Qualcomm’s Opposition to 

Bain’s Motion to Quash Trial Subpoena 

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

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KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest (SBN 84065) 

rvannest@keker.com 

Eugene M. Paige (SBN 202849) 

epaige@keker.com 

Justina Sessions (SBN 270914) 

jsessions@keker.com

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

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 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS LLP 

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone: (202) 739-3000 

Facsimile: (202) 739-3001 

MORGAN, LEWIS & BOCKIUS LLP 

Geoffrey T. Holtz (SBN 191370) 

gholtz@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 OPPOSITION TO 

MOTION TO QUASH TRIAL 

SUBPOENA TO CHRISTOPHER 

JOHNSON 

Re: ECF No. 1041 

Date: TBD 

Time: 1:30pm 

Courtroom 8, 4th Floor 

Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1055 Filed 12/28/18 Page 1 of 18
Qualcomm’s Opposition to 

Bain’s Motion to Quash Trial Subpoena 

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

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TABLE OF CONTENTS 

Page(s) 

TABLE OF AUTHORITIES .......................................................................................................... ii 

PRELIMINARY STATEMENT ..................................................................................................... 1 

STATEMENT OF FACTS ............................................................................................................. 2 

I. Background. ............................................................................................................ 2 

II. Procedural History. ................................................................................................. 4 

LEGAL STANDARD ..................................................................................................................... 4 

ARGUMENT .................................................................................................................................. 5 

I. Mr. Johnson’s Anticipated Testimony is Relevant. ................................................ 6 

II. Bain Fails to Make Any Showing of Burden. ......................................................... 7 

III. Hypothetical Foundational Objections Are No Basis to Quash the 

Subpoena. ................................................................................................................ 8 

A. Mr. Johnson Has Personal Knowledge for the Testimony 

Qualcomm Intends to Elicit. ....................................................................... 8 

B. Even if Mr. Johnson Lacked Personal Knowledge, as a 30(b)(6)

Designee, He May Testify as to Bain’s Corporate Knowledge at 

Trial. .......................................................................................................... 10 

IV. Mr. Johnson’s Anticipated Testimony Is Not Unpaid Expert Testimony. ............ 11 

CONCLUSION ............................................................................................................................. 13 

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Qualcomm’s Opposition to 

Bain’s Motion to Quash Trial Subpoena 

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TABLE OF AUTHORITIES 

Cases Page(s) 

AD/SAT, Div. of Skylight, Inc. v. Assoc. Press, 

 181 F.3d 216 (2d Cir. 1999) ........................................................................................................7 

Agfa-Gevaert, A.G. v. A.B. Dick Co., 

 879 F.2d 1518 (7th Cir. 1989) .....................................................................................................9 

Ansell Inc. v. Schmid Labs., Inc., 

 757 F. Supp. 467 (D.N.J. 1991) ..................................................................................................7 

Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Ams., 

 262 F.R.D. 293 (S.D.N.Y. 2009) ..............................................................................................10 

Brazos River Auth. v. GE Ionics, Inc., 

 469 F.3d 416 (5th Cir. 2006) .....................................................................................................11 

Chartis Specialty Ins. Co. v. Scott Homes Multifamily Inc., 

 2014 WL 12729149 (D. Ariz. Oct. 14, 2014) .............................................................................5 

Dropbox, Inc. v. Thru Inc., 

 2016 WL 7116717 (N.D. Cal. Dec. 7, 2016) ............................................................................11 

FTC v. CCC Holdings, Inc., 

 605 F. Supp. 2d 26 (D.D.C. 2009) ..............................................................................................7 

FTC v. Sysco Corp., 

 113 F. Supp. 3d 1 (D.D.C. 2015) ................................................................................................7 

HTC Corp. v. Tech Props. Ltd., 

 2013 WL 12166376 (N.D. Cal. Sept. 20, 2013) .......................................................................11 

Kaneka Corp. v. SKC Kolon PI, Inc., 

 2015 WL 12696109 (C.D. Cal. Nov. 5, 2015) ..........................................................................11 

Mora v. Zeta Interactive Corp., 

 2017 WL 1187710 (E.D. Cal. Feb. 10, 2017) .............................................................................5 

Mount Hope Church v. Bash Back!, 

 705 F.3d 418 (9th Cir. 2012) .......................................................................................................5 

Navel Orange Admin. Comm. v. Exeter Orange Co., 

 722 F.2d 449 (9th Cir. 1983) .....................................................................................................10 

Perry v. Shelby Cnty. Div. of Corrections, 

 2006 WL 8434662 (W.D. Ten. Aug. 17, 2006) ..........................................................................9 

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Qualcomm’s Opposition to 

Bain’s Motion to Quash Trial Subpoena 

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Radware, Ltd. v. A10 Networks, Inc., 

 2014 WL 631537 (N.D. Cal. Feb. 18, 2014) ............................................................................13 

Red Lion Med. Safety, Inc. v. Ohmeda, Inc., 

 63 F. Supp. 2d 1218 (E.D. Cal. 1999) .........................................................................................7 

Sara Lee Corp. v. Kraft Foods Inc., 

 276 F.R.D. 500 (N.D. Ill. 2011) ................................................................................................11 

SEC v. Mozilo, 

 2010 WL 11468959 (C.D. Cal. Oct. 7, 2010) .............................................................................5 

St. Jude Med. S.C., Inc. v. Janssen-Counotte, 

 305 F.R.D. 630 (D. Ore. Mar. 23, 2015) .....................................................................................5

Trujillo v. Board of Educ. of the Albuquerque Pub. Sch., 

 2007 WL 2461617 (D.N.M. June 26, 2007) ...............................................................................9 

Ultratec, Inc. v. Sorenson Commc’ns, Inc., 

 2014 WL 4829173 (W.D. Wis. Sept. 29, 2014) ........................................................................11 

United States ex rel. Lutz v. Berkeley Heartlab, Inc., 

 2017 WL 5952689 (D.S.C. Nov. 29, 2017) ..............................................................................10 

United States v. Lindsey, 

 680 F. App’x 563 (9th Cir. 2017) .............................................................................................12 

Verinata Health, Inc. v. Sequenom, Inc., 

 2014 WL 2600367 (N.D. Cal. June 10, 2014) ..........................................................................13 

Statutes & Rules 

Fed. R. Civ. P. 30(b)(6) ........................................................................................................... passim 

Fed. R. Civ. P. 30, note (1970) .........................................................................................................8 

Fed. R. Civ. P. 45 ..................................................................................................................4, 12, 13 

Fed. R. Civ. P. 45(d)(3)(B)(ii).........................................................................................................13 

Fed. R. Evid. 602 ..............................................................................................................................9 

Fed. R. Evid. 701 note (2000) .........................................................................................................12 

Case 5:17-cv-00220-LHK Document 1055 Filed 12/28/18 Page 4 of 18
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Qualcomm’s Opposition to 

Bain’s Motion to Quash Trial Subpoena 

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

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PRELIMINARY STATEMENT 

The Motion filed by Bain & Company, Inc. and Christopher Johnson (collectively, 

“Bain”) to quash Qualcomm’s subpoena for Mr. Johnson’s trial testimony is Bain’s latest attempt 

to avoid testifying about the consulting work it performed for Intel. (See ECF No. 1041 

(“Mot.”).) Bain previously objected to Qualcomm’s 30(b)(6) deposition subpoena, raising the 

same arguments it recapitulates now. Magistrate Judge Cousins overruled Bain’s objections and 

allowed Qualcomm to depose Bain’s designee on slightly narrowed topics. Seeking to minimize 

Bain’s burden, Qualcomm offered to admit Mr. Johnson’s 30(b)(6) deposition testimony by 

designation, relieving him from testifying at trial. The FTC objected to that approach, arguing 

that Mr. Johnson works within the subpoena power of the Court and should testify live. Bain, 

however, now objects to live testimony. The FTC and Bain should not be permitted to whipsaw 

Qualcomm by this combination of objections and deprive the Court of important evidence 

regarding competition among suppliers of modem chips. 

Qualcomm is entitled to introduce Bain testimony at trial. Bain concedes that 

Mr. Johnson “has personal knowledge about the work that some Bain offices did on some Intel 

projects”. (Mot. 5 (emphasis omitted).) That allows Qualcomm to lay a foundation at trial for 

Mr. Johnson to discuss Bain’s work Bain’s suggestion that Mr. 

Johnson lacks personal knowledge because he also prepared for and participated in a 30(b)(6) 

deposition (Mot. 7) is also incorrect. That an employee prepared for corporate testimony does not 

indicate the absence of relevant personal knowledge. 

Bain’s position is the sort of gamesmanship that Rule 30(b)(6) circumscribes. Prior to 

Rule 30(b)(6), parties in litigation were frustrated in their attempts to secure relevant testimony 

from firms playing whack-a-mole: multiple corporate officers would be subpoenaed, and each 

would testify that they lacked personal knowledge of the subject of the examination, even though 

the information was known to the corporation. The 30(b)(6) mechanism streamlines this process 

by providing parties with relevant evidence free from foundational objection, while minimizing 

the burden on non-party entities to make dozens of witnesses available for examination. Mr. 

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Bain’s Motion to Quash Trial Subpoena 

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Johnson can testify as to his personal knowledge—and Bain’s knowledge—either live or by way 

of the deposition testimony he already provided. 

These concerns are particularly acute here because Mr. Johnson’s testimony is damning to 

the FTC’s case. The FTC alleges that various Qualcomm’s business practices reduced competing 

chipmakers’ revenues, which in turn hampered their ability to match Qualcomm in research and 

development (“R&D”) spending, causing them to exit the modem chip business. As explained 

below, Mr. Johnson has testified that, 

This testimony is relevant, admissible and properly given by a lay witness. Bain 

articulates no burden sufficient to exclude it. Bain’s Motion to Quash should be denied. 

STATEMENT OF FACTS 

I. Background 

Bain & Company, Inc., a management consulting firm, has advised Intel for 

approximately 11 years. (Mot. 5.) As part of its work for Intel, Bain analyzed 

 For its part, Intel has been actively involved in 

this litigation. Intel has a common interest agreement with Apple, which in turn has a common 

interest agreement with the FTC. (ECF No. 519 at 3.) Intel submitted advocacy materials to the 

FTC and an amicus curiae brief to the Court, claiming that “the evidence will show that but for 

[Qualcomm’s alleged] exclusionary conduct, Apple would have agreed to use Intel’s chipsets in 

earlier iterations of the iPhone,” and that because of Qualcomm’s challenged conduct, Intel “lost 

sales and margin.” (ECF No. 92-1 at 6.) 

Bain’s analyses for Intel tell 

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3 Qualcomm’s Opposition to 

Bain’s Motion to Quash Trial Subpoena 

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Ultimately, Mr. Johnson testified that 

 

 (Byars Decl. Exs. C 

(QX0122), D (QX0123).) Mr. Johnson testified at his deposition that Intel’s “headcount and 

R&D investment . . . . was typically at around the right level, or at a similar level to peers.” 

(Byars Decl. Ex. A, Johnson Tr. 34:9-12; 

 

Mr. Johnson testified that, 

 

Bain’s analyses 

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Bain’s Motion to Quash Trial Subpoena 

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II. Procedural History 

Bain produced documents containing the analyses described above. (Mot. Ex. 2.) 

On January 26, 2018, Qualcomm served a Rule 30(b)(6) deposition subpoena on Bain, seeking 

testimony regarding Bain’s advice to Intel concerning competition between Intel and Qualcomm 

for the sale of modem chips. (Mot. Ex. 3.) Each of Qualcomm’s deposition topics listed specific 

documents that would aid in the preparation for the deposition. (Id. at 3.) On February 23, 2018, 

Bain moved to quash the deposition subpoena, raising similar arguments to those it makes now: 

that the deposition subpoena imposed an undue burden and sought unpaid expert testimony. 

(ECF No. 588.) On February 27, 2018, Judge Cousins denied Bain’s motion to quash in relevant 

part. (ECF No. 597.) Bain designated a San Francisco-based partner, Christopher Johnson, as its 

representative in the 30(b)(6) deposition. Mr. Johnson consulted for Intel from early 2010 to mid2011, and again since mid-2014. (Byars Decl. Ex. A, Johnson Tr. 10:15-19.) Qualcomm 

deposed Mr. Johnson on March 28, 2018. 

Qualcomm designated testimony from Mr. Johnson’s deposition for use at trial. 

The FTC objected on grounds that Mr. Johnson worked within 100 miles of the courthouse and 

lacked personal knowledge of his 30(b)(6) testimony (ECF No. 946 at 25), but made no objection 

that his testimony was irrelevant. On December 10, Qualcomm informed Bain’s counsel that it 

would call Mr. Johnson at trial. (Mot. Ex. 6.) Qualcomm listed only six Bain documents as 

intended trial exhibits. (ECF No. 950-13 at 3.) Bain’s Motion to Quash followed. 

LEGAL STANDARD 

Bain bears the burden of persuasion to show why Qualcomm’s subpoena unduly 

burdens Mr. Johnson. (Mot. 4.) “To meet that burden, the moving party ‘cannot rely on a mere 

assertion that compliance would be burdensome and onerous without showing the manner and 

extent of the burden and the injurious consequences of insisting upon compliance with the 

subpoena.’” SEC v. Mozilo, 2010 WL 11468959, at *3 (C.D. Cal. Oct. 7, 2010) (citation 

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Bain’s Motion to Quash Trial Subpoena 

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omitted). While the Ninth Circuit is “sensitive to the imposition of large discovery costs on nonparties . . . [it] will not read ‘undue burden’ differently just because a non-party was subpoenaed.” 

Chartis Specialty Ins. Co. v. Scott Homes Multifamily Inc., 2014 WL 12729149, at *3 (D. Ariz. 

Oct. 14, 2014) (quoting Mount Hope Church v. Bash Back!, 705 F.3d 418, 429 (9th Cir. 2012)); 

see also St. Jude Med. S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 637 & n.3 (D. Ore. Mar. 3, 

2015). Some courts “have interpreted the undue burden prong to incorporate challenges based on 

relevancy”, Chartis, 2014 WL 12729149, at *3, but “[r]elevancy to the subject matter of the 

litigation ‘has been construed broadly to encompass any matter that bears on, or that reasonably 

could lead to other matter that could bear on, any issue that is or may be in the case’”, Mora v. 

Zeta Interactive Corp., 2017 WL 1187710, at *3 (E.D. Cal. Feb. 10, 2017) (quotation marks and 

citation omitted). 

ARGUMENT 

The motion to quash should be denied for four reasons. First, the testimony 

Qualcomm seeks from Mr. Johnson is relevant. As demonstrated above and in the attached 

Exhibits, Mr. Johnson’s testimony on 

 goes to the heart of the FTC’s claims 

that it was Qualcomm’s allegedly anticompetitive conduct that caused competitors to lag behind 

Qualcomm and exit the baseband processor business. Second, brief trial attendance for a witness 

that works within the district is not unduly burdensome.1

 Third, Bain’s contentions regarding 

Mr. Johnson’s personal knowledge are meritless. Bain does not contend that Mr. Johnson has no 

personal knowledge on the topics on which he previously testified. Bain argues instead that, even 

if Mr. Johnson has personal knowledge, “his knowledge would be inevitably commingled with 

his extensive 30(b)(6) preparation”. (Mot. 7.) But Bain provides no authority for the proposition 

that a witness lacks personal knowledge on subjects merely because the witness also prepared for 

a 30(b)(6) deposition. In any event, the Court may hear his testimony as to Bain’s corporate 

 

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 Should the FTC change its mind, and subject to this Court’s approval, Qualcomm remains 

willing to eliminate even that minimal burden by substituting deposition designations for 

Mr. Johnson’s live testimony. 

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Bain’s Motion to Quash Trial Subpoena 

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knowledge. Finally, Mr. Johnson’s testimony is not unpaid expert opinion. Judge Cousins 

rejected that argument, and Bain did not challenge the ruling. Mr. Johnson may properly offer lay 

opinions that are based on his or Bain’s knowledge. 

I. Mr. Johnson’s Anticipated Testimony is Relevant.

Mr. Johnson’s testimony is relevant to a core issue in this case, namely, whether 

Qualcomm’s conduct had any anticompetitive effects, and it will refute at least two major 

contentions by the FTC. First, the FTC claims that Qualcomm’s conduct decreased “competitors’ 

abilities and incentives to invest and innovate”. (ECF No. 966 at ¶¶ 351-52.) The FTC’s 

economic expert, Professor Carl Shapiro, asserted that Qualcomm’s alleged “excess royalty . . . 

predictably reduces the operating income that any rivals can earn from selling chipsets, which can 

be expected to reduce the investments these rivals make in modem chips.” (ECF No. 788-02, 

Shapiro Rpt. ¶ 300.) In this way, it is Qualcomm’s conduct, Professor Shapiro argues, that leads 

Qualcomm’s rivals “to offer lower quality modem chips and/or to have reduced capacity”. (Id.

¶ 301.) 

 Second, the FTC alleges that “existing 

competition exited the CDMA and premium LTE modem chip markets in part due to 

Qualcomm’s anticompetitive conduct.” (ECF No. 966 ¶ 392.) 

 

This testimony is relevant, and courts routinely consider analyses from non-party 

consultants in antitrust cases. See, e.g., FTC v. Sysco Corp., 113 F. Supp. 3d 1, 40-41 (D.D.C. 

2015) (considering a “report done by the management consulting firm, McKinsey & Co.” as 

“compelling evidence”); Ansell Inc. v. Schmid Labs., Inc., 757 F. Supp. 467, 472 (D.N.J. 1991) 

(considering “sales statistics and market share data” prepared by the non-party Nielsen Company 

for “its corporate clients” in defining “distinct market segment”). Indeed, Bain’s analyses have 

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Bain’s Motion to Quash Trial Subpoena 

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been evidence in several antitrust actions in which it was not a party. See, e.g., AD/SAT, Div. of 

Skylight, Inc. v. Assoc. Press, 181 F.3d 216, 227-28 (2d Cir. 1999); FTC v. CCC Holdings, Inc., 

605 F. Supp. 2d 26, 73-74 (D.D.C. 2009); Red Lion Med. Safety, Inc. v. Ohmeda, Inc., 63 F. 

Supp. 2d 1218, 1228 (E.D. Cal. 1999). Qualcomm seeks just this kind of evidence here. 

II. Bain Fails to Make Any Showing of Burden. 

Bain’s Motion fails to provide any reason why Mr. Johnson would be burdened 

(let alone unduly so) in coming to Court. Qualcomm does not foresee questioning Mr. Johnson at 

length to establish the points described above and has repeatedly offered to confer with 

Mr. Johnson’s counsel on a mutually convenient time for his trial testimony. (See Mot. Ex. 6 at 4 

(“Please let us know dates that Mr. Johnson is not available for trial. We are available to meet 

and confer.”); Mot. Ex. 9 at 2 (“Qualcomm is willing to meet and confer further.”).) 

The 30(b)(6) device—which Qualcomm selected to reduce the burden on Bain of 

having to make multiple fact witnesses available—is now what Bain uses to claim the subpoena is 

unduly burdensome. Rule 30(b)(6) serves twin purposes: it “curb[s] the ‘bandying’ by which 

officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of 

facts that are clearly known to persons in the organization and thereby to it”; and it also reduces 

the burden on “organizations which find that an unnecessarily large number of their officers and 

agents are being deposed by a party uncertain of who in the organization has knowledge.” Fed. 

R. Civ. P. 30, note (1970). A single 30(b)(6) deposition of three hours and subsequent trial 

testimony from the same designee is less burdensome than deposing the “four other Bain 

partners” and “hundreds of consultants in multiple offices around the world” (Mot. 2, 5) who 

Bain suggests may have relevant knowledge. Indeed, Qualcomm offered to “depos[e] 30(b)(1) 

witnesses if Bain w[ould] identify them and believes that would be less burdensome” (ECF 

No. 588 at 5), but Bain did not identify any such fact witnesses even though it clearly could 

(Mot. 5 (listing four other Bain partners with personal knowledge)). Bain’s objection and late 

disclosure of knowledgeable witnesses is the “bandying” that Rule 30(b)(6) prevents. 

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III. Hypothetical Foundational Objections Are No Basis to Quash the Subpoena. 

Bain argues that Mr. Johnson is burdened because his testimony would be based in 

part on knowledge gained from his 30(b)(6) deposition preparation and is therefore inadmissible. 

(Mot. 5-7.) That is incorrect for two reasons. First, as Bain concedes elsewhere in its Motion, 

Mr. Johnson has personal knowledge independent of his preparation. Second, even if 

Mr. Johnson lacks personal knowledge about some topics, because he previously testified as a 

30(b)(6) designee, he may properly testify as to Bain’s knowledge at trial. 

A. Mr. Johnson Has Personal Knowledge for the Testimony Qualcomm Intends 

to Elicit. 

Mr. Johnson has personal knowledge on the topics described above that 

Qualcomm will question him about at trial, for at least five reasons. First, Bain concedes that Mr. 

Johnson “has personal knowledge about the work that some Bain offices did on some Intel 

projects during some time periods”. (Mot. 5.) That concession provides ample basis for 

Qualcomm to lay a foundation for Mr. Johnson’s testimony at trial. It is unnecessary for a 

corporate agent to have personal knowledge about what all offices did on all projects during all 

time periods for a trial subpoena to withstand a motion to quash. 

Second, more telling than what Bain’s Motion says is what it omits. Bain does not 

assert that Mr. Johnson lacks personal knowledge over topics such as Qualcomm’s competition 

with Intel for the sale of modem chips. Bain does not even attach an affidavit from Mr. Johnson 

describing his personal knowledge or lack thereof. This failure alone has been sufficient to deny 

a motion to quash a third party trial subpoena on grounds the witness lacks personal knowledge. 

See, e.g., Trujillo v. Board of Educ. of the Albuquerque Pub. Sch., 2007 WL 2461617, at *2 

(D.N.M. June 26, 2007) (denying motion to quash third-party trial subpoena where moving party 

did not “support[] its motion with an affidavit from” the witness); Perry v. Shelby Cnty. Div. of 

Corrections, 2006 WL 8434662, at *2 (W.D. Ten. Aug. 17, 2006) (similar). 

Third, Bain cites no authority supporting the notion that witnesses cannot testify as 

to matters within their personal knowledge if they have also testified as a 30(b)(6) witness 

because corporate knowledge and personal knowledge would be “commingled.” (Mot. 7.) 

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Witnesses designated to give corporate testimony frequently appear in both their corporate and 

individual capacities and then ultimately testify at trial. Bain’s position would preclude any 

30(b)(6) testimony from coming in at trial, while also preventing any witness deposed as a 

30(b)(6) designee from testifying in his or her personal capacity. The result would be that parties 

seeking discovery would never be able to use a 30(b)(6) deposition as anything other than a 

method for identifying other fact witnesses, all of whom could disclaim personal knowledge—

precisely the fruitless search for admissible testimony that 30(b)(6) was meant to remedy. 

Fourth, Bain’s examples of topics on which Mr. Johnson lacks personal

knowledge or would offer “quadruple hearsay” (Mot. 7) are all inapposite because they conflate 

knowledge learned from others with repeating out-of-court statements others have made. 

“Knowledge acquired through others may still be personal knowledge within the meaning of Fed. 

R. Evid. 602, rather than hearsay, which is the repetition of a statement made by someone 

else. . . . Such a statement is different from a statement of personal knowledge merely based, as 

most knowledge is based, on information obtained from other people.” Agfa-Gevaert, A.G. v. 

A.B. Dick Co., 879 F.2d 1518, 1523 (7th Cir. 1989) (Posner, J.). For example, “the head of an 

administrative agency need not have first-hand knowledge of all the facts that inform an agency’s 

understanding in order to testify”; it is enough that upon examination, the agency head testified 

“as to what their agents and employees had learned through investigation and had reported to 

them.” Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449, 453 (9th Cir. 1983). 

Likewise, Mr. Johnson will not repeat what a 10-K or an interviewee says; he will testify 

regarding Bain’s independent analysis, which was generated drawing on information Bain (and 

Mr. Johnson) may have learned from others. Mr. Johnson has studied the modem chip industry 

for more than half of his 8-year tenure at Bain. That is sufficient foundation to testify. 

Finally, even if the FTC were to raise and prevail on some potential foundational 

and hearsay objections Bain highlights, that is not a basis for excluding all of Mr. Johnson’s 

testimony at the outset. A subpoena may seek “potentially relevant testimony”, and relevance “is 

not the controlling factor in an undue burden analysis.” Aristocrat Leisure Ltd. v. Deutsche Bank 

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Trust Co. Ams., 262 F.R.D. 293, 300 (S.D.N.Y. 2009) (citations omitted) (denying motion to 

quash trial subpoenas). Rather, to the extent there are foundational objections to the scope of 

Mr. Johnson’s personal knowledge, those objections are best handled at trial when the testimony 

arises. See United States ex rel. Lutz v. Berkeley Heartlab, Inc., 2017 WL 5952689, at *2 (D.S.C. 

Nov. 29, 2017) (“Subpoenas may not be used to hale random persons into court without cause, 

but [the witness] is not such a person. Where that threshold condition is satisfied, issues 

regarding the relevancy of the witness’s testimony should not be litigated by non-parties before 

the parties have presented any testimony or evidence in this case.”). 

B. Even if Mr. Johnson Lacked Personal Knowledge, as a 30(b)(6) Designee, He 

May Testify as to Bain’s Corporate Knowledge at Trial. 

Even if there are any potential areas of Mr. Johnson’s testimony that fall outside 

his personal knowledge, he may still testify on topics within Bain’s corporate knowledge, as he 

did in his 30(b)(6) deposition. Bain offers out-of-circuit case law holding that “a 30(b)(6) 

designee cannot offer any testimony at trial to the extent that information was hearsay not falling 

within one the authorized exceptions.” (Mot. 5 (citation omitted).) Bain further contends that, 

accordingly, the only cases where courts allowed 30(b)(6) testimony at trial, such as Brazos River 

Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006), are those where the 30(b)(6) designee 

was that of a party-opponent, such that the testimony was non-hearsay. (Mot. 5-6 & n.2.) 

The better reasoned authority holds that 30(b)(6) testimony is admissible at trial, 

even from non-parties. As explained above, the purpose of Rule 30(b)(6) is to prevent the 

runaround from having corporate employees each disclaim personal knowledge of a subject 

known to the corporation as a whole. “When it comes to using Rule 30(b)(6) depositions at trial, 

strictly imposing the personal knowledge requirement would only recreate the problems that Rule 

30(b)(6) was created to solve.” Sara Lee Corp. v. Kraft Foods Inc., 276 F.R.D. 500, 503 (N.D. 

Ill. 2011). “For example, a party might force a corporation to ‘take a position’ on multiple issues 

through a Rule 30(b)(6) deposition, only to be left with the daunting task of identifying which 

individual employees . . . will have to be called at trial to establish the same facts.” Id. 

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To effectuate Rule 30(b)(6), courts permit trial testimony by a non-party’s 

corporate designee to the extent that the testimony is on “topics that are particularly suitable for 

Rule 30(b)(6) testimony”, such as “corporate policies and procedures, or the corporations’ 

opinions”. Id. A court in this district has reached the same outcome and denied a motion to 

quash a trial subpoena seeking 30(b)(6) testimony from a non-party, there, Texas Instruments. 

See HTC Corp. v. Tech Props. Ltd., 2013 WL 12166376, at *1-2 (N.D. Cal. Sept. 20, 2013). 

Other cases within and outside the Ninth Circuit have taken a similar course in analogous 

circumstances. See Kaneka Corp. v. SKC Kolon PI, Inc., 2015 WL 12696109, at *8-9 (C.D. Cal. 

Nov. 5, 2015) (denying motion to exclude third-party 30(b)(6) deposition testimony from trial);

Ultratec, Inc. v. Sorenson Commc’ns, Inc., 2014 WL 4829173, at *5-6 (W.D. Wis. Sept. 29, 

2014) (denying motion to exclude third-party 30(b)(6) declaration by Intel witness from trial); cf. 

Dropbox, Inc. v. Thru Inc., 2016 WL 7116717, at *6 (N.D. Cal. Dec. 7, 2016) (rejecting argument 

that third-party 30(b)(6) deposition testimony was hearsay on motion for summary judgment).2

 

The same result should follow here. Mr. Johnson, even if he lacks personal 

knowledge on certain subjects Qualcomm has identified above, nevertheless can testify as to 

Bain’s knowledge. Testimony as to Bain’s practices in formulating its advisory presentations and 

on Bain’s conclusions on 

is “particularly suitable” for 30(b)(6) testimony and should be permitted. 

IV. Mr. Johnson’s Anticipated Testimony Is Not Unpaid Expert Testimony. 

Bain’s argument that it should be entitled to quash Qualcomm’s subpoena under Rule 45 

because the 30(b)(6) topics seek expert opinions (Mot. 7-9) is incorrect for at least five reasons. 

First, Judge Cousins implicitly rejected this argument. Bain objected to Qualcomm’s 30(b)(6) 

deposition subpoena, arguing that it was unduly burdensome and sought unpaid expert testimony. 

(ECF No. 588 at 2-3; see generally Byars Decl. Ex. F.) Judge Cousins nevertheless ordered the 

 

2

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motion, as cases permitting Rule 30(b)(6) testimony by parties are inapposite [because] they are 

governed by . . . the party-opponent hearsay rule.” (Mot. 6 n.2.) All of the cases Qualcomm cites 

in support of its position that 30(b)(6) testimony is admissible at trial concern third parties. 

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deposition to proceed on two of Qualcomm’s deposition topics. (ECF No. 597.) Bain did not 

object to Judge Cousins’ ruling. It cannot now press an argument it waived. 

Second, much of the testimony Qualcomm seeks is factual, not opinion testimony. 

The work Bain performed for Intel was based on facts that Bain developed. (See, e.g., Byars 

Decl. Ex. A, Johnson Tr. 26:14-16 (“A lot of this is positioned as facts and overviews rather than 

advice or recommendations.”); id. 77:15-18 (“So this particular document looks like it was a factfinding mission rather than recommendations.”).) Qualcomm should be able to elicit the facts 

that Mr. Johnson and Bain observed in the course of their work for Intel. 

Third, even if Mr. Johnson testifies about opinions, they would be lay opinions, 

not expert opinions. Where the opinion is based on “the particularized knowledge that the 

witness has by virtue of his or her position in the business”, the opinion is admissible lay opinion. 

Fed. R. Evid. 701 note (2000). Bain reviewed 

; it did not base its opinions on specialized antitrust or 

electrical engineering knowledge. Mr. Johnson became familiar with these topics during his long 

tenure at Bain working on the Intel account, and he can also testify regarding Bain’s corporate 

knowledge. Indeed, Bain’s counsel lodged only one objection to potential expert testimony at the 

deposition, and in doing so confirmed that testimony regarding Bain’s work for Intel is proper lay 

opinion testimony: “I object to the question to the extent it calls for an expert opinion beyond 

particular analysis done for Intel in the course of Bain’s work for Intel.” (Byars Decl. Ex. A, 

Johnson Tr. 89:3-6 (emphasis added).) 

Fourth, even if Qualcomm sought expert opinions from Mr. Johnson, they would 

be admissible. The Rule 45 power to quash a subpoena compelling unpaid disclosure of an 

unretained expert’s opinion applies only where the opinion “does not describe specific 

occurrences in dispute”. Fed. R. Civ. P. 45(d)(3)(B)(ii). The notes to Rule 45 explain that the 

Court should consider “the difference between testifying to a previously formed or expressed 

opinion and forming a new one”. Id. note (1991) (quotation omitted). This factor distinguishes 

Verinata Health, Inc. v. Sequenom, Inc. (Mot. 9), which involved hypothetical questions 

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regarding matters for which the subpoenaed party had never prepared any analysis. 2014 WL 

2600367 at *3. (N.D. Cal. June 10, 2014). Here, by contrast, Qualcomm seeks testimony only 

about analyses that Bain has already prepared in its regular course of business, and on which Mr. 

Johnson has already testified. 

Last, Bain’s argument creates an exception that swallows the Rule. As one court 

has put it, if Bain’s argument were “correct, a consultant . . . could not be deposed, and his 

statements . . . effectively would be insulated from the scrutiny of discovery”. Radware, Ltd. v. 

A10 Networks, Inc., 2014 WL 631537, at *3 (N.D. Cal. Feb. 18, 2014). That is not the law. 

CONCLUSION 

For the foregoing reasons, Bain’s Motion to Quash should be denied. 

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Dated: December 28, 2018 Respectfully submitted, 

 

CRAVATH, SWAINE & MOORE LLP, 

/s/______ _Gary A. Bornstein____________ 

Gary A. Bornstein 

Yonatan Even 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019-7475 

Tel: (212) 474-1000 

Fax: (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 94111-1809 

Tel: (415) 676-2289 

Fax: (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 10178-0060 

Tel: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

Willard K. Tom 

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Ave. NW 

Washington, DC 20004-2541 

Tel: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

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 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated

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