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QUALCOMM’S HPOS FOR JANUARY 4, 2019 TRIAL DAY

17-CV-0220-LHK-NMC

KEKER VAN NEST & PETERS LLP

Robert A. Van Nest

Eugene M. Paige

Justina K. Sessions

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 676-2289

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, NY 10019-7475

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

MORGAN, LEWIS & BOCKIUS LLP

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com

101 Park Avenue

New York, NY 10178-0060

Telephone: (212) 309-0060

Facsimile: (212) 309-6001

MORGAN, LEWIS & BOCKIUS LLP

Geoffrey T. Holtz (SBN 191370)

Geoffrey.holtz@morganlewis.com

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

Attorneys for Defendant

QUALCOMM INCORPORATED

Additional Counsel listed on the Signature 

Page

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-0220-LHK-NMC

QUALCOMM’S HIGH PRIORITY 

OBJECTIONS FOR 

JANUARY 4, 2019 TRIAL DAY

Pursuant to the Court’s October 24 Case Management Order, Qualcomm respectfully 

submits the following high priority objections for the January 4, 2019 Trial Day. 

Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 1 of 7
1 HPO No.1. Qualcomm objects to the following lines of FTC deposition designations 

2 from third-party witness fra Blumberg of Lenovo: Tr. 130:23-132:7; 148:25-149:13; and 271 :23-

3 273: 17. The testimony reflects Mr. Blumberg' s inadmissible opinions on the law and is 

4 therefore improper lay legal opinion pursuant to Federal Rules of Evidence 402, 403, and 701. 

5 fu the testimony designated by the FTC, Mr. Blumberg opines on topics such as the 

6 " for a patent license (130:23-132:7) and whether certain licensing tenns are 

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" or result from ' ." (Tr. 148:25-

149:13, 271 :23-273:17.) Those are legal opinions, and Mr. Blumberg freely admits that they are 

based, at least in pa1t, on ' 

" (Tr. 30:4-7.) Fmther, Mr. Blumberg's related testimony that, based on 

" 

with Qualcomm, Mr. Blumberg believed that Qualcomm had committed, ...... ,,

, is both 

improper lay legal opinion and inadmissible hearsay that should be excluded pursuant to Federal 

Rule of Evidence 802. (Tr. 44:23-45:13.) 

During the patties' meet-and-confer, the FTC suggested that if a witness stated his legal 

opinion during the course of negotiations or othe1wise held that legal opinion while negotiating, 

that testimony is relevant to the witness's "state of mind", and the witness can testify about those 

legal opinions.1 The FTC is Inistaken. Qualcomm is not awat·e of any case where a legal 

opinion was found to be relevant and admissible to show the "state of mind" of a negotiating 

patty. Rather, the law is well settled within the Ninth Circuit that no witness- not a lay witness, 

an expe1t witness, or a witness who is an attorney-may offer legal conclusions or opinions on 

issues oflaw. Nationwide Transport Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1059 (9th Cir. 

2008) (excluding testimony about "how UCC § 9-406 applied to the facts of the case"). The 

Ninth Circuit affomed the exclusion of such testimony under Rule 701 because it was improper 

1 The FTC has also reserved its right to asse1t that the testimony is admissible for the 

accuracy of the legal opinion asserted therein. 

QUALCOMM'S HPOS FOR JANUARY 4, 2019 TRIAL DAY 

17-CV-0220-LHK-NMC

Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 2 of 7
1 legal opinion and thus "not helpful to a clear understanding of the testimony or a fact in issue." 

2 Id. That the lay witness happens to be an attorney does not change the result. See Trnlove v. 

3 D'Amico, 2018 WL 1090248, at *1 (N.D. Cal. Feb. 27, 2018) (excluding fonner disti·ict 

4 attorney's opinions regarding probable cause because these were "legal conclusions as to the 

5 ultimate issues in the case"). fudeed, even an expert witness "cannot give an opinion as to her 

6 legal conclusion, i.e., an opinion on an ultimate issue oflaw." Mukhtar v. Cal. State Univ., 

7 Hayward, 299 F.3d 1053, 1066 n. 10 (9th Cir. 2002) (internal quotations omitted). Such legal 

8 opinions are improper and should be excluded. 

9 HPO No. 2. The FTC also has designated deposition testimony by Mr. Blumberg for 

10 which he had no personal knowledge or othe1wise lacks foundation, specifically: Tr. 155:12-

11 156:11; 160:4-15; 214:3-215:5; 228:20-230:7. The FTC must establish a foundation for the 

12 testimony it presents. FRE 602 (testimony requires "personal knowledge of the matter"); Gwynn 

13 v. City of Philadelphia, 719 F.3d 295, 304 (3rd Cir. 2013) (offering pa1ty has burden to establish

14 foundation); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) 

15 (excluding testimony based on speculation). Here, the FTC seeks to admit testimony regarding 

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21 -(Tr. 256:14-257:5.) With no such knowledge, he has no basis to testify whether

22 Lenovo or Motorola ' 

23 -· His testimony on these issues is inadmissible speculation, or, at best, based on

24 inadmissible hearsay. FRE 602,802; Carmen, 237 F.3d at 1026. 

25 Mr. Bllllllberg admitted that he 

27 also testified that he has no knowledge whether 

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QUALCOMM'S HPOS FOR JANUARY 4, 2019 TRIAL DAY 

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Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 3 of 7
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(Tr. 42:6-12.) Without any knowledge of 

4 HPO No. 3. The FTC designated testimony by Mr. Blumberg that should be excluded 

5 under Federal Rule of Evidence 403, specifically: Tr. 155:12-156:11. Mr. Blumberg testified in 

6 April 2018 that Lenovo has no ' 

8 months later, in October 2018, Lenovo and Motorola did

9 .... (which was produced to the FTC). The Comt has rnled that agreements post-dating 

10 the discove1y cutoff, including the October 2018 Lenovo agreement with Qualcomm, are 

11 excluded. (ECF 997.) But it would be highly misleading and prejudicial for the FTC to present 

12 evidence from a third party stating that it could not , knowing that 

13 Qualcomm has been precluded from introducing evidence to establish the contraiy. Here, the 

14 designated testimony would se1ve only to create a false and incomplete record. The FTC's only 

15 response is that the testimony is not misleading because the deposition is dated prior to the 

16 signing of the license agreement, but that does not cure the resulting prejudice to Qualcomm. 

17 Any relevance is outweighed by the prejudicial effect of the false impression. 

18 HPO No. 4. The FTC designated testimony by Brian Chong that should be excluded 

19 under Federal Rule of Evidence 61 l(c), specifically: Tr. 360:13-18. Mr. Chong, an employee of 

20 Wistron, one of Apple's contract manufacturers provided this testimony in response to a clearly 

21 leading question posed by counsel for Apple; the answer is therefore baiTed by Federal Rule of 

22 Evidence 611 ( c) ("Leading questions should not be used on direct examination except as 

23 necessary to develop the witness's testimony."). The FTC asse1ted that the leading question was 

24 permissible because it concerned "prelimina1y matters", but the question did not relate to such 

25 "undisputed" preliminary matters such as the witness's identity, background, or relationship to 

26 the paities. See F.R.E. 611 Adviso1y Committee Note subd. (c). The testimony is fmther 

27 inadmissible because the question misstated the witness's prior testimony, which compounds the 

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QUALCOMM'S HPOS FOR JANUARY 4, 2019 TRIAL DAY 

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Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 4 of 7
1 unfairness of the leading question. Specifically, Mr. Chong was asked whether he remembered 

3 unable to locate such testimony in the deposition and the FTC, during the parties' meet-and4 confer, declined to identify where in the designated testimony or othe1wise Mr. Chong was asked 

5 such questions or testified about such a negotiation, telling Qualcomm that it was equally 

6 capable of reviewing the transcript. 

7 HPO No. 5. The FTC designated testimony by Monica Yang that should be excluded 

8 under Federal Rule of Evidence 602, specifically: Tr. 184:6-16, 226:19-227:5, 244:17-245:22. 

9 Ms. Yang, an employee of Pegatron, another of Apple's contract manufacturers, has no personal 

10 knowledge and the testimony lacks foundation. 

11 fu the designated passages, Ms. Yang testifies that it was her' 

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. (Tr. 184:6-16.) Further, elsewhere in 

Che did not know whether 

17 Qualcomm ever . (Tr. 184:2-5; 186:21-

18 187:5.) Ms. Yang nonetheless testified that in the hypothetical situation in which Qualcomm did 

19 not sell Pegatron modem chips (Tr. 226:19-20), Pegatron would lose bargaining power (Tr. 

20 227:3-5.) And, despite not being "in procurement", Ms. Yang testified-in response to another 

21 leading question posed by Apple's counsel-that 

23 244:23-245:4.) It is the FTC's burden to establish a proper foundation for the testimony it offers. 

24 Gwynn, 719 F.3d at 304. During the paities' meet and confer, the FTC declined to identify 

25 testimony that would establish the foundation for any of this testimony. The testimony should be 

26 excluded. 

27 HPO No. 6. The FTC designated testimony by Nanfen Yu that should be excluded under 

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QUALCOMM'S HPOS FOR JANUARY 4, 2019 TRIAL DAY 

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Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 5 of 7
1 Federal Rule of Evidence 602, specifically: Tr. 49:13; 141:24-143:21. Ms. Yu-licensing 

2 counsel in the IPR Department at Huawei-provided testimony that is speculative, not based on 

3 personal knowledge, and lacking foundation. The FTC designated testimony where Ms. Yu was 

4 asked about 

5 ..... (Tr. 49:13-23, 141:24-143:21.) Ms. Yu's testimony is purely speculative because 

6 (1) she lacks personal knowledge of

7 provide any foundation; and (2) 

, and the FTC fails to 

(49:8-10). See 

8 FRE 602; Escobar v. Airbus Helicopters SAS, No. 13-00598 HG-RLP, 2016 WL 5897554, at *6 

9 (D. Haw. Oct. 7, 2016) ("[s]peculative testimony about how another might have acted without 

10 personal knowledge is not admissible as evidence") Sempra Energy v. Marsh USA, Inc., 

11 No. CV0705431SJOJCX, 2008 WL 11335050, at *13-16 (C.D. Cal. Oct. 15, 2008) (excluding 

12 "speculative" deposition testimony regarding items outside of the witness's "personal knowledge 

13 and experience"). As a Huawei in-house lawyer, Ms. Yu focuses on licensing at Huawei-not 

14 buying chipsets. (9:11-14, 10:21-14 (testifying that she' . ") 

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•" Ms. Yu testified that her 

" (48:18-21.) As such, there

. It should be excluded. 

Dated: January 3, 2019 Respectfully submitted, 

CRA VATH, SWAINE & MOORE LLP 

sl Gary A. Bornstein 

Gary A. Bornstein 

Y onatan Even 

Worldwide Plaza 

825 Eighth A venue 

New York, NY 10019 

QUALCOMM'S HPOS FOR JANUARY 4, 2019 TRIAL DAY 

17-CV-0220-LHK-NMC

Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 6 of 7
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QUALCOMM’S HPOS FOR JANUARY 4, 2019 TRIAL DAY

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6

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

Robert A. Van Nest

Eugene M. Paige

Justina K. Sessions

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

Telephone: (415) 676-2289

Facsimile: (415) 397-7188

rvannest@keker.com

epaige@keker.com

jsessions@keker.com

Richard S. Taffet

MORGAN, LEWIS & BOCKIUS LLP

101 Park Avenue

New York, NY 10178

Telephone: (212) 369-6000

Facsimile: (212) 309-6001

richard.taffet@morganlewis.com

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

donn.pickett@morganlewis.com

geoffrey.holtz@morganlewis.com

Attorneys for Qualcomm Incorporated

Case 5:17-cv-00220-LHK Document 1073 Filed 01/03/19 Page 7 of 7