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Case No. 17-CV-00220-LHK 

ORDER DENYING MOTION TO QUASH TRIAL SUBPOENA

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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,

Plaintiff,

v.

QUALCOMM INCORPORATED,

Defendant.

Case No. 17-CV-00220-LHK 

ORDER DENYING MOTION TO 

QUASH TRIAL SUBPOENA

Re: Dkt. No. 1041

Before the Court is a motion to quash the trial subpoena served on Christopher Johnson 

(“Johnson”). ECF No. 1041 (“Mot.”). The Court DENIES the motion.

I. BACKGROUND

On January 26, 2018, Qualcomm served a Rule 30(b)(6) subpoena on Bain & Co. 

(“Bain”). Mot., Ex. 3. Bain provided management consulting services to third party Intel Co. 

(“Intel”). Mot. at 2. The subpoena sought information related to Bain’s understanding and analysis 

of Intel’s competition with Qualcomm. Mot. at 2. On February 23, 2018, Bain moved to quash the 

rule 30(b)(6) subpoena arguing, inter alia, that it imposed a substantial burden on Bain and that it 

improperly sought expert testimony from Bain. ECF No. 588. After a hearing, Magistrate Judge 

Cousins granted the motion in part, allowing the Rule 30(b)(6) deposition, but narrowing the 

Case 5:17-cv-00220-LHK Document 1196 Filed 01/08/19 Page 1 of 3
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Case No. 17-CV-00220-LHK 

ORDER DENYING MOTION TO QUASH TRIAL SUBPOENA

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United States District Court

Northern District of California

scope of topics to be addressed and limiting the duration of the deposition to three hours. ECF No. 

597. On March 28, 2018, Johnson testified as Bain’s 30(b)(6) representative.

On December 4, 2018, Qualcomm served a trial subpoena on Johnson. Mot., Ex. 4. On 

December 21, 2018, Bain and Johnson filed the motion to quash the subpoena. ECF No. 1041. On 

December 31, 2018, Qualcomm filed its opposition. ECF No. 1060. On January 2, 2019, Bain 

filed its reply. ECF No. 1069.

II. DISCUSSION

A. Hearsay

Bain contends that Johnson’s testimony would be inadmissible hearsay. However, Bain 

acknowledges that Johnson “worked on projects for Bain’s client Intel . . . from 2010 until mid2011, and again beginning 2015.” Mot. at 5. Bain cites no authority for its argument that “his 

knowledge would be inevitably comingled with his extensive Rule 30(b)(6) preparation.” Mot. at 

7. Accordingly, the Court finds that Johnson has personal knowledge as to testimony regarding his 

own work at Bain. This is a sufficient reason to reject Bain’s argument that any testimony would 

be impermissible hearsay.

Moreover, one of the key cases relied upon by Bain is Brazos River Auth. v. GE Ionics, 

Inc., 469 F.3d 416 (5th Cir. 2006). However, Brazos River Auth. holds that “if a rule 30(b)(6) 

witness is made available at trial, he should be allowed to testify as to matters within corporate 

knowledge to which he testified in deposition.” Id. at 435. Similarly, the Court agrees that Johnson 

should be allowed to testify as to the matters to which he testified in his Rule 30(b)(6) deposition.

Accordingly, the Court concludes that Johnson’s alleged lack of personal knowledge does 

not preclude Johnson from testifying to matters within Bain’s corporate knowledge to which 

Johnson has already testified, including Bain’s analysis of Intel’s competition with Qualcomm and 

Bain’s analysis of the relevant research output of Intel and Qualcomm. The Court finds that this 

testimony is relevant to the Court’s analysis of whether Qualcomm’s conduct had an 

anticompetitive effect by suppressing research activities of its competitors. However, this does not 

eliminate the restrictions of the hearsay rule. As explained by some of the cases upon which Bain 

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Case No. 17-CV-00220-LHK 

ORDER DENYING MOTION TO QUASH TRIAL SUBPOENA

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relies, Johnson may not testify to any material that constitutes hearsay not falling within one of the 

authorized exceptions. See Brazos River Auth., 469 F.3d at 435. Moreover, any appropriate 

objections may be asserted at trial.

B. Lay Testimony

Bain contends that Johnson’s testimony would be inadmissible as lay testimony and that 

Qualcomm seeks to improperly obtain unretained expert testimony. As this Court previously 

explained in its opinion rejecting a similar argument as to whether Qualcomm’s own employees 

could testify regarding the contributions of Qualcomm’s technologies to cellular standards and 

communications, Fed. R. Evid. 701 permits lay witness testimony that is founded in knowledge 

gained from the witness’s employment in the business at issue. ECF No. 973 at 3. In that Order, 

the Court concluded that “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.” Id. Similarly, here the Court concludes 

that Johnson may give lay testimony on topics including the ability and incentive of Qualcomm 

and its competitors to invest in technology, provided that such testimony is based on his 

experience gained during his employment.

III. CONCLUSION

For the foregoing reasons, the Court rejects Bain’s challenges to the admissibility of 

Johnson’s testimony and finds that Johnson’s testimony would be relevant. Accordingly, the Court 

DENIES Bain’s motion to quash.

IT IS SO ORDERED.

Dated: January 8, 2019

______________________________________

LUCY H. KOH

United States District Judge

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