TESTIMONY 

FROM HUAWEI WITNESSES 

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 961-3 Filed 12/04/18 Page 1 of 9 Case 5:17-cv-00220-LHK Document 953 Filed 12/03/18 Page 1 of 5
 FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE RE: HUAWEI WITNESSES

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

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Qualcomm moves to exclude probative testimony from three witnesses employed by 

Huawei, each of whom Qualcomm deposed for several hours. None of the authorities Qualcomm 

cites support exclusion here. The law does not entitle litigants to demand costly custodial 

document searches as a condition to admitting nonparty testimony. The Court should deny 

Qualcomm’s motion. 

Qualcomm’s complaint is that Huawei, which produced data and more than 200,000 pages 

of documents, including communications and agreements with Qualcomm and internal business 

analyses, did not conduct an even broader document search—discovery Qualcomm would never 

have been entitled to had its Hague Convention request been granted. J. Disc. Stmt. 3–4 & Ex. A, 

Jan. 31, 2018, ECF No. 524; see Richmark Corp. v. Timber Falling Consult., 959 F.2d 1468, 

1475 (9th Cir. 1992) (when enforcing discovery requests made on foreign entities, courts must 

consider burden of responding and “[g]eneralized searches for information . . . are discouraged”). 

Qualcomm does not cite a single case in which a court has excluded testimony voluntarily 

provided by a foreign witness, under oath and subject to cross-examination, because the witness 

or her employer did not also voluntarily conduct a custodial email search, which is what 

Qualcomm demanded from Huawei. Unable to find any precedent for the relief it seeks, 

Qualcomm instead relies on decisions concerning Federal Rule of Evidence 804, which excludes 

former testimony from the rule against hearsay. But hearsay is admissible at trial if allowed by the 

Federal Rules of Evidence or “by other rules prescribed by the Supreme Court pursuant to 

statutory authority or by Act of Congress.” Fed. R. Evid. 802. The Ninth Circuit has held that 

Rule 32 “is one of these other rules,” and therefore, “an independent exception to the hearsay 

rule.” Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 914 (9th Cir. 2008). Rule 32(a) allows 

a party to use a deposition at trial if the witness is “outside the United States” as long as the 

opposing party had the opportunity to attend the deposition or received reasonable notice. Fed. R. 

Civ. P. 32(a)(1) & (a)(4)(B). Huawei witnesses are outside the United States and Qualcomm not 

only had the opportunity to attend the depositions, its counsel actually attended and crossexamined the witnesses for hours. Thus, the depositions are admissible under Rule 32. 

Rule 804 does not apply and, in any event, provides no support for Qualcomm’s 

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FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE RE: HUAWEI WITNESSES

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

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arguments. Pursuant to Rule 804(b)(1), former testimony from an unavailable declarant is 

admissible if it is offered against a party who had an opportunity for cross-examination. Rule 

804(b)(1) ensures a party the opportunity to ask probing questions, no more. 

The cases cited by Qualcomm do not support its novel interpretation of the rule (or its 

assumption that Rule 804 even applies here). For example, in In re Paducah Towing Co., 692 

F.2d 412, 418–419 (6th Cir. 1982), the court held that the relevant party (the Coast Guard) did not 

have an opportunity to meaningfully cross-examine the declarant because it was not represented 

by counsel at the hearing in which the testimony was given and “because the scope of the Coast 

Guard’s . . . examination was improperly limited” by an administrative law judge. Here, 

Qualcomm was represented by counsel at the depositions and its extensive examination was not 

subject to any improper limitations. 

The other cases Qualcomm cites are similarly irrelevant. In Kirk v. Raymark Indus., Inc., 

61 F.3d 147, 166 (3rd Cir. 1995), the court held that testimony from a prior proceeding was 

inadmissible where the court lacked sufficient information about the prior proceeding to 

determine whether the defendant had a similar motive to cross-examine the declarant’s statements 

as it would have at trial in the pending action. And in United States v. Cohen, the court excluded 

as hearsay non-responsive answers to questions the plaintiff had submitted through Hague 

Convention process to a witness in Liechtenstein. Cohen, No. 08-3282, 2012 WL 289769, at *4 

(C.D. Ill. Jan. 31, 2012). Because the witness had refused to answer the propounded questions, 

the court held that neither “party was able to develop his testimony” under Rule 804(b)(1). Id.

The court said nothing about a purportedly insufficient document production as a factor for 

excluding the testimony. Id.

Unable to find any authority supporting its position, Qualcomm instead asks this Court to 

rewrite the Federal Rules based upon the thinnest of reeds. First, Qualcomm cites an email from 

the FTC reserving its right to object if a nonparty called by Qualcomm to testify at trial refused to 

produce any documents or to provide deposition testimony. Def.’s MIL No. 1, at 2–3. Huawei did 

both. In any event, the FTC did not seek to depart from settled evidence law in reserving its right 

to object to testimony from a witness who, unlike the Huawei witnesses, refused to be deposed. 

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FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE RE: HUAWEI WITNESSES

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

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Second, Qualcomm asserts that the testimony of Huawei witnesses must be excluded 

because there is no point to a lawsuit based on “lies.” Def.’s MIL No. 1, at 2. Qualcomm’s 

insinuation that, because Huawei did not voluntarily conduct a document search to Qualcomm’s 

liking, its employees are likely to lie under oath is unwarranted.1 

Third, Qualcomm argues that the testimony of Huawei witnesses, provided under oath and 

subjected to cross-examination, should be disregarded because Huawei would benefit from a 

ruling against Qualcomm. Def.’s MIL No. 1, at 2–3. But the entire premise of a lawsuit charging 

unlawful maintenance of monopoly power is that a successful prosecution would benefit the 

monopolist’s customers and affect competitors. There is no authority for the proposition that 

testimony from market participants affected by antitrust violations is presumptively unreliable. 

Finally, the law does not entitle Qualcomm to demand broad and expensive custodial 

document searches on every nonparty as a condition to admitting the nonparty’s deposition 

testimony. Indeed, Qualcomm has designated for trial the deposition testimony of two witnesses 

from Nokia Technologies Oy, even though Nokia produced only about 260 documents (far fewer 

than Huawei), and refused to comply with FTC requests for production of various materials.2

 Yet 

neither the FTC nor Qualcomm claims that Nokia’s testimony is prejudicial under Rule 403. 

Qualcomm’s real grievance is that the Huawei witnesses’ testimony supports the FTC’s theories 

more than Qualcomm’s. Def’s MIL No. 1, at 3; e.g., Milici Decl. Ex. 1, at 60:22-63:5, 64:2-

66:19. That is not a cognizable “unfair prejudice.” United States v. Fox, 627 F. App’x 608, 609 

(9th Cir. 2015) (“Evidence is not unfairly prejudicial in violation of Rule 403 merely because it 

tends to prove a defendant’s guilt.”) (quotation marks omitted). At bottom, Qualcomm is trying to 

turn its discovery dispute with Huawei into a basis for excluding plainly admissible evidence 

favorable to the FTC. For the reasons explained above, Qualcomm’s request has no basis in law. 

 

1

 Qualcomm cites Valley Eng’rs v. Electric Eng’g Co., 158 F.3d 1051, 1058 (9th Cir. 1998), in 

which a party was sanctioned for deliberately withholding a critical document that disproved its 

own position. That decision provides no support for the inflammatory proposition that every 

single person employed by a foreign third party that declines to produce the full scope of 

documents demanded by Qualcomm is incapable of providing any honest or credible testimony. 

2

 Multiple nonparties whose deposition testimony the parties have designated did not make full 

custodial productions. 

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FTC OPPOSITION TO QUALCOMM’S MOTION IN 

LIMINE RE: HUAWEI WITNESSES

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 

J. Alexander Ansaldo 

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 

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DECLARATION OF JENNIFER MILICI

Case No. 17-cv-00220-LHK 

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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 

DECLARATION OF JENNIFER MILICI 

IN SUPPORT OF PLAINTIFF FEDERAL 

TRADE COMMISSION’S OPPOSITION 

TO QUALCOMM’S MOTION IN LIMINE 

NO. 1 TO EXCLUDE TESTIMONY FROM 

HUAWEI WITNESSES 

Date: December 13, 2018 

Time: 1:30 p.m. 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

 

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DECLARATION OF JENNIFER MILICI

Case No. 17-cv-00220-LHK 

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I, Jennifer Milici, do hereby declare and state as follows: 

1. I am an active member in good standing with the District of Columbia Bar. I am 

employed by the Federal Trade Commission (“FTC”), an agency of the United States 

government. I am one of the attorneys of record in this matter for the FTC. I have personal 

knowledge of the matters set forth in this declaration, and if called upon as a witness I could and 

would testify competently. 

2. I respectfully submit this declaration in support of the FTC’s Opposition to 

Qualcomm’s Motion in Limine No. 1 to Exclude Testimony from Huawei Witnesses. 

3. Attached as Exhibit 1 is a true and correct copy of excerpts from the Deposition 

of Jian Xin (Jason) Ding, March 12, 2018 

I declare under penalty of perjury that the foregoing is true and correct. 

Executed this 3rd day of December, 2018. 

/s/ Jennifer Milici 

Jennifer Milici 

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EXHIBIT 1

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FILED UNDER SEAL

REDACTED VERSION OF DOCUMENTS SOUGHT TO BE SEALED

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