REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 

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QUALCOMM’S HPOS AND RESPONSES FOR JANUARY 15, 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 AND RESPONSES 

FOR JANUARY 15, 2019 

(TRIAL DAY 6) 

 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 1 of 8
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QUALCOMM’S HPOS AND RESPONSES FOR JANUARY 15, 2019 TRIAL DAY 

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Pursuant to the Court’s October 24 Case Management Order (ECF No. 922), Qualcomm 

respectfully submits the following high priority objections and responses for January 15, 2019. 

Qualcomm’s HPO No. 1 (objection to FTC’s FRE 106 designation of Andrew 

Hong Tr. 249:9-16, asserted by the FTC to respond to Qualcomm’s designation of 

Tr. 248:22-249:8) 

In the Hong deposition, Qualcomm has designated a series of complete questions and 

answers about Samsung’s relationship with certain SEP holders. (Tr. 248:22-249:8.) Through 

its designation, the FTC attempts to introduce testimony regarding Samsung’s relationship with a 

different licensee. (Tr. 249:9-16.) The FTC previously has objected to Qualcomm’s 

completeness designations on the grounds that the purpose of a completeness designation 

pursuant to FRE 106 is “to prevent the introduction of ‘a misleadingly-tailored snippet,’ not to 

interject other issues or ‘merely cast doubt on [a witness’s] accuracy and reliability.’ United 

States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996).” (ECF No. 1074 at 1.) The FTC further 

argued that completeness designations may not be used merely “to rebut designated testimony” 

or to place the witness’s testimony “in context”. (Id. at 2.) Rather, the FTC said, a completeness 

designation should be allowed only “to correct a misleading impression . . . that is created by 

taking something out of context”, but is unnecessary when “the edited version of a statement did 

not ‘distort the meaning of the statement’”. (Id.) The Court sustained the FTC’s objections to 

Qualcomm’s completeness designations. (E.g., ECF No. 1099.) Qualcomm’s objection 

similarly should be sustained. 

Qualcomm’s HPO No. 2 (objection to FTC’s FRE 106 designation of Nanfen 

Yu Tr. 70:20-71:10, asserted by the FTC to respond to Qualcomm’s designation of 

Tr. 71:11-13) 

Qualcomm has designated testimony by Ms. Yu of Huawei concerning whether Huawei 

was paying royalties to Qualcomm during a time Huawei had an uninterrupted supply of modem 

chips from Qualcomm. (Tr. 71:11-13.) The FTC’s designation concerns the witness’s 

speculation as to why that was the case. (Tr. 70:20-71:10.) Because the FTC’s designation 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 2 of 8
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“introduces a new issue” and is unnecessary “to correct a misleading impression” or to prevent 

the “distort[ion] of the meaning of a statement”, it is an improper designation under FRE 106 

under the standard previously advocated by the FTC in this case. Qualcomm’s objection should 

be sustained. 

Qualcomm’s HPO No. 3 (objection to CX6823 designated for use with Irwin Jacobs 

because the witness lacks foundation and personal knowledge of the exhibit) 

Qualcomm objects to CX6823, a draft memo generated by members of Qualcomm’s 

accounting department, because Dr. Jacobs lacks personal knowledge of the exhibit or 

foundation to testify about it. The FTC has asserted that Dr. Jacobs has foundation for the 

document because he was Chairman of Qualcomm at the time, but company executives cannot 

be charged with knowledge of all documents generated by their employees—let alone draft

documents that there is no evidence that they saw or possessed. 

Qualcomm’s HPO No. 4 (objection to CX7991 designated for use with Irwin Jacobs 

because the witness lacks foundation and personal knowledge of the exhibit) 

Qualcomm objects to CX7991, which is another draft memo generated by members of 

Qualcomm’s accounting department, because Dr. Jacobs lacks personal knowledge of the exhibit 

or foundation to testify about it. The FTC has asserted that Dr. Jacobs has foundation for the 

document because he was Chairman of Qualcomm at the time, but company executives cannot 

be charged with knowledge of all documents generated by their employees—let alone draft

documents that there is no evidence that they saw or possessed. 

Qualcomm’s HPO No. 5 (objection to CX8267 designated for use with Irwin Jacobs 

because the witness lacks foundation and personal knowledge of the exhibit) 

Qualcomm objects to CX8267, which is an email that Dr. Jacobs did not send or receive, 

because Dr. Jacobs lacks personal knowledge of the exhibit and foundation to testify about it. 

The FTC has not provided any basis on which the Court could conclude that Dr. Jacobs has 

knowledge of the email. 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 3 of 8
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Qualcomm’s Response to FTC HPO No. 1 (QX9205 designated for use with Irwin 

Jacobs) 

QX9205 is a “Chronology of CDMA” that was generated by Qualcomm in the ordinary 

course of business. The FTC has indicated that it does not object to the entirety of QX9205, but 

only to “quotes from or summaries of portions of newspaper articles, websites or press releases” 

contained within the document. Qualcomm has offered to stipulate that such quotes or 

summaries would not be introduced for the truth of the matters asserted, yet the FTC continues to 

press a hearsay objection to unspecified other portions of the exhibit. The exhibit is a business 

record of Qualcomm’s CDMA R&D activities about which Dr. Jacobs will testify and is 

therefore admissible pursuant to FRE 803(6). 

Qualcomm’s Response to FTC HPO No. 2 (Kim Tr. 71:15-19 and QX0562) 

QX0562 is an email relating to the preparation of a memo for a Samsung executive 

regarding the 2011 negotiation of a patent agreement with Qualcomm. In the email, Inyup Kang, 

an executive vice president of Samsung, provides feedback regarding the memo. In particular, 

Mr. Kang says there is a “nearly zero percent chance” that Qualcomm would sue if Samsung 

manufactured modem chips without a license. The FTC’s foundation and hearsay objections 

should be overruled. First, the deponent Mr. Kim, as a custodian of the document and a 

Samsung employee who received it and participated in the negotiations at issue, can establish 

foundation for the exhibit. Indeed, he correctly identifies the author as the “executive vice 

president for the group that is charged with modem technology development” (Tr. 69:22-23) and 

someone who participated in development of modem technology (Tr. 70:18-20). Second, the 

document and testimony are admissible because they constitute “a statement of the declarant’s 

then-existing state of mind”. FRE 803(3). In the email, Mr. Kang states that “I think there is a 

nearly zero percent chance that [Qualcomm] would sue”. (QX0562) (emphasis added). 

Qualcomm does not seek to admit the testimony to establish that Qualcomm is unlikely to sue 

(the truth of the matter asserted) but to establish the state of mind of Samsung employees at the 

time, i.e., that they did not believe they were at any real risk of being sued by Qualcomm. This 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 4 of 8
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evidence undermines testimony that the FTC designated from Mr. Kim and other Samsung 

employees regarding Samsung’s supposed belief that it needed a license from Qualcomm to 

manufacture modem chips. 

Qualcomm’s Response to FTC HPO No. 3 (Blumberg Tr. 110:6-21, 112:3-113:4) 

The FTC has previously argued that Mr. Blumberg’s deposition testimony should be 

admitted because of his “personal involvement in Lenovo’s licensing program, including as the 

primary Lenovo executive who participated in licensing negotiations with Qualcomm”. (ECF 

No. 1074 at 3.) The FTC asserted that Mr. Blumberg’s deposition testimony was “based on 

personal knowledge of those negotiations, including communications and related events”, 

“provided evidence of how an OEM approaches license negotiations with Qualcomm”, and 

“establishes the positions that Lenovo took with Qualcomm, and the reasons for these positions”. 

(Id. at 4.) The FTC has asserted that Mr. Blumberg’s testimony demonstrated that Lenovo 

“accede[d] to oppressive terms”. (Id.) The Court overruled Qualcomm’s objections to 

Mr. Blumberg’s testimony. (ECF No. 1099.) 

Now, however, the FTC asserts that testimony designated by Qualcomm concerning 

Lenovo’s internal goals and approach to licensing negotiations with Qualcomm (such as that 

) are hearsay and lack foundation. (Tr. 110:6-

21; Tr. 112:3-113:4.) The FTC cannot have it both ways: if Mr. Blumberg—as the “primary 

Lenovo executive” negotiating with Qualcomm—has foundation to testify about how Lenovo 

“approache[d] license negotiations with Qualcomm” and the “reasons for [Lenovo’s] positions” 

during those negotiations, then he must have foundation to testify about Lenovo’s internal goals. 

Further, the testimony is admissible impeachment of Mr. Blumberg’s testimony that he and other 

Lenovo executives believed Qualcomm’s royalty rate was “excessive” or resulted from chip 

leverage. (Tr. 273:8-17; Tr. 83:8-21.) 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 5 of 8
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Qualcomm’s Response to FTC HPO No. 4 (Mahe Tr. 124:9-14 and 125:12-13 and 

QX1464) 

QX1464 is an email among Isabel Mahe and other Apple engineers. Ms. Mahe had 

foundation to provide testimony about QX1464 and statements in the exhibit, and the FTC’s 

hearsay and foundation objections to the testimony and document should be overruled. Indeed, 

the testimony subject to the FTC’s objection concerns Ms. Mahe’s own statements in the email 

she sent (Tr. 124:9-14; Tr. 125:7-8; Tr. 125:12-13), and she was either an author or recipient of 

each email in the email chain. For those reasons also, the exhibit is not hearsay, as the FTC had 

a chance to cross-examine Ms. Mahe concerning the statements in her email. Indeed, the FTC 

repeatedly has examined witnesses by asking them to confirm or expand upon a statement they 

previously made—including in its own designations of Ms. Mahe’s testimony (Tr. 237:14-20 

(asking Ms. Mahe “What did you mean” by a statement in a document))—and it provides no 

reason why that would be an improper mode of cross-examination when Qualcomm proceeds 

that way with respect to witnesses that are adverse to Qualcomm. 

Qualcomm’s Response to FTC HPO No. 5 (QX0113, addressed by designated 

testimony of Thomas Lindner) 

QX0113 is an exhibit to the deposition of Thomas Lindner of Intel and is designated to be 

introduced through Qualcomm’s designations of Mr. Lindner’s testimony. The first-in-time 

email (on the bottom of page -858) is an email from Matthias Sauer of Apple to Intel posing 

questions about Intel’s modem chip offerings. The FTC does not specifically object to that 

email, and at least this portion of the exhibit is undisputedly admissible. The remainder of the 

exhibit is a discussion among Intel engineers regarding Mr. Sauer’s questions, Apple’s technical 

requirements and whether Intel’s modem chip offerings could meet those requirements. The 

email is a contemporaneous record of regularly conducted interactions between Apple and Intel 

engineers and therefore an admissible business record pursuant to FRE 803(6). In fact, 

Mr. Lindner testified that the portions of the email at the top of page -856 were extracted from a 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 6 of 8
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. (Lindner Tr. 156:13-18.) 

In the alternative, the exhibit is admissible evidence of Apple and Intel’s state of mind 

pursuant to FRE 803(3). The FTC previously has argued that documents concerning interactions 

between OEMs and modem chip suppliers were admissible pursuant to FRE 803(3) because they 

showed the supplier’s “state of mind as a prospective supplier” of modem chips, and the Court 

overruled Qualcomm’s hearsay objection. (ECF No. 1121 (FTC HPO No. 2).) The FTC’s 

objection should be similarly overruled. 

Dated: January 14, 2019 Respectfully submitted, 

 

CRAVATH, SWAINE & MOORE LLP 

 s/ Gary A. Bornstein 

Gary A. Bornstein 

Yonatan Even 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

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 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 7 of 8
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QUALCOMM’S HPOS AND RESPONSES FOR JANUARY 15, 2019 TRIAL DAY 

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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 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated 

Case 5:17-cv-00220-LHK Document 1288 Filed 01/14/19 Page 8 of 8