Jennifer Milici, D.C. Bar No. 987096

Wesley G. Carson, D.C. Bar No. 1009899

J. Alexander Ansaldo, Va. Bar No. 75870

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

Elizabeth A. Gillen, Cal. Bar No. 260667

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

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

KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest (SBN 84065)

Asim M. Bhansali (SBN 194925)

Eugene M. Paige (SBN 202849)

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 391-5400

Facsimile: (415) 397-7188

Attorneys for Defendant

QUALCOMM INCORPORATED

Lin W. Kahn, Cal. Bar No. 261387

Federal Trade Commission

901 Market Street, Suite 570

San Francisco, CA 94103

(415) 848-5115; (415) 848-5184 (fax)

lkahn@ftc.gov

MORGAN, LEWIS & BOCKIUS LLP

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com

Donn P. Pickett (SBN 72257)

donn.pickett@morganlewis.com

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

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-NMC

DEFENDANT QUALCOMM 

INCORPORATED’S AND PLAINTIFF 

FEDERAL TRADE COMMISSION’S 

JOINT DISCOVERY STATEMENT

Courtroom: 7, 4th Floor

Judge: Hon. Nathanael M. Cousins 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 1 of 11
1

 Qualcomm and the FTC submit this joint statement. The parties have met and conferred 

on the issue discussed herein and have not been able to reach agreement. 

Qualcomm’s Position

Qualcomm seeks to have nonparty Huawei Device Co., Ltd. (“Huawei”) and its 

employees stricken from the FTC’s Rule 26(a) disclosures. Huawei is a competitor, licensee and 

customer of Qualcomm. Accordingly, Huawei has a strong commercial interest in the outcome 

of this case, and is seeking affirmatively to assist the FTC. But Huawei is doing so without 

abiding by ordinary discovery rules by exploiting its status as a Chinese company that is beyond 

this Court’s jurisdiction. Huawei is using its foreign status to cherry-pick the documents and 

testimony it provides, in order to advance its commercial interests, while denying Qualcomm the 

discovery it needs to defend itself. In particular, Huawei voluntarily agreed to make witnesses 

from China available to the FTC, but refuses to provide Qualcomm with documents necessary to 

examine those witnesses. Allowing Huawei’s selective participation in discovery would lead to 

the creation of a prejudicial and unreliable record, by denying Qualcomm the ability to challenge 

the veracity of deposition testimony provided by a fierce adversary. To avoid unfair prejudice to 

Qualcomm, Huawei and its employees should be stricken from the FTC’s Rule 26(a) disclosures.

A. Relevant Facts 

On June 23, 2017, Qualcomm served subpoenas for the production of documents on 

Huawei Device U.S.A. Inc., a U.S. subsidiary of Huawei. Qualcomm also filed Letters of 

Request pursuant to the Hague Convention seeking document discovery from Huawei itself. 

On December 4, 2017, Qualcomm and the FTC exchanged preliminary witness lists. 

The FTC’s focus below 

on the number of documents Huawei is producing is off point; the problem here is that Huawei is 

picking and choosing which documents it will produce, thereby gerrymandering the record.1 

 

1 The FTC faults Qualcomm for not providing a “sworn declaration” regarding the discussions with Huawei’s 

counsel and has attached a letter Huawei’s counsel wrote, presumably at the FTC’s request, after Qualcomm 

provided the FTC its portion of this filing. The fact that Huawei and the FTC are coordinating their efforts to defeat 

this motion further highlights the extent to which Huawei’s actions are deliberately prejudicing Qualcomm. 

Consistent with this Court’s stated preference, Qualcomm did not attach discovery correspondence to its portion of 

this statement, but because the FTC has insisted on doing so, Qualcomm has included its reply to Huawei’s counsel, 

 Ex. B. In any 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 2 of 11
2

B. The Court Should Strike Huawei from the FTC’s Rule 26(a) Disclosures.

The FTC’s inclusion of Huawei on its Rule 26(a) disclosures—and its inclusion of 

Huawei employees on its preliminary witness list—threatens the integrity of these proceedings. 

In light of its strong commercial interest in the outcome of this litigation, Huawei is seeking to 

use its position as a foreign non-party to cherry pick the evidence that it makes available to the 

Court. Federal courts have the inherent power to safeguard the integrity of the discovery 

process. Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 

1992). Courts in this district have found that parties that fail to produce documents may be 

excluded from testifying. Evenflow Plumbing Co. v. Pac. Bell Directory, No. C-3:04-CV-00795 

EDL, 2005 WL 954469, at *2 (N.D. Cal. Apr. 26, 2005). A nonparty with an interest in the 

litigation may not unreasonably refuse to provide documents or other discovery to the 

disadvantage of a party; courts, including those in this district, have refused to admit the 

testimony of foreign nonparties when they refuse to provide appropriate discovery. In re CRT 

Antitrust Litig., No. 1917, 2015 WL 12966202 at *3 (N.D. Cal. Jan. 2, 2015) (foreign nonparty 

who failed to appear for a deposition was “deemed unavailable” to testify at trial); United States 

v. Cohen, No. 08-3282, 2012 WL 289769 at *8 (C.D. Ill. Jan. 31, 2012) (refusing to admit

foreign nonparty’s testimony from a foreign hearing under the residual exception to the hearsay

rule in part because of a lack of document discovery). The FTC attempts to distinguish CRT on

the basis that the witness could testify at trial if he agreed to be deposed. Importantly, however,

there was a custodial production of documents from the witness in that case. In re CRT, 2015

WL 12966202 at *2. Indeed, the FTC itself has stated in this litigation that it “intends to object

to the introduction at trial of documentary or testimonial evidence from entities or individuals

who are not subject to compulsory process in the United States, if such entities or individuals

decline to produce documents or give deposition testimony at the FTC’s request”.2

Proceeding with testimony from Huawei witnesses would implicate the same 

fundamental fairness concerns at issue in the above cases. Huawei is purposefully omitting 

documents that are key for Qualcomm to be able to conduct an effective, level-field examination. 

For example, Huawei’s testimony will undoubtedly relate to licensing negotiations with 

Qualcomm.

 These negotiations, 

especially where Huawei is the licensor, will be important to challenging the consistency and 

credibility of Huawei’s assertions. Moreover, Huawei is a large purchaser of modem chips and a 

competing supplier of modem chips, 

 And contrary to the 

FTC’s suggestion, 

 The question is not, as the FTC asserts, whether the 

quantity of Huawei’s production is “grossly insufficient”; the problem is that Huawei’s 

production is intentionally gerrymandered to further one side’s position. 

The appropriate remedy is to strike Huawei from the FTC’s Rule 26(a) disclosures. The 

FTC contends that there is no precedent for this approach, but there is also no precedent for a 

foreign entity to voluntarily insert itself into judicial proceedings by making witnesses available 

event, the Court need not take evidence and make a factual finding about the content of the discussions between 

counsel. 

2

 Email from J. Milici to Y. Even, dated December 7, 2017. 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 3 of 11
3

while continuing to use its foreign status to resist basic document discovery. Ordinarily, if a 

non-party were engaging in this gamesmanship, Qualcomm could move to compel appropriate 

discovery to prevent the prejudice arising from a manipulated record, but that option is not 

available because Huawei is outside the Court’s jurisdiction. Accordingly, the best remedy is to 

strike Huawei from the FTC’s Rule 26(a) disclosures, such that Huawei witnesses need not be 

deposed, and the manipulated record will not be created in the first place. This preemptive 

remedy is superior to a motion in limine many months down the line—after Huawei witnesses 

are deposed—so that the parties do not waste time and resources on pointless and prejudicial 

discovery on a compressed schedule, and so that the record is not infected with unreliable 

testimony from a commercially motivated party not subject to the normal rules of discovery. 

C. Qualcomm’s Motion is Timely

The FTC also argues that the motion is untimely, contending that Qualcomm should have 

brought this dispute to the Court before the December 15, 2017 deadline to resolve discovery 

disputes with third parties. First, this dispute is not subject to the December 15 deadline because 

it is not a discovery dispute with Huawei; it is a dispute with the FTC about the scope of its 

Rule 26(a) disclosures.3 Second, Qualcomm was not aware of Huawei’s intent to voluntarily

make witnesses available to the FTC until receiving the FTC’s preliminary witness list on 

December 4, 2017. Qualcomm then immediately asked Huawei, once again, for a custodial 

production. Third, Qualcomm did advise the Court of this issue in its December 15, 2017 status 

update. Huawei and Qualcomm were at that time continuing to negotiate the scope of Huawei’s 

discovery. Thus, the dispute between Qualcomm and the FTC regarding Huawei was not ripe 

until after December 15, 2017, through no fault of Qualcomm’s. 

FTC’s Position

Qualcomm’s unprecedented request to “strike witnesses” from the FTC’s initial 

disclosures before even taking their depositions should be denied because (1) the factual 

underpinnings of its request are disputed, (2) there is no legal authority supporting its request, 

and (3) the request for relief is premature. If, after deposing the Huawei witnesses, Qualcomm 

maintains at trial that it would be prejudiced by the testimony of a Huawei employee on a 

specific topic, it should seek relief from Judge Koh at that time 

A. Qualcomm Has Not Established a Factual Basis For The Relief It Seeks

Qualcomm’s claim that it lacks sufficient information to depose Huawei employees is 

unfounded. Huawei is a customer and licensee of Qualcomm’s and its employees will testify

regarding Huawei’s dealings with Qualcomm—a topic on which Qualcomm is equally 

knowledgeable. 

The FTC did not participate in discussions between Huawei and Qualcomm regarding 

Qualcomm’s subpoena or Letters of Request. In recent correspondence, however, Huawei has 

disputed Qualcomm’s version of events. 

3

 Huawei asserts that it is not subject to the jurisdiction of this—or any other U.S.—court, such that Qualcomm 

could not have brought a motion to compel production by Huawei, whether by December 15 or otherwise. 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 4 of 11
4

There is no evidentiary record upon which the FTC or the Court can evaluate the 

differing accounts of the negotiations between Qualcomm and Huawei. As set out above, 

Qualcomm apparently disagrees that it ever accepted Huawei’s proposal.4 But Qualcomm’s

unilateral assertions that Huawei acted in bad faith, absent a sworn declaration detailing the 

specific document requests it made or the searches that it proposed, or any other supporting 

evidence, cannot be sufficient grounds to limit the FTC’s proof at trial.5

Setting aside these conflicting accounts, if Qualcomm believed that Huawei was 

improperly limiting its document production in a way that would prejudice it, it should have 

raised this issue with the Court in a timely manner. Judge Koh set a December 15, 2017 deadline 

for the parties to raise third-party document discovery disputes, the very purpose of which was to 

address any issues so that document discovery could be completed before depositions began, and 

depositions could conclude by the fact discovery deadline. See Nov.15, 2017 Case Mgmt. Conf. 

Tr. at 14-15. The FTC listed Huawei on the initial disclosures it served in April 2017 and 

promptly thereafter produced transcripts of relevant investigational hearings. Thus, Qualcomm 

knew long before December 4 that the FTC may call Huawei witnesses at trial and yet chose not 

to diligently pursue the discovery that it now claims is essential.6

B. There is No Legal Basis For Striking a Witness From a Rule 26 Disclosure

Even if one could accept, without evidence, Qualcomm’s characterization of its dispute

with Huawei, there is no legal basis or precedent for Qualcomm’s request that the Court “strike 

Huawei from the FTC’s Rule 26(a) disclosures.” Rule 26 disclosures do not represent a final 

trial witness list; the very purpose of exchanging disclosures “is to identify those witnesses that a 

party intends to use at trial . . . enable[ing] the opposing party to plan its discovery, including 

depositions.” Vieste, LLC v. Hill Redwood Dev., No. C-09-04024 JSW DMR, 2011 WL 

2181200, at *3 (N.D. Cal. June 3, 2011). There is no authority for the position that exhaustive 

document discovery from a non-party is a prerequisite to holding a deposition. Qualcomm 

cannot point to a single case in which a court has stricken a witness from a party’s initial 

disclosures due to the allegedly inadequate scope of a non-party’s document search. The cases 

4

 The suggestion that Huawei and the FTC are improperly “coordinating their efforts” or that Huawei’s counsel only 

wrote the letter summarizing the negotiations “at the FTC’s request” is a red herring. Because the FTC did not 

participate in the negotiations, it was necessary to ask Huawei’s counsel for its response to Qualcomm’s allegations 

before assessing the situation and responding to Qualcomm’s motion. 

5

Should the Court determine that Qualcomm’s request has merit, the FTC requests that the Court hold an 

evidentiary hearing on these issues. 

6 Despite Qualcomm’s lack of diligence, the FTC has informed Qualcomm that it will not object to any motion in 

limine on this topic on the grounds that Qualcomm should have brought such a motion during the discovery period. 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 5 of 11
5

cited by Qualcomm involve the exclusion of evidence due to party misconduct, which is not 

alleged here. See, e.g., Unigard, 982 F.2d 363 (excluding expert testimony where key evidence 

was intentionally destroyed); Evenflow Plumbing, 2005 WL 954469, at *2 (striking trial 

testimony concerning the calculation of lost profits because plaintiff conceded it had failed to 

disclose or produce the documents that the witness relied upon, denying the defendant the chance 

to cross-examine the witness regarding the withheld documents). Qualcomm also fails to 

establish that Huawei should be held to a different discovery standard because it is an “interested 

nonparty.” All of the firms injured by Qualcomm’s conduct would benefit if that conduct were 

enjoined, but that does not transform them into parties for the purpose of discovery. 

Because Huawei witnesses are willing to appear for depositions, Qualcomm’s remaining 

authority actually undermines its arguments. See Cohen, 2012 WL 289769 at *4 (granting a 

motion to exclude from trial testimony obtained in a foreign proceeding, where the witness 

offered unresponsive answers to the questions propounded, and “no party had the opportunity to 

“develop the testimony by direct, cross, or redirect examination”); see also In re CRT, 2015 WL 

12966202, at *2 (former employee failed to appear for his deposition, leaving “no other recourse 

to discovering highly relevant information”). Indeed, the court in In re CRT acknowledged that a 

deposition would cure its concerns about the inadequacy of discovery from a foreign witness, 

and ordered that, should the witness become available for trial, the defendant must be given 

thirty days’ notice and the witness must be made available for an out-of-time deposition. Id. at 

*3. This relief was not tied to the provision of custodial documents, nor did the court there hold

that was a perquisite for a deposition. See id. No case cited by Qualcomm supports its argument

that a non-party witness should be stricken from a disclosure, and no deposition taken, if the

witness’s foreign employer declines to conduct a broad custodial search for documents.

Qualcomm cannot credibly maintain that this production is so grossly insufficient as 

to render any conceivable testimony from a Huawei witness on any topic inadmissible at trial. 

Any argument that Huawei is “cherry picking” is illogical: Qualcomm does not contend that 

Huawei selected only documents that would advance its interests or damage Qualcomm; only 

that Huawei did not conduct a search that was broad enough. Further, Qualcomm has not 

articulated why the specific categories of documents it contends it needs in order to move 

forward with the depositions are essential for Qualcomm to be able to question witnesses on 

these topics. 

C. Qualcomm’s Request is Premature

Notwitstanding the lack of a legal basis for its request, Qualcomm’s motion is premature. 

Should a Huawei witness appear on the FTC’s final trial witness list, Qualcomm may file a 

motion in limine before Judge Koh asserting that the testimony of the witness on a given subject 

is unreliable or that the admission of the testimony would be prejudicial. The trial court can then 

assess Qualcomm’s arguments in light of the totality of discovery taken, including the 

depositions of the witnesses whose testimony is at issue.7 Huawei’s witnesses are willing to

submit themselves to Qualcomm’s cross-examination, and their depositions should go forward 

before any argument about the ultimate admissibility of their testimony—or the weight to be 

afforded these witnesses— is considered by the court. 

7

 The FTC’s December 7 email, cited in footnote 2, is consistent with the position that the admissibility of a foreign 

entity’s testimony is an issue to be decided at trial. Moreover, the statement is not applicable to the situation at hand, 

where Huawei witnesses are in fact providing both documents and deposition testimony. 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 6 of 11
6

Dated: January 31, 2018 

Respectfully submitted, 

FEDERAL TRADE COMMISSION,

 /s/ Jennifer Milici 

Jennifer Milici

Wesley G. Carson

J. Alexander Ansaldo

Joseph R. Baker

Elizabeth A. Gillen

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

CRAVATH, SWAINE & MOORE LLP,

/s/ Gary A. Bornstein

Gary A. Bornstein

Yonatan Even

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Tel: (212) 474-1000

Fax: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

Richard S. Taffet 

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

MORGAN, LEWIS & BOCKIUS LLP

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 7 of 11
7

1111 Pennsylvania Ave. NW

Washington, DC 20004-2541

Tel: (202) 739-3000

Fax: (202) 739 3001 

willard.tom@morganlewis.com

Donn P. Pickett

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105-1126

Tel: (415) 442-1000

Fax: (415) 442-1001

donn.pickett@morganlewis.com

geoffrey.holtz@morganlewis.com

Attorneys for Qualcomm Incorporated

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 8 of 11
FILER’S ATTESTATION

I, Jennifer Milici, am the ECF user whose identification and password are being used to 

file this Joint Discovery Statement. In compliance with Civil Local Rule 5-1(i)(3), I hereby 

attest that the signatories on this document have concurred in this filing. 

/s/ Jennifer Milici

Jennifer Milici

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 9 of 11
EXHIBIT A 

FILED UNDER SEAL 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 10 of 11
EXHIBIT B 

FILED UNDER SEAL 

Case 5:17-cv-00220-LHK Document 529-3 Filed 02/02/18 Page 11 of 11