REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 

JOINT PRETRIAL STATEMENT

Case No. 5:17-CV-00220-LHK-NMCC 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Counsel Listed on Signature Page 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

vs. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

Defendant. 

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

JOINT PRETRIAL STATEMENT 

DATE: December 13, 2018 

TIME: 1:30 p.m. 

CTRM: Courtroom 8 

JUDGE: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 1 of 42
 1 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Pursuant to the Court’s Guidelines for Final Pretrial Conferences in Bench Trials and the 

Court’s October 24, 2018 Case Management Order (ECF No. 922), the Parties submit this Joint 

Pretrial Statement. 

I. Substance of the Action 

The Parties to this antitrust action are plaintiff Federal Trade Commission (“FTC”), a 

United States government agency, and defendant Qualcomm Incorporated, a Delaware 

corporation with its principal place of business in San Diego, California. The operative pleadings 

in this case are the FTC’s Complaint (ECF No. 1) and Qualcomm’s Answer (ECF No. 145). 

FTC’s position. The FTC asserts that Qualcomm has violated Section 5(a) of the FTC 

Act, 15 U.S.C. § 45(a), which prohibits “[u]nfair methods of competition.” The FTC asserts that 

Qualcomm has held market and monopoly power in certain markets for modem chips, integrated 

circuits that enable cellular communications in smartphones and other cellular products.1

 The 

FTC further asserts that Qualcomm has maintained its market and monopoly power and harmed 

competition through a course of anticompetitive conduct. Qualcomm has (1) conditioned the sale 

of modem chips on customers’ entry into and maintenance of patent licenses that include terms to 

which customers would not agree absent Qualcomm’s chip leverage, including unreasonably high 

royalties that customers must pay on cellular products that include non-Qualcomm modem chips; 

(2) in some instances, offered customers incentive funds to accept unreasonably high royalties 

and other unfavorable license terms; (3) refused to make licenses to patents essential to 

implementing cellular standards (cellular “SEPs”) available to other modem chip suppliers, in 

breach of commitments to do so; and (4) entered exclusive-dealing arrangements with Apple. 

Qualcomm’s position. Qualcomm denies the FTC’s assertions. Among other things, 

 

1

 Throughout this statement, the FTC uses the term “modem chips” to be consistent with the 

Court’s prior decisions in this case. See, e.g., Order Denying Motion to Dismiss, ECF No. 134, at 

2 n.1; Order Granting FTC’s Motion for Partial Summary Judgment, ECF No. 931, at 1-2. 

Qualcomm does not object to the use of the term “modem chips” (for the purposes of this Joint 

Pretrial Statement) as long as it is not understood to mean something different from “baseband 

processors”, which is the term the FTC used to define the alleged antitrust markets in its 

Complaint. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 2 of 42
2 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Qualcomm asserts that the FTC’s alleged worldwide markets for CDMA and “premium LTE” 

baseband processors are not proper antitrust markets;2 that it does not have market power in either 

of these ill-defined markets; that the terms of Qualcomm’s license agreements reflect the wellestablished market value of its patent portfolio, comply with Qualcomm’s FRAND commitments, 

and do not include unreasonably high royalties; that Qualcomm has abided by and continues to 

abide by its commitments to cellular standard-development organizations; that Qualcomm’s 

conduct is lawful and supported by legitimate business and economic justifications; that none of 

the four conducts identified by the FTC has had or currently has any anticompetitive effects; that 

the FTC cannot prove a violation of the FTC Act that is ongoing or likely to recur; and that the 

injunctive relief sought by the FTC would be unsupported by the facts or any balancing of the 

equities, would be contrary to the public interest, and not properly tailored to address the harms 

alleged by the FTC, even if the FTC could prove any or all of them. 

* * * 

FTC’s position. On November 6, 2018, the Court granted the FTC’s motion for partial 

summary judgment. The Court held that the intellectual property rights policies of two U.S.-based 

standard setting organizations “require Qualcomm to license its SEPs to modem chip suppliers.” 

(ECF No. 931 at 25.) The issues decided by the Court on partial summary judgment should not 

be addressed at trial. 

Qualcomm’s position. In its Motion for Partial Summary Judgment, the FTC represented 

that it was not seeking summary judgment on “the competitive effects of Qualcomm’s [alleged] 

refusal to license its competitors” because those “effects must be evaluated at trial”; nor did the 

FTC seek “to establish that Qualcomm has an antitrust duty to deal with its competitors”. (ECF 

 

2

 The FTC states that this action involves allegations of market or monopoly power in “certain 

markets for modem chips”. The FTC’s Complaint alleged two antitrust markets in which 

Qualcomm is alleged to have had market or monopoly power: (1) “baseband processors that 

comply with CDMA standards”, and (2) “premium baseband processors, which comply with 

advanced LTE standards”. (Compl. ¶ 31.) The FTC has refused to confirm in this Joint Pretrial 

Statement that this action concerns only the two baseband processor markets alleged in the 

Complaint. Qualcomm will object to any attempt by the FTC to expand the scope of its claims to 

allege abuse of market or monopoly power in any market that it has not alleged. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 3 of 42
3 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. 792 at 1.) The FTC conceded that both these subjects would have to be “addressed at trial”. 

(ECF No. 792 at 1.) Qualcomm would oppose any effort by the FTC to bar Qualcomm from 

presenting evidence at trial bearing on these or other issues that were not resolved by the Court’s 

Order on partial summary judgment. 

II. Relief Sought 

A. Relief Sought by the FTC 

The FTC seeks a declaration and adjudication that Qualcomm’s conduct violates 

Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). In addition, the FTC seeks permanent injunctive 

and other equitable relief that would redress and prevent recurrence of Qualcomm’s conduct, 

including an order that would at least: 

 Prohibit Qualcomm from conditioning the supply of modem chips on a customer’s 

patent-license status; 

 Require Qualcomm to negotiate or renegotiate, as applicable, license terms with 

customers in good faith under conditions free from the threat of lack of access to or 

discriminatory provision of modem chip supply or associated technical, software, or 

other support; 

 Require Qualcomm to submit, as necessary, to arbitral or judicial dispute resolution to 

determine reasonable royalties and other license terms should a customer choose to 

pursue such resolution; 

 Require Qualcomm to make exhaustive SEP licenses available to modem-chip 

suppliers on fair, reasonable, and non-discriminatory terms and to submit, as 

necessary, to arbitral or judicial dispute resolution to determine such terms; 

 Prohibit Qualcomm from discriminating or retaliating in any way against any modemchip customer or modem-chip supplier because of a dispute with Qualcomm over 

license terms or because of a customer’s license status; 

 Prohibit Qualcomm from making payments or providing other value contingent on a 

customer’s agreement to license terms; 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 4 of 42
4 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Prohibit Qualcomm from entering express or de facto exclusive-dealing agreements 

for the supply of modem chips; 

 Prohibit Qualcomm from interfering with the ability of any customer to communicate 

with a government agency about a potential law enforcement or regulatory matter; 

 Require Qualcomm to adhere to compliance and monitoring procedures and 

appropriate “fencing in” provisions, including but not limited to a potential firewall 

between patent licensing and chip personnel; and 

 Impose any other relief that the Court finds necessary and appropriate to redress and 

prevent recurrence of Qualcomm’s conduct. 

The FTC believes that that the above list is sufficiently detailed and that the Court is not 

restrained in its ability to fashion appropriate and effective relief. 

B. Qualcomm’s Position 

This Court’s Guidelines for Final Pretrial Conferences in Bench Trials require that the 

Joint Pretrial Statement contain a “detailed statement of all relief claimed”. (Paragraph B(2).) 

Qualcomm reserves the right to object to any attempt by the FTC to seek any relief not expressly 

detailed in this Joint Pretrial Statement. 

In any event, Qualcomm denies that the FTC is entitled to any relief and seeks judgment 

in its favor on all of the FTC’s claims and requests for relief. Even if the Court were to find a 

violation of the FTC Act, the injunctive relief the FTC seeks (to the extent articulated above) 

would be unsupported by any balancing of the equities, would be contrary to the public interest 

and would not be properly tailored to address the harms alleged by the FTC. 

III. Undisputed Facts 

The Parties have stipulated to the facts appearing in Exhibit A hereto. 

IV. Disputed Factual Issues 

The following factual issues (or mixed issues of fact and law) are disputed: 

 Whether the alleged worldwide market for CDMA modem chips and alleged 

worldwide market for “premium LTE” modem chips constitute properly defined 

antitrust markets; 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 5 of 42
5 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Whether Qualcomm had or has monopoly power in the alleged worldwide markets for 

CDMA modem chips and “premium LTE” modem chips. 

FTC’s Separate Statement of Disputed Factual Issues 

 Whether Qualcomm has held market power with respect to CDMA and premium LTE 

modem chips; 

 Whether Qualcomm has maintained a policy of requiring modem-chip customers to 

enter and maintain a separate patent license agreement with Qualcomm, including a 

license to Qualcomm’s cellular SEPs (“no license-no chips”); 

 Whether Qualcomm has offered incentive funds tied to customers’ acceptance of 

patent license terms; 

 Whether Qualcomm has refused to make cellular SEP licenses available to competing 

modem-chip suppliers; 

 Whether Qualcomm’s “no license-no chips” policy, its use of incentive funds, and its 

refusal to make licenses available to modem-chip suppliers have contributed to 

unreasonable royalties and other license terms, including royalties paid on the sale of 

cellular products that include non-Qualcomm modem chips; 

 Whether agreements that Qualcomm entered with Apple in 2011 and 2013 conditioned 

payments from Qualcomm to Apple on Apple’s exclusive use of Qualcomm modem 

chips in new Apple products; and 

 Whether Qualcomm’s licensing policies and practices and its agreements with Apple, 

taken as a whole, have tended to hamper competition or maintain a monopoly in 

modem-chip markets. 

Qualcomm’s Separate Statement of Disputed Factual Issues 

 Whether any monopoly power in the alleged worldwide CDMA or “premium LTE” 

baseband processor markets resulted from a superior product, business acumen or 

historic accident rather than from exclusionary conduct; 

 Whether Qualcomm’s license agreements reflect the well-established market value of 

Qualcomm’s portfolio of cellular SEPs, non-cellular SEPs and non-standard essential 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 6 of 42
6 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

patents relevant to cellular devices; 

 Whether Qualcomm’s challenged licensing practices caused Qualcomm’s licensees to 

agree to pay royalties to Qualcomm that were supra-FRAND; 

 Whether Qualcomm’s conduct with respect to licensing baseband processor suppliers 

resulted from a decision to alter a voluntary and profitable course of conduct with 

anticompetitive malice and the intent to maintain a monopoly; 

 Whether Qualcomm’s practice of licensing its SEPs only for the manufacture and sale 

of complete devices, and neither licensing nor asserting its SEPs with respect to the 

manufacture and sale of components, harms competition in any properly defined 

antitrust market for baseband processors; 

 Whether Qualcomm’s challenged licensing practices caused, are causing, and are 

likely to continue to cause, a substantial diminution in the demand for the baseband 

processors of any Qualcomm competitor; 

 Whether Qualcomm’s challenged licensing practices caused any competitor of 

Qualcomm to exit any well-defined antitrust market for baseband processors, not to 

enter any well-defined antitrust market for baseband processors or to lose (or fail to 

gain) substantial market share in any well-defined antitrust market for baseband 

processors; 

 Whether certain agreements that Qualcomm entered with Apple in 2011 and 2013 (the 

“Apple Agreements”) have prevented or currently prevent any Qualcomm competitor 

from supplying baseband processors to Apple; 

 Whether the Apple Agreements could have prevented any as-efficient baseband 

processor competitor of Qualcomm from supplying Apple; 

 Whether the Apple Agreements have prevented or currently prevent any Qualcomm 

competitor from supplying baseband processors to any other manufacturer of cellular 

devices; 

 Whether the Apple Agreements have foreclosed or currently foreclose a substantial 

share of the alleged CDMA or “premium LTE” markets for baseband processors; 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 7 of 42
7 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Whether Qualcomm’s conduct has willfully monopolized the alleged worldwide 

CDMA or “premium LTE” baseband processor markets, to the extent these markets 

are properly defined; 

 Whether Qualcomm’s conduct, and any alleged effect thereof, is likely to recur; 

 Whether Qualcomm’s conduct is pro-competitive or supported by legitimate business 

or economic justifications; and 

 Whether the FTC has proven that the injunctive relief it seeks is necessary and 

properly tailored to address proven harm, is supported by the balancing of the equities 

and is consistent with the public interest. 

V. Agreed Statement 

The Parties concur that no part of the action may be presented upon an agreed statement 

of facts. 

VI. Stipulations 

The Parties have reached agreement, or are discussing proposed agreements, regarding the 

following issues: 

A. Objections to Proposed Evidence 

The Parties have agreed to exchange objections to proposed trial exhibits on December 7, 

2018, to exchange deposition counter-designations and objections to deposition designations on 

December 10, 2018 and to exchange objections to deposition counter-designations on 

December 17, 2018. 

With respect to objections at trial, the Parties will proceed according to the schedule set 

forth in the Court’s October 24, 2018 Case Management Order (ECF No. 922 at 2): 

 By 8:00 a.m. two days before any given demonstrative, exhibit, deposition testimony, 

or live testimony (“HPO evidence”) will be introduced or used at trial, the Parties shall 

exchange such HPO evidence (which in the case of live testimony means identifying 

the live witnesses who will testify). As described below in Part B, the Parties have 

agreed to exchange final designations of deposition testimony earlier than 

contemplated by the October 24 Case Management Order and otherwise will follow 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 8 of 42
8 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the HPO evidence procedure with respect to deposition testimony. 

 By 7:00 p.m. that same day, the Parties shall meet and confer in person to discuss 

objections to the HPO evidence and to try to narrow or eliminate their disputes. 

 By 8:00 a.m. one day before the HPO evidence will be introduced or used at trial, the 

Parties shall concurrently file high priority objections and responses to the opposing 

party’s high priority objections. 

B. Disclosure of Final Deposition Designations 

The Parties have agreed that the party proposing to play videotaped deposition testimony 

must disclose its final designations no later than 8:00 a.m. four days before the testimony is 

scheduled to be presented, and that the opposing party must respond with final counterdesignations 8:00 a.m. two days before the testimony is scheduled to be presented. 

C. Sealing Motions 

The Parties will follow the procedures for filing administrative motions to file under seal 

set forth in Court’s September 5, 2018, and October 24, 2018 Orders. (See ECF Nos. 821, 922.) 

The Parties are discussing procedures to notify third parties regarding the potential use of thirdparty Protected Material at trial, and to facilitate the receipt of sealing requests from third parties. 

The Parties have agreed to provide notice to relevant third parties of any currently designated 

testimony or exhibits containing third-party Protected Material that either Party anticipates using 

at trial by 8:00 a.m. two days before the third-party Protected Material will be introduced or used 

at trial, so that they may seek an order protecting the Protected Material from public disclosure at 

trial if they opt to do so. Giving notice to any affected third parties, the Parties will file a joint 

motion for an order amending any Supplemental Protective Orders imposing different 

requirements than provided herein. 

The Parties request guidance from the Court on its preferred approach for addressing 

sealing requests at trial. 

D. Authenticity 

The Parties have agreed that, absent any specific good-faith written objection to the 

authenticity of a document, (1) documents produced by non-parties from the non-parties’ files 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 9 of 42
9 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and (2) documents produced by Qualcomm in this action or in the course of the FTC’s precomplaint investigation, FTC File No. 141-0199, shall be presumed to be authentic within the 

meaning of Federal Rule of Evidence 901. (See Stipulated Order re: Discovery of ESI, ECF 

No. 142 at 10-11.) 

E. Order of Live Testimony 

FTC’s Position

While the FTC’s preference is that a Party’s cross or redirect examination be limited to 

matters within the scope of a witness’s direct examination, the FTC is willing to agree—for the 

convenience of Qualcomm’s live witnesses—that each live fact witness may only be called once, 

on the condition that the agreement is reciprocal. That is, each Party would agree to waive 

objections that the opposing Party’s cross or redirect examination of any witness called in its case 

concerns matters outside the scope of direct examination. While, as Qualcomm notes below, the 

FTC will call witnesses it intends to elicit direct testimony from as part of its case in chief, it may 

seek to elicit rebuttal testimony from Qualcomm live witnesses who appear for the first time 

during Qualcomm’s case, and accordingly seeks a reciprocal agreement on any waiver of 

objections. 

Qualcomm’s Position

For the convenience of the fact witnesses who will testify live at trial—whether from 

Qualcomm or a third party—Qualcomm and the FTC discussed agreeing, as is typical, that all 

fact witnesses may only be called once, except for rebuttal testimony or for good cause shown. 

To facilitate this agreement, Qualcomm has asked the FTC to agree that Qualcomm’s crossexamination of a witness called in the FTC’s case may concern matters outside the scope of the 

FTC’s direct examination. The FTC, however, has taken the position that, in exchange, 

Qualcomm must waive all objections to the scope of any cross-examinations the FTC conducts 

during Qualcomm’s case (i.e., that during Qualcomm’s case, the FTC be permitted to elicit direct 

testimony on any topic from witnesses Qualcomm calls, even though the FTC already will have 

rested its case). Such a waiver is not necessary to implement the Parties’ agreement that each live 

fact witness be called only once, and the FTC’s proposed course of action would not be 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 10 of 42
10 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

warranted, fair or efficient. If the FTC intends to elicit direct testimony from any live fact 

witness, then it should call that witness during its case-in-chief, rather than waiting to elicit such 

direct testimony during Qualcomm’s case. Moreover, to the extent the FTC suggests its position 

is warranted so as to allow the FTC “to elicit rebuttal testimony from Qualcomm live witnesses 

who appear for the first time during Qualcomm’s case”, such rebuttal testimony itself should be 

limited to the scope of Qualcomm’s direct examination of its witnesses. In any event, the FTC’s 

desire to seek rebuttal testimony during Qualcomm’s case does not warrant requiring Qualcomm 

to waive all objections that the FTC’s cross-examination has exceeded the scope of direct 

testimony. 

F. Foreign Language Deposition Testimony 

Subject to the Court’s approval, foreign-language videotaped deposition testimony will be 

played with (1) questions in English; and (2) answers in the witness’s language, along with 

subtitled English translations, provided that the Parties are capable of timely preparing reasonably 

comprehensible videotapes with such subtitles.3

G. Other 

The Parties will continue to discuss potential stipulations that may promote efficiency and 

streamline the trial. 

VII. Witnesses to be Called 

The Parties exchanged preliminary witness lists on November 9, 2018, and exchanged 

lists of additional witnesses on November 21, 2018. The FTC’s witness list is attached as 

Exhibit B. Qualcomm’s witness list is attached as Exhibit C.4

 The Parties hope to reach 

agreement regarding which current and former Qualcomm employees on the Parties’ witness lists 

will be available at trial, along with when these witnesses will be available. Should any witness 

not agree to appear, each party reserves the right to seek to compel the witness’s attendance to the 

extent permitted by Rule 45. 

 

3

 Some third-party witnesses testified in Korean and Chinese. 

4

 The FTC objects to Qualcomm’s purported reservation of rights regarding its witness list to the 

extent those “rights” contravene this Court’s standing order. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 11 of 42
11 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FTC Position

In September, the FTC requested information regarding the availability at trial of 

Qualcomm witnesses, including eight former Qualcomm employees represented by Qualcomm’s 

counsel at deposition (Messrs. Steve Altman, Derek Aberle, Paul Jacobs, Jeff Altman, Eric 

Reifschneider, Marv Blecker, Irwin Jacobs, and Michael Hartogs). In response to the FTC’s 

repeated inquiries over the following weeks, Qualcomm’s counsel consistently represented that 

they were investigating each individual’s availability, and gradually provided information 

regarding five of the eight witnesses (three of whom Qualcomm has agreed to make 

available). In response to each of the FTC’s multiple inquiries Qualcomm’s counsel represented 

that they were investigating the availability of the witnesses whose availability had not yet been 

confirmed. The FTC’s November 8 initial witness list identified each of the former employees at 

issue as “Live Witnesses Represented by Qualcomm’s Counsel,” and Qualcomm’s counsel 

provided no indication that their representation of any of these individuals had ceased. On 

November 19, the FTC yet again asked Qualcomm’s counsel to “[p]lease confirm that Qualcomm 

will make available Derek Aberle, Paul Jacobs, Steve Altman, and [other witnesses represented 

by Qualcomm’s counsel] for trial testimony on [specified dates]...” Nov. 19, 2018 email from D. 

Matheson. 

The FTC repeated its request on November 23, and again Qualcomm’s counsel 

represented that they were investigating the witness’ availability. Finally, on Sunday November 

25, Qualcomm’s counsel reported for the first time that they were “not authorized to accept trial 

subpoenas” for Mr. Aberle and Mr. Steve Altman. Nov. 25 email from G. Bornstein (“on the 

[November 23] call we confirmed that we would be making Eric Reifschneider, Michael Hartogs 

and Irwin Jacobs available for trial . . . [o]n the call we stated that we were not then authorized to 

accept trial subpoenas for Derek Aberle, Steve Altman and Paul Jacobs”). In response to the 

FTC’s further inquiry on November 25, Qualcomm’s counsel announced for the first time on 

November 26 that it does not represent Mr. Aberle and Mr. Steve Altman. The FTC is now in the 

process of seeking to serve Messrs. Aberle and Altman, both residing in San Diego, with trial 

subpoenas and will take the position that they should be commanded to attend trial. See Fed. R. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 12 of 42
12 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Civ. P. 45(c). 

Qualcomm Position5

Qualcomm has stated that it will make current employees appearing on the FTC’s witness 

list available for trial, subject to reasonable arrangements regarding notice and scheduling. 

Further, Qualcomm has repeatedly informed the FTC that it will seek the cooperation of former 

employees but does not have the power to compel their attendance. Accordingly, Qualcomm 

provided definitive responses with respect to former employees once it had them, making clear 

that it continues to endeavor to obtain the agreement of other former employees. 

In the FTC’s position above, the FTC incorrectly suggests that Qualcomm somehow has 

hampered the FTC’s efforts to seek the trial attendance of former Qualcomm employees 

Derek Aberle and Steve Altman. Between September and November, Qualcomm repeatedly 

informed the FTC that, despite its ongoing efforts, Qualcomm had not been able to obtain the 

agreement of Messrs. Aberle and Altman to appear at trial. Nothing prevented the FTC from 

attempting to subpoena Messrs. Aberle and Altman during that period; Qualcomm merely 

conveyed that it continued its efforts to obtain their agreement to appear voluntarily. The FTC 

misleadingly states that “Qualcomm’s counsel announced for the first time on November 26 that 

it does not represent Mr. Aberle and Mr. Steve Altman”. However, the FTC did not ask 

Qualcomm’s counsel whether it represented Messrs. Aberle and Altman in connection with any 

potential trial testimony until the day before, November 25, 2018. (Nov. 25, 2018 email from D. 

Matheson (“Thanks for the information. Please confirm whether Cravath represents Mr. Aberle 

and Mr. Steve Altman in connection with this matter.”).)6

 Further, whether Qualcomm’s counsel 

represented those individuals had no bearing on the FTC’s ability to seek their attendance by 

 

5

 The FTC provided a completely re-written version of its position on this issue at 11:46 p.m. on 

the due date of this Joint Pretrial Statement, so Qualcomm was unable to fully respond to the 

FTC’s position in a timely fashion. 

6

 The FTC refers to its own witness list in which the FTC stated that Messrs. Aberle and Altman 

were “represented by Qualcomm’s counsel”. But that was not a representation by Qualcomm’s 

counsel, and before November 25, the FTC never inquired about representation of Messrs. Aberle 

or Altman, even though Qualcomm’s counsel informed the FTC that it had not yet been able to 

secure either former employee’s attendance at trial. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 13 of 42
13 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

subpoena. 

VIII. Exhibits, Schedules, Summaries 

The Parties exchanged preliminary lists of exhibits other than solely for impeachment or 

rebuttal on November 9, 2018, and exchanged lists of additional exhibits other than solely for 

impeachment or rebuttal on November 21, 2018. On November 27, 2018, the Parties exchanged 

lists of 450 trial exhibits other than solely for impeachment or rebuttal pursuant to the Court’s 

October 24, 2018 Case Management Order. (See ECF No. 922 at 1.) The FTC’s Exhibit List is 

attached as Exhibit D. Qualcomm’s Exhibit List is attached as Exhibit E. The Parties’ Joint 

Exhibit List is attached as Exhibit F. Pursuant to Paragraphs D(1)(a) and D(1)(b) of the Court’s 

Guidelines, which require the exchange and stamping of the Parties’ trial exhibits, the Parties 

have agreed to deem stamped and exchanged any trial exhibits that were previously produced in 

this action, and have stamped and exchanged all trial exhibits that were not previously produced 

in this action. The Parties will deliver pre-marked exhibits listed in this Joint Pretrial Statement 

to the Court on December 28, 2018, pursuant to Paragraph D(1)(c) of the Court’s Guidelines. 

IX. Disputed Legal Issues 

The following legal issues (or mixed issues of fact and law) are disputed: 

 Whether the alleged worldwide market for CDMA modem chips and alleged 

worldwide market for “premium LTE” modem chips constitute properly defined 

antitrust markets; 

 Whether Qualcomm had or has monopoly power in the alleged antitrust worldwide 

markets for CDMA and “premium LTE” modem chips; and 

 Whether the FTC is entitled to injunctive and other equitable relief. 

FTC’s Separate Statement of Disputed Legal Issues 

 Whether Qualcomm has held market power with respect to CDMA and premium LTE 

modem chips; 

 Whether Qualcomm’s conduct is anticompetitive; 

 Whether Qualcomm’s conduct constitutes monopolization in violation of Section 5(a) 

of the FTC Act (corresponding to a violation of Section 2 of the Sherman Act, 15 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 14 of 42
14 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

U.S.C. § 2); 

 Whether through license and other agreements with its customers Qualcomm has 

entered unreasonable restraints of trade in violation of Section 5(a) of the FTC Act 

(corresponding to a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1); and 

 Separate and apart from whether Qualcomm’s conduct constitutes unlawful 

monopolization or unreasonable restraint of trade, whether the conduct violates 

Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). 

Qualcomm’s Separate Statement of Disputed Legal Issues 

 Whether conduct that does not violate either Sections 1 or 2 of the Sherman Act, 15 

U.S.C. §§ 1-2, may violate Section 5(a) of the FTC Act, 15 U.S.C § 45(a); 

 Whether Qualcomm had or has any obligation to make available exhaustive cellular 

SEP licenses to manufacture or sell baseband processors pursuant to its commitments 

to ETSI or to other cellular standards-development organizations; 

 Whether Qualcomm has any antitrust duty to deal with its baseband processor 

competitors and, if so, whether Qualcomm has violated such a duty to deal; 

 Whether Qualcomm’s conduct is pro-competitive or supported by legitimate business 

or economic justifications; 

 Whether the FTC has proven a violation of the FTC Act that is ongoing or likely to 

recur; and 

 Whether, after balancing the equities and considering the public interest and other 

equitable principles, the FTC is entitled to the injunctive and other equitable relief it 

seeks pursuant to Section 13(b) of the FTC Act. 

X. Further Discovery or Motions 

The Parties currently do not contemplate further discovery or motions that must be 

resolved prior to trial apart from motions in limine filed today, November 29, 2018, and potential 

sealing motions relating to evidence and testimony to be presented at trial. 

The Parties have completed briefing on the following motions. The Court took the 

motions under submission on October 12, 2018 (ECF No. 900): 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 15 of 42
15 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 FTC’s Motion To Exclude Expert Testimony of Dr. Edward A. Snyder;7

 FTC’s Motion To Exclude Expert Testimony of Professor Aviv Nevo;

8

 Qualcomm’s Motion To Strike Portions of Rebuttal Expert Report of Dr. Robert 

Akl;9 and 

 Qualcomm’s Motion To Exclude Expert Reports of Richard L. Donaldson.10

Pursuant to the Court’s October 24, 2018 Case Management Order (ECF No. 922 at 2), 

the Parties filed simultaneous briefs regarding post-discovery evidence on October 31, 2018, 11

and simultaneous responsive briefs regarding post-discovery evidence on November 7, 2018.12 

XI. Disputed Evidentiary Issues 

Including but not limited to evidentiary issues raised in the Parties’ respective motions in 

limine, the Parties identify the following evidentiary disputes: 

A. FTC’s Statement of Disputed Evidentiary Issues 

The FTC identifies the following evidentiary issues that it intends to raise at trial: 

 Joint Exhibit List 

FTC’s Position 

The Court has limited the parties to a maximum of 550 exhibits at trial: 150 per side, plus 

250 exhibits to be introduced from an agreed-upon joint exhibit list. The parties have been unable 

to agree on the purpose of the joint exhibit list and thus have been able to agree on only 126 joint 

exhibits. 

The FTC understands that the purpose of the joint exhibit list is to identify documents to 

which neither party has a substantive objection, so that both parties have available at trial up to 

250 documents from a joint list that are (i) admissible, and (ii) anticipated to be used with trial 

witnesses. For example, some of Qualcomm’s contracts with OEMs were the subject of 

 

7

 ECF No. 788 (Motion); ECF No. 874 (Opposition); ECF No. 891 (Reply). 

8

 ECF No. 790 (Motion); ECF No. 873 (Opposition); ECF No. 889 (Reply). 

9

 ECF No. 797 (Motion); ECF No. 866 (Opposition); ECF No. 894 (Reply). 

10 ECF No. 799 (Motion); ECF No. 868 (Opposition); ECF No. 896 (Reply). 

11 ECF No. 928 (FTC’s Brief); ECF No. 929 (Qualcomm’s Brief). 

12 ECF No. 932 (FTC’s Response Brief); ECF No. 933 (Qualcomm’s Response Brief). 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 16 of 42
16 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

deposition testimony during discovery. These documents are indisputably authentic, admissible, 

and at trial will be the subject of either live testimony or designated video deposition testimony. 

Qualcomm has refused to include such documents on the joint exhibit list, despite the fact that 

Qualcomm has no substantive objection. Likewise, certain of Qualcomm’s 10-Ks may be used 

with live witnesses at trial, yet Qualcomm has refused to include its own 10-Ks on a joint exhibit 

list. Qualcomm asserts that it can oppose inclusion on a joint exhibit list any document that it 

deems unfavorable to its positions, even if the document is plainly relevant and it has no 

cognizable objection to the admission of the document. The FTC disagrees. 

On November 8, the FTC proposed to Qualcomm candidates for a joint exhibit list 

comprising a good-faith list of Qualcomm license and supply agreements with third parties that 

had been identified by the parties in initial disclosures, and other indisputably admissible 

documents (e.g., Qualcomm’s 10-Ks and commitment letters to SSOs). Qualcomm, on the other 

hand, made no proposal regarding any joint exhibits, and did not even seek to meet and confer 

regarding any joint exhibits, contrary to Qualcomm’s October 24 assertion to the Court that the 

parties were “working on a joint exhibit list.” Tr. 5:17-18. (“we’re working on that, Your Honor 

. . . we’re working on a joint exhibit list . . .”). 

Qualcomm made no counter-proposals regarding joint exhibits until November 20, when 

Qualcomm rejected essentially every document proposed by the FTC that was not a commercial 

contract, and proposed filling the joint list entirely with (i) SSO-related documents proposed by 

Qualcomm and (ii) commercial agreements (many of which are of little to no relevance to any 

issue in the case).13 In a good-faith effort at compromise, the FTC accepted dozens of 

Qualcomm’s proposed additions, including many of Qualcomm’s proposed documents related to 

standard-setting. But the FTC refused to accede to all of Qualcomm’s repetitive license 

agreements, as that would have resulted in a “joint list” consisting of essentially zero documents 

proposed by the FTC except for commercial contracts acceptable to Qualcomm. 

 

13 Qualcomm proposed adding dozens of licenses to the joint exhibit list with small companies 

that were not identified in its initial disclosures, including companies that either never made 

royalty payments or made de minimis payments. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 17 of 42
17 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The FTC proposed to Qualcomm a number of alternative approaches (including but not 

limited to offers to stipulate to the content of repetitive documents) that would limit the total 

number of exhibits introduced at trial to a maximum of 550, while ensuring that both parties are 

able to introduce unobjectionable evidence through trial witnesses. But Qualcomm has rejected 

all of the FTC’s proposals, and flatly refused to add to the “joint” list clearly admissible 

documents proposed by the FTC that are non-prejudicial and helpful to both sides. Thus, the 

“joint” exhibit list the parties are submitting to the Court contemporaneously with this filing 

consists of little more than: (i) a subset of the license agreements proposed by the FTC on 

November 8; (ii) license agreements proposed by Qualcomm on November 21; (iii) other 

Qualcomm-proposed documents such as standard-setting-related documents; and (iv) documents 

common to both parties’ individual lists. The “joint” list excludes numerous important 

commercial contracts, it excludes numerous license agreements the FTC proposed that will be the 

subject of trial testimony, and it excludes uncontroversial documents such as Qualcomm’s 10-Ks 

that could assist both parties’ trial presentations. 

The FTC requests that the Court adopt one of the FTC’s two proposals, both of which 

Qualcomm has rejected: 

(1) The FTC’s preferred approach: The current joint exhibit list identifies 126 joint 

exhibits. The FTC proposes that the parties each propose 62 additional joint exhibits that it 

believes in good faith are not subject to a serious dispute regarding admissibility (half of the 

remaining slots for each party). The FTC intends to propose adding to the joint exhibit list 

admissible documents such as: Qualcomm’s supply agreements; Qualcomm’s 10-K filings; 

Qualcomm’s license agreements; and final materials submitted to or approved by Qualcomm’s 

Board of Directors. The FTC is prepared to immediately present a list of such documents to the 

Court. 

Qualcomm has suggested that the FTC’s approach would evade the Court’s exhibit limits, 

but this is untrue: many of the documents the FTC proposes to add to the joint exhibit list 

currently appear on the FTC’s pretrial list of 450 potential exhibits, and the FTC will not replace 

documents on its pretrial list of 450. The FTC will simply have less than 450 documents on its 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 18 of 42
18 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pretrial list (from which it can introduce a maximum of 150). 

(2) In the alternative: each party identifies 125 proposed joint exhibits that it believes 

are not subject to a serious dispute regarding admissibility. The parties will eliminate duplicates 

from the list (without replacing an eliminated duplicate), and the parties promptly provide to the 

Court the resulting list of 250 or fewer joint exhibits. 

If the above proposals are not acceptable to the Court, the FTC requests that the Court 

order an alternative approach to exhibits, in recognition of the fact that the FTC bears the burden 

of proof and thus may have a greater need than Qualcomm to introduce non-repetitive 

documentary evidence. For example, the Court could order that each side may introduce no more 

than 275 exhibits. This would limit the total number of exhibits introduced at trial to 550, 

without allowing Qualcomm to restrict the FTC to only 150 documents, including documents of 

undisputed admissibility.14 

Qualcomm’s Position 

The FTC has failed to provide good-faith cooperation with Qualcomm in creating a 

mutually agreeable joint exhibit list, instead treating the joint exhibit list as an extension of its 

own list. Contrary to the purpose of a joint exhibit list, which should include documents that are 

both admissible and potentially useful to both parties—in other words, documents that are joint

exhibits—the FTC has sought to construct a joint exhibit list that includes only documents that it 

believes support the FTC’s position while denying Qualcomm the ability to add documents that 

support its defense. For example, the FTC proposed to include on the joint exhibit list over 100 

Qualcomm agreements selected by the FTC, but then refused to include on the joint exhibit list 

the vast majority of a similar number of license agreements that had been proposed by 

Qualcomm, claiming that they are “repetitive” or unimportant. But the FTC cannot reasonably 

 

14 Qualcomm asserts that the FTC included on its November 8 list “Complaints filed against 

Qualcomm,” which Qualcomm claims are inadmissible. This is misleading. The FTC proposed 

joint exhibits comprising discovery responses including Qualcomm’s Answers to Complaints, 

with Complaints themselves included only to the extent required to understand Qualcomm’s 

Answers. In any event, Qualcomm rejected the proposal and the FTC has abandoned it, thus it 

provides no excuse for Qualcomm’s refusal to agree to exhibits that indisputably are admissible, 

such as Qualcomm’s component supply agreements with OEMs. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 19 of 42
19 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

take the position that its preferred agreements are proper joint exhibits, whereas Qualcomm’s 

preferred agreements are not. The FTC’s assertion that Qualcomm seeks “to restrict the FTC to 

only 150 documents” is accordingly baseless; Qualcomm agreed to a large number of the joint 

exhibits proposed by the FTC, on the understanding that the FTC would agree to a similar number 

of documents proposed by Qualcomm. The FTC refused to reciprocate and insisted that its 

proposed exhibits should be included on the joint list while most of Qualcomm’s proposed 

exhibits would be excluded. 

Contrary to the FTC’s professed understanding that the joint exhibits are meant to include 

“documents as to which neither party has a substantive objection”, the FTC’s basis for rejecting 

Qualcomm’s proposed license agreements was not an evidentiary objection—indeed, it could not 

object consistent with its current assertion (with which Qualcomm agrees) that license agreements 

“are not subject to a serious dispute about admissibility”. Rather, the FTC stated that it believed 

that the license agreements proposed by Qualcomm “would be of no benefit to the Court”—in 

other words, it hoarded spots on the joint exhibit list for documents that it believed supported its 

theory of the case, rather than Qualcomm’s. (Nov. 24, 2018 email from D. Matheson.) The 

FTC’s suggestion in this Joint Pretrial Statement that the FTC rejected Qualcomm’s proposal 

because they were with “small companies” or “repetitive” of other license agreements only 

confirms the FTC’s goal of excluding from the joint exhibit list documents that would benefit 

Qualcomm. Qualcomm offered license agreements precisely because they demonstrate that 

multiple companies have recognized the value of Qualcomm’s portfolio, including at times when 

they clearly had limited or no demand for Qualcomm’s baseband processors. And, in return for 

the FTC’s acceptance of those license agreements, Qualcomm proposed agreeing to the vast 

majority of the agreements that had been proposed by the FTC. The FTC unreasonably refused to 

compromise in the fashion proposed by Qualcomm. 

Further illustrating how the FTC has sought to use the joint exhibit as merely an extension 

of its own exhibit list, the FTC has proposed including as “joint” exhibits documents that would 

be useless to Qualcomm, such as Complaints and Answers filed in this action, in the MDL action 

and in the coordinated Southern District of California case between Qualcomm and Apple and its 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 20 of 42
20 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

contract manufacturers. And the FTC now proposes to force the addition of other “joint” exhibits 

that could solely benefit the FTC. For example, the FTC proposes that the Court allow it to 

include as “joint” exhibits Qualcomm’s Form 10-Ks. The FTC has said it believes that 

statements in those documents are admissible against Qualcomm, but has not agreed that their 

contents would be admissible against the FTC and has not explained why it believes the 10-Ks 

and other documents like them could be “helpful to both sides”.15 

As demonstrated by the FTC’s fundamentally unfair (and incorrect) assertion of “greater 

need than Qualcomm to introduce non-repetitive documentary evidence”, the FTC merely seeks 

to evade the numerical limits the Court has placed (without objection by the FTC) on the 

introduction of exhibits from each party’s individual exhibit list. The FTC’s conduct is 

inconsistent with the purpose of the joint exhibit list; as the Court explained at the October 24, 

2018 Case Management Conference, the Court allowed the joint exhibit list to “create an 

incentive that you reach agreement [on exhibits that may be admitted] and not fight”. (Tr. 20:14-

17.) Contrary to this goal, both of the FTC’s proposed approaches would result in the joint 

exhibit list not being jointly agreed at all. Under the FTC’s proposed option (1), the Parties 

would add up to 134 new exhibits that the Parties have not agreed on, many of which have never 

appeared on either Party’s individual exhibit lists. Option (2) would apparently undo the Parties’ 

agreement on existing joint exhibits entirely and would simply add 250 exhibits to the Parties’ 

individual exhibit lists. The FTC has provided no good cause for the Court to alter its 

October 24, 2018 Order or for undoing the Parties’ agreed joint exhibit list incorporated in the 

Joint Pretrial Statement after many weeks of work, and the FTC should not be rewarded for its 

lack of cooperation in identifying joint exhibits. The joint exhibits the Parties have agreed on 

 

15 The FTC’s description of the Parties’ negotiations regarding a joint exhibit list is incorrect. 

The FTC does not mention that, prior to November 8, the Parties had discussed principles that 

would inform creation of the joint exhibit list, such as agreeing to specific categories of 

documents such as license agreements. (See Oct. 17 Joint Case Management Statement at 4 (ECF 

No. 914) (reporting that the Parties “have met and conferred and have also agreed in principle to 

identify documents for inclusion on a joint exhibit list”).) The FTC did not pursue further 

discussions on this topic, but instead unilaterally served a purported “joint” exhibit list that (as 

discussed above) contained a very large number of exhibits that Qualcomm is unable to rely upon 

and that appropriately belonged on the FTC’s individual list. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 21 of 42
21 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

should be maintained, and the FTC should not be permitted to identify any new “joint” exhibits to 

which Qualcomm has not agreed. 

 Evidence of Post-Discovery Facts 

FTC’s Position 

For the reasons set forth in briefs the FTC filed on October 31 and November 7, 2018, the 

FTC intends to object at trial to the use of cherry-picked documents from Qualcomm’s own 

confidential files that were created after the March 30, 2018 fact discovery deadline, and to the 

use of any documents not timely produced. (See ECF Nos. 928, 932 (FTC briefing on postdiscovery evidence).) 

Qualcomm’s Position 

For the reasons set forth in briefs Qualcomm filed on October 31 and November 7, 2018, 

Qualcomm opposes the FTC’s request that the Court ignore evidence of events that occurred after 

the close of fact discovery. (ECF Nos. 929, 933.) Such evidence is directly relevant to whether 

any violation of the FTC Act is “ongoing or likely to recur”, which the FTC must prove to obtain 

an injunction under Section 13(b) of the FTC Act. The FTC’s accusation that Qualcomm seeks to 

use “cherry-picked documents” is untrue: Qualcomm made clear to the FTC months ago that it 

believed evidence of current market conditions, including events occurring after the close of fact 

discovery, would be necessary in a case seeking prospective injunctive relief, but the FTC 

repeatedly rebuffed Qualcomm’s efforts to discuss a process for refreshing the discovery record. 

It would be error for the Court to consider issuing a Section 13(b) injunction while disregarding 

events that have occurred after the close of fact discovery that establish current market conditions. 

 Certain Witnesses 

FTC’s Position 

Qualcomm has identified Mr. Robert Mansfield (of Apple) and Mr. Raj Varadarajan (of 

Boston Consulting Group) on its witness list. Qualcomm did not identify Mr. Mansfield or Mr. 

Varadarajan in its initial disclosures or in a January 31, 2018 letter updating these disclosures, and 

thus Qualcomm is precluded from presenting testimony at trial from these witnesses. The Court 

has denied requests for their out-of-time depositions. See July 20, 2018 Order, ECF No. 783 at 2. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 22 of 42
22 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The FTC is submitting a motion in limine addressing this issue.16 

Qualcomm’s Position17

Contrary to the FTC’s suggestion, the Court’s July 20, 2018 Order did not address 

Rule 37(c) or determine whether Messrs. Varadarajan or Mansfield could testify at trial, but 

merely precluded the possibility of out-of-time depositions. (ECF No. 783.) Qualcomm 

identified Messrs. Varadarajan and Mansfield as likely trial witnesses on June 18, 2018, to rebut 

aspects of the FTC’s case that the FTC did not disclose until after the close of fact discovery. 

Both the FTC and Qualcomm served Rule 26 disclosures identifying witnesses from the Boston 

Consulting Group (Mr. Varadarajan’s employer) and Apple (Mr. Mansfield’s employer), and both 

sides’ disclosures identified third-party witnesses by affiliation rather than by name. No 

applicable deadline required Qualcomm to provide a final list of witnesses it may call at trial prior 

to the witness lists Qualcomm served on November 9 and November 21, 2018 pursuant to the 

Court’s Guidelines and the Parties’ agreements, and no rule requires Qualcomm to place rebuttal 

witnesses on its witness list at all. (See, e.g., Guidelines for Final Pretrial Conferences in Bench 

Trials, Paragraph B(7) (requiring identification of witnesses to be called at trial “other than solely 

for impeachment or rebuttal”).) Regardless, Qualcomm’s disclosure of Mr. Varadarajan and Mr. 

Mansfield on June 18, 2018 should be treated pursuant to Rule 37(c) as substantially justified or 

harmless—because Qualcomm identified them to respond to and rebut belated disclosures by the 

FTC. Qualcomm will oppose the FTC’s motion to exclude testimony by Messrs. Varadarajan 

and Mansfield. 

Substantial justification. Each witness is being called to address matters that the FTC did 

not disclose until after fact discovery. In fact, Mr. Varadarajan’s testimony is necessary to 

address a declaration by Mr. Varadarjan that the FTC produced to Qualcomm after the close of 

 

16 The FTC objects to Qualcomm’s inclusion in this joint pretrial statement of lengthy arguments 

about disputes that will be the subject of motions in limine, which are page limited. 

17 The FTC states that it objects to the inclusion of argument about matters that are the subject of 

motions in limine, but the FTC did not identify its motions in limine (or cut back its own 

argument) until after 7:00 p.m. on the day this Statement was due and did not make that objection 

until 11:46 p.m.—literally minutes before this Statement was due. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 23 of 42
23 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

fact discovery. The FTC seeks to use this belated declaration to permit the admission at trial of 

documents created by Mr. Varadarajan or others at the Boston Consulting Group (“BCG”). But 

the FTC improperly seeks to deny Qualcomm the opportunity to introduce testimony by 

Mr. Varadarajan concerning the very BCG documents the FTC will seek to have admitted. 

Likewise, Mr. Mansfield’s testimony is necessary to address information in interrogatory 

responses that the FTC served after the close of fact discovery, and only after an Order by Judge 

Cousins compelling it to do so. In those post-discovery interrogatory responses, the FTC for the 

first time identified specific Apple products for which it contended that Apple could have used 

baseband processors supplied by Qualcomm’s competitors. Mr. Mansfield has unique, important 

knowledge regarding Apple’s selection of baseband processors for those products, and 

Qualcomm expects his trial testimony to rebut the FTC’s contentions. The FTC seeks to deny the 

Court crucial testimony concerning whether Apple actually viewed these products as contestable 

by Qualcomm competitors, which is directly relevant to whether Qualcomm’s alleged conduct 

foreclosed competition. 

Harmlessness. Any omission also is harmless because the FTC received productions of 

documents from these two individuals’ files during fact discovery, it took testimony from 

Mr. Varadarajan during its pre-Complaint investigation, and it has access to information about 

Mr. Mansfield through its common interest agreement with Apple (including access to testimony 

Mr. Mansfield gave in the coordinated Southern District action). The FTC will not be unfairly 

prejudiced by the Court’s admission of testimony of which the FTC has had notice and that 

concerns the FTC’s own contentions. 

 Summary Exhibits 

FTC’s Position 

Qualcomm has disclosed several proposed summary exhibits. The FTC intends to object 

to summary exhibits presented by Qualcomm at trial to the extent they summarize underlying 

materials that are not admissible (such as late-produced documents) are incomplete or otherwise 

do not fairly represent underlying materials, or are otherwise inconsistent with Fed. Rule Evid. 

1006 or applicable case law. See United States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011) 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 24 of 42
24 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(citing Amarel v. Connell, 102 F.3d 1494, 1516 (9th Cir. 1996)); Davis & Cox v. Summa Corp., 

751 F.2d 1507, 1516 (9th Cir. 1985). Among other things, the “summaries” contain information 

that does not appear in the source material. 

The FTC will also object if Qualcomm seeks to introduce any summary exhibit through a 

witness who cannot be cross-examined about its preparation. See Frank Music Corp. v. Metro–

Goldwyn–Mayer, Inc., 772 F.2d 505, 515 n. 9 (9th Cir.1985) (stating that cross-examination gives 

the opponent an opportunity to reveal any inaccuracies or omissions in the summary). 

Qualcomm’s Position 

Qualcomm disclosed summary trial exhibits pursuant to Federal Rule of Evidence 1006, 

which permits the use of “a summary, chart or calculation to prove the content of voluminous 

writings . . . that cannot be conveniently examined in court”, and has identified the materials 

underlying the exhibits. The FTC has not identified any specific objections to Qualcomm’s 

summary exhibits (such as what information it believes “does not appear in the source material”), 

and its general objections set forth above are contrary to Rule 1006 and the caselaw it cites. See, 

e.g., United States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011) (requiring that (1) the materials 

underlying a Rule 1006 summary be “admissible in evidence”, and (2) the materials be “made 

available to the opposing party for inspection”); id. at 1131 n.2 (overruling objection based on 

contention that summaries did not include certain information the objector believed relevant, 

which “goes to their weight rather than their admissibility”). Contrary to the FTC’s suggestion, 

Frank Music does not require that a summary exhibit be introduced through a witness who may 

be cross-examined about its preparation, and even overruled an objection that a summary was 

created by the party and not independently “verified”, on the ground that Rule 1006 imposes no 

such requirements. See Frank Music, 772 F.2d at 515 n.9. Qualcomm has produced the 

underlying materials to the FTC, so the FTC has ample opportunity to challenge the accuracy of 

the summaries. Id. (“The requirements for Rule 1006 are met when the trial judge ascertains that 

the underlying documents are made available for inspection.”). 

The FTC also disclosed summary exhibits pursuant to Rule 1006, and Qualcomm reserves 

the right to lodge objections to the FTC’s summaries on grounds permitted by Rule 1006 and 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 25 of 42
25 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

applicable caselaw by the deadline for exchanging objections set forth above. 

 Use of Videotaped Deposition Testimony at Trial 

FTC’s Position 

Qualcomm has designated deposition testimony from witnesses that are within 100 miles 

from the place of trial, or are otherwise not “unavailable” within the meaning of Fed. R. Civ. P. 

32(4). Based on the information currently available to the FTC, at least two witnesses on 

Qualcomm’s witness list, Chris Johnson and Taraneh Maghame, are located within 100 miles of 

the place of trial. To the extent Qualcomm seeks to play such deposition testimony in lieu of live 

testimony from available witnesses, the FTC will object pursuant to Fed. R. Civ. P. 32. 

Qualcomm has also designated deposition testimony from witnesses who testified as 

corporate representatives under Federal Rule of Civil Procedure 30(b)(6), including Chris 

Johnson, Taraneh Maghame, Ranae McElvaine, Ilkka Rahnasto, Dirk Weiler, and Martin Zander. 

The FTC intends to object to any Rule 30(b)(6) testimony offered at trial that is not based on 

personal knowledge. See Fed. Rule Evid. 602. The fact that the FTC took discovery depositions 

pursuant to Rule 30(b)(6) does not waive Rule 602; nor was the FTC obligated to raise objections 

about Qualcomm’s improper use of Rule 30(b)(6) testimony at trial during discovery. 

Qualcomm’s Position 

The FTC did not identify which depositions it believed were subject to its Rule 32(a) 

objections until weeks after Qualcomm served designations of those depositions. With respect to 

Mr. Johnson, the deponent pursuant to Rule 30(b)(6) was his employer, Bain & Company, not 

Mr. Johnson personally. Bain is headquartered in Boston, which is not within 100 miles of the 

Court. With respect to Ms. Maghame, Qualcomm understands that the FTC has been in 

discussions with her counsel regarding waiving any objection to the use of her deposition, to 

avoid burden to her third-party employer Via Licensing. Qualcomm believes that it would be 

efficient to the Court and less burdensome to third parties for the FTC to forego any objections 

based on Rule 32(a) for these witnesses. However, Qualcomm has reserved the right to call 

Ms. Maghame or Mr. Johnson live at trial if the FTC stands on its objections and they are 

sustained by the Court, and the witnesses are included on Qualcomm’s live witness list. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 26 of 42
26 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The FTC’s objections to testimony provided by witnesses pursuant to Rule 30(b)(6) are 

misplaced because that Rule allows an organizational entity such as a corporation to testify 

through a representative concerning “information known or reasonably available to the 

organization”. The FTC has cited no law excluding such deposition testimony at trial on the 

ground that it is “not based on personal knowledge” of the corporate representative rather than of 

the organization being deposed. The FTC belatedly raised its objection based on the corporate 

representatives’ lack of personal knowledge months after discovery closed, even though the FTC 

itself took depositions pursuant to Rule 30(b)(6). To the extent that the Court is inclined to 

entertain the FTC’s objections, the Court should consider such objections in the context of 

particular testimony that is actually offered by Qualcomm at trial. 

 Testimony of Dr. Bertram Huber 

FTC’s Position 

Qualcomm has indicated that it intends to present testimony from Dr. Bertram Huber at 

trial. At deposition, Dr. Huber testified that his opinions are limited to his critique of the FTC’s 

experts’ positions “specifically vis-a-vis the ETSI IPR Policy.” Aug. 8, 2018 Deposition of Dr. 

Bertram Huber at 57:16-58:7. Dr. Huber attended ETSI meetings and should not be able to 

testify to his recollections of those meetings as a percipient witness. See Fed. R. Civ. P. 26; Fed. 

R. Evid. 702. 

Qualcomm’s Position 

Dr. Huber is an expert on the development of cellular standards, the ETSI IPR Policy and 

industry practice and understanding relating thereto. The FTC did not move to exclude any 

portion of Dr. Huber’s expert testimony by August 30, 2018, the deadline for the Parties to file 

motions to exclude expert testimony. (ECF No. 678.) Further, each party was limited to two 

motions to exclude expert testimony, and the FTC filed two such motions, neither relating to 

Dr. Huber. (See ECF Nos. 788, 790.) The FTC should not be permitted to evade the Court’s 

scheduling order and numerical limit, without leave from the Court, by raising at trial a broad 

objection to the scope of Dr. Huber’s expert testimony. In any event, the FTC’s objection is not 

well-taken. Aside from the fact that Dr. Huber’s experience is not the sole basis for his expert 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 27 of 42
27 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

testimony, Federal Rule of Evidence 702 expressly permits an expert to testify on the basis of his 

“experience” (in addition to the other bases for Dr. Huber’s testimony), and Dr. Huber is qualified 

to offer expert testimony on the topics addressed by his expert report, as he has done in several 

other cases. E.g., TCL Commc’n Tech. Holdings, Ltd. v. Telefonaktiebolaget LM Ericsson, No. 

8:14-CV-00341 JVS-DFMx (C.D. Cal.); Evolved Wireless, LLC v. Apple, Inc., No. 15-CV-542-

SLR-SRF (D. Del.); In the Matter of Certain 3G Mobile Handsets & Components Thereof, Inv. 

No. 337-TA-613 (ITC). Qualcomm reserves the right to oppose any objection to Dr. Huber’s 

testimony on these or any other grounds. 

 Declaration and Expert Report of Bénédicte Fauvarque-Cosson 

FTC’s Position 

Qualcomm’s exhibit list includes the declaration and expert report of Ms. Bénédicte 

Fauvarque-Cosson.18 The list suggests that Qualcomm will not seek to introduce the declaration 

and report through a sponsoring witness, but instead will request that these materials be 

considered under Fed. R. Civ. P. 44.1. Rule 44.1 is not a rule of evidence and cannot be used to 

establish a basis for admission of an exhibit at trial. To the extent that the Court finds it necessary 

to consider issues of foreign law, the FTC reserves its rights to present material appropriate for 

consideration on such issues, including Ms. Fauvarque-Cosson’s deposition testimony, and other 

evidence of the content of foreign law. 

Qualcomm’s Position 

The FTC has known that Qualcomm may seek to submit the expert report of 

Prof. Fauvarque-Cosson pursuant to Rule 44.1 since May 11, 2018, when Qualcomm filed a 

Notice of Intent to Raise Issues of Foreign Law that identified her expert report. (ECF No. 737.) 

Further, in opposing Qualcomm’s Motion to Take a Trial Deposition of Prof. Fauvarque-Cosson 

before she became a judge of the Conseil d’État of France, the FTC argued that Qualcomm would 

not suffer significant prejudice without her testimony because “under Rule 44.1, the Court may 

 

18 Prof. Fauvarque-Cosson was retained by Qualcomm as an expert witness and was deposed on 

August 16, 2018. The Court denied Qualcomm’s Motion to take a trial deposition of 

Prof. Fauvarque-Cosson. See September 21, 2018 Order Denying Qualcomm’s Motion for Leave 

to Take the Trial Deposition of an Imminently Unavailable Expert Witness, ECF No. 865. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 28 of 42
28 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

consider any relevant material or source in determining foreign law, whether or not it is admitted 

into evidence”. (ECF No. 863-2 at 7.) The FTC purports to reserve the right to submit other 

materials for consideration under Rule 44.1, but it still has not identified any materials or 

deposition testimony it would seek to submit. Qualcomm reserves the right to object to any 

materials that the FTC has not timely disclosed. 

 Documents Subject to a Request for Judicial Notice 

FTC’s Position 

Qualcomm’s exhibit list includes documents containing the hearsay statements of third 

parties, including responses to Korea Fair Trade Commission questionnaires submitted by third 

parties. On its exhibit list, Qualcomm suggests that it will not seek to introduce these documents 

through a sponsoring witness, but instead will request pursuant to Fed. R. Evid. 201 that the Court 

take judicial notice of their contents. Qualcomm has not identified the specific facts that it will 

ask the Court to judicially notice. The FTC will object to the admission, through judicial notice or 

otherwise, of any disputed statements made out of court by third parties for the truth of the matter 

asserted. Such statements are not appropriate for judicial notice under Fed. R. Evid. 201(b), which 

provides that a “court may judicially notice a fact that is not subject to reasonable dispute because 

it ... is generally known within the trial court’s territorial jurisdiction; or ... can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.” See also 

Court’s Order Granting in Part and Denying in Part Motion to Dismiss and/or Strike, Case No. 

17-MD-02773-LHK, ECF No. 175 at 16-17 (denying request to take judicial notice of facts in 

Apple’s Redacted First Amended Complaint in Apple Inc. v. Qualcomm Inc., S.D. Cal. Case No. 

17-CV-00108, Dkt. No. 83 where Qualcomm disputed facts contained in the complaint). The 

Court’s judicial notice of particular undisputed facts in a document does not render other facts in 

the document appropriate for judicial notice. 

Qualcomm’s Position 

The FTC’s objection to the referenced submissions to the Korea Fair Trade Commission is 

misplaced because the Court already took judicial notice of the submissions in connection with its 

decision on the FTC’s Motion for Partial Summary Judgment, without objection by the FTC. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 29 of 42
29 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(ECF No. 931 at 10.) In those submissions, Qualcomm’s baseband processor competitors 

reported having no licenses (or, in one instance, a single license) to cellular SEPs. Those 

statements are not barred by the rule against hearsay at least because they are contrary to the 

proprietary or pecuniary interests of those companies (Fed. R. Evid. 804(b)(3)(A)), many of 

which have claimed that licensing baseband processor suppliers is industry practice among 

holders of cellular SEPs or have claimed that they have been harmed by the lack of a license to 

Qualcomm’s cellular SEPs. Further, the FTC has not shown that those statements are subject to 

reasonable dispute after having full discovery of the companies that submitted those statements. 

 Testimony the FTC Asserts Is Improper Lay Opinion 

FTC’s Position 

The FTC is submitting a motion in limine seeking an order precluding any fact witness 

testimony relating to the importance or value of Qualcomm’s patent portfolio, or how 

Qualcomm’s technical contributions or innovations compare to those of other licensors, on the 

grounds that such testimony would constitute improper opinion testimony by a lay witness. See

Fed. Rule Evid. 701. 

Qualcomm’s Position 

The FTC cannot establish that any testimony to be offered by Qualcomm (1) would 

constitute “opinion testimony” or (2) would be barred by Federal Rule of Evidence 701, which 

permits opinion testimony by a lay witness. The FTC apparently seeks to prevent Qualcomm 

from introducing important testimony demonstrating the importance of its patent portfolio and its 

innovations to cellular and non-cellular technologies. Such testimony does not constitute 

improper lay testimony, and Qualcomm will oppose the FTC’s attempt to exclude it. 

 Topics the FTC Asserts Are Related to a Claim of Privilege 

FTC’s Position 

The FTC is submitting a motion in limine seeking an order excluding evidence concerning 

Qualcomm’s internal valuation of its patents on the grounds that Qualcomm withheld discovery 

on this topic on privilege grounds. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 30 of 42
30 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Qualcomm’s Position 

As Qualcomm indicated when the FTC previously challenged Qualcomm’s claim of 

privilege over the patent ratings. (ECF No. 734 at 5.) Qualcomm will offer testimony based on 

witnesses’ own experience and knowledge, not any evidence related to or informed by the patent 

ratings. Qualcomm will oppose the FTC’s motion in limine. 

B. Qualcomm’s Statement of Disputed Evidentiary Issues 

Qualcomm identifies the following evidentiary issues that it understands to be disputed by 

the FTC. 

 Exclusion of Evidence Provided by Huawei 

Qualcomm’s Position 

Qualcomm will file a motion in limine to exclude testimony and documents provided by 

Huawei Technologies, Co. and its employees. Huawei, headquartered in China, is a licensee of 

Qualcomm, a competing baseband processor supplier, and a major competitor of Qualcomm in 

the development of standardized technology for 5G. In this case, Huawei refused to produce 

documents in response to a subpoena served by Qualcomm on a U.S. subsidiary or in response to 

Letters of Request for International Judicial Assistance issued by the Court. It voluntarily 

produced only a small number of cherry-picked documents and completely excluded any relevant 

internal documents about its licensing negotiations with Qualcomm.19 At the FTC’s request, 

however, Huawei voluntarily made witnesses available for deposition testimony, which the FTC 

has designated for submission at trial. During the discovery period, Qualcomm moved to strike 

Huawei witnesses from the FTC’s Rule 26 disclosures based on its failure to provide meaningful 

discovery, and Judge Cousins denied Qualcomm’s request “without prejudice to refiling as a 

renewed motion to strike or motion in limine after discovery closes”. (ECF No. 537.) It would be 

fundamentally unfair to permit the FTC to rely on testimony from witnesses that refused to 

produce anything but cherry-picked documents and that Qualcomm therefore did not have the 

 

19 The FTC’s comparison to another third party, Nokia, is inapt, because (to Qualcomm’s 

knowledge) Nokia did not refuse to produce broad swaths of documents in response to any 

requests by the FTC. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 31 of 42
31 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

opportunity to meaningfully cross-examine.20 

FTC’s Position 

The FTC will oppose Qualcomm’s motion. Qualcomm has not identified the specific 

Huawei testimony it seeks to exclude or any specific way in which it has been prejudiced by the 

discovery voluntarily provided by Huawei in this action. Like other third parties located outside 

of the United States, Huawei voluntarily produced documents beyond those Qualcomm could 

have obtained through the Hague Convention process. See Jan. 31, 2018 Joint Discovery 

Statement, ECF No. 524 at 3.21 The fact that Huawei did not perform a document search to 

Qualcomm’s liking as a foreign third party is not a valid basis for excluding testimony from 

Huawei witnesses altogether. Moreover, Qualcomm’s claim that it did not have the “opportunity 

to meaningfully cross-examine” Huawei witnesses is unfounded. Huawei is a customer and 

licensee of Qualcomm’s, and Qualcomm is equally knowledgeable regarding its dealings with 

Huawei. 

 Exclusion of Evidence Provided by LG 

Qualcomm’s Position 

Qualcomm will file a motion in limine to exclude a document purporting to reflect the 

“voluntary” written responses of LG Electronics, Inc. LG is a licensee of Qualcomm that is 

headquartered in the Republic of Korea. LG’s responses are inadmissible hearsay, and LG, a 

Qualcomm licensee with a direct financial interest in this case, has unfairly denied Qualcomm 

any opportunity to cross-examine any LG witness regarding its “voluntary” responses or to 

defend itself against LG’s self-selected and self-serving written statements. LG’s “voluntary” 

responses should therefore be excluded pursuant to Federal Rules of Evidence 403 and 802. 

FTC’s Position 

 

20 The FTC’s assertion below that Qualcomm had enough basis to examine the witnesses because 

Huawei is a Qualcomm customer and licensee is frivolous; Qualcomm was deprived of the 

internal Huawei communications showing Huawei’s true views and positions. 

21 For example, Qualcomm has stated it will present witnesses and testimony from Nokia at trial, 

which—similar to Huawei—is beyond the subpoena power of the Court and voluntarily produced 

a limited set of documents in response to the Parties’ requests. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 32 of 42
32 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The FTC will oppose Qualcomm’s motion. Qualcomm’s claim that it has been unfairly 

denied an opportunity to examine LG witnesses is a mischaracterization of the record. Both 

Qualcomm and the FTC had an equal opportunity to submit questions to, and request documents 

from LG. LG witnesses responded to questions posed by both Parties, and produced certain 

documents requested by Qualcomm, to the extent permitted by the Korean Central Authority. 

 Exclusion of Boston Consulting Group Documents 

Qualcomm’s Position 

To the extent Qualcomm is not allowed to present testimony from Mr. Varadarajan at trial 

(an issue covered in further detail above), Qualcomm will file a motion in limine to exclude 

documents appearing on the FTC’s exhibit list that were generated by Mr. Varadarajan’s 

employer, Boston Consulting Group, as inadmissible hearsay and based on Federal Rule of Civil 

Procedure 37(c). The FTC apparently will request admission of the documents on the basis of a 

conclusory and boilerplate declaration provided by Mr. Varadarajan, who participated in 

generating some but not all of the documents. The FTC, however, did not obtain nor disclose 

Mr. Varadarajan’s declaration to Qualcomm until after the close of fact discovery and (as noted 

above) has opposed Qualcomm’s request for Mr. Varadarajan to testify at trial concerning the 

documents the FTC will seek to admit. The FTC should not be permitted to sandbag Qualcomm 

with a late declaration while denying it the opportunity to present testimony concerning the BCG 

documents. 

Indeed, the FTC has asserted that it “obtained the declaration from BCG in lieu of seeking 

the Court’s leave to conduct an out-of-time deposition”, but at no time did the FTC raise the 

possibility of seeking an out-of-time deposition of BCG with Qualcomm or with the Court. Nor 

did the FTC advise Qualcomm or the Court that it supposedly faced “significant delay on BCG’s 

part in obtaining information”, as it had claimed in prior drafts of this Joint Pretrial Statement. 

The FTC now argues below that Qualcomm “had every opportunity” to seek BCG testimony 

before the deadline; so too did the FTC have every opportunity to seek such deposition or 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 33 of 42
33 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

declaration before the deadline. The FTC simply chose to let the discovery cut-off expire.22 

After it produced the declaration, however, the FTC argued that any further deposition of BCG or 

Mr. Varadarajan would be prejudicial because the FTC “was bound by the Court’s discovery 

orders, which did not permit it to continue to take discovery after March 30 in search of 

incrementally better witnesses than those identified in its Rule 26 disclosures”. (ECF No. 780 at 

16.) The FTC should not be permitted to evade the Court’s discovery schedule to obtain 

“incrementally better” evidence, and then seek to deny Qualcomm any opportunity to rebut it. 

Further, the FTC has not shown that the BCG document are records of a regularly 

conducted activity pursuant to Federal Rules of Evidence 803(6) and 902(11) or that they are 

admissible as a statement by a Qualcomm agent within the scope of the agency relationship. To 

the extent Qualcomm is not allowed to present testimony from Mr. Varadarajan at trial, 

Qualcomm will object to the admission of the BCG documents. 

FTC’s Position 

Qualcomm’s objection to BCG documents created for Qualcomm’s own Board of 

Directors is not well-founded. Qualcomm itself has claimed privilege over material in certain 

BCG documents on the grounds that BCG was acting as its agent. The declaration to which 

Qualcomm objects is limited and straightforward, stating merely that BCG documents are 

authentic business records containing statements made by the agent of a party opponent. The 

underlying documents were timely produced, in at least one case from Qualcomm’s own files, 

and Qualcomm had every opportunity to seek BCG testimony about them before the fact 

discovery deadline. The fact that Qualcomm did not do so until after the deadline, without this 

Court’s leave, is not a basis to exclude the documents. 

 Exclusion of Testimony by Ira Blumberg, Vice President of Litigation and 

Intellectual Property at Lenovo 

Qualcomm’s Position 

Qualcomm will object to certain deposition testimony by Ira Blumberg of Lenovo that 

 

22 Nor may the FTC fairly blame BCG for any delay. The FTC has been receiving documents and 

testimony from BCG since 2016, during its pre-Complaint investigation. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 34 of 42
34 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

was designated by the FTC. In the designated testimony, Mr. Blumberg (who is a fact witness and 

not an expert witness) offered 

. The testimony should be excluded as improper 

opinion testimony; it is well-established that a fact witness (even one who is a lawyer) may not 

offer legal opinions, which “invade [] the province of the judge”. Nationwide Transp. Fin. v. 

Cass Info. Sys., Inc., 523 F.3d 1051, 1059 (9th Cir. 2008). The testimony is independently 

objectionable because the FTC has not alleged that Qualcomm violated the antitrust laws in 

 Mr. 

Blumberg’s testimony should be excluded. 

FTC’s Position 

Mr. Blumberg testified at length regarding his involvement in Lenovo’s licensing 

program, and most significantly, as the primary Lenovo executive who participated in licensing 

negotiations with Qualcomm in 2013. He offers relevant and helpful testimony based on his 

personal knowledge of the relevant events that transpired in connection with those negotiations. 

His impressions of those events and views he developed while negotiating with Qualcomm are 

not transformed into “legal opinions” merely because he is an attorney. To the extent Qualcomm 

has objections to specific testimony from Mr. Blumberg offered at trial, it should object at that 

time. 

 FTC’s Improper Designation of Investigation Materials 

Qualcomm’s Position 

The FTC has improperly designated “Qualcomm’s responses to the FTC’s Civil 

Investigative Demands served in In re Qualcomm Incorporated, FTC File No. 141-0199”. 

Initially, the FTC’s purported designation was made pursuant to Paragraph (D)(3) of the Court’s 

Guidelines, which permits the designation of “deposition testimony or other discovery to be 

offered at trial”. Qualcomm’s responses to requests made by the FTC during its investigation, 

however, do not constitute “discovery” in this action (such as interrogatory responses or 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 35 of 42
35 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

responses to requests for admission served pursuant to the Federal Rules of Civil Procedure) that 

may be designated in accordance with the Guidelines. 

After Qualcomm challenged the FTC’s improper designations, the FTC belatedly 

purported to add to its exhibit list all of Qualcomm’s responses to the FTC’s Civil Investigative 

Demands (“CID”) as a single trial exhibit. The FTC did so on November 29—the day this Joint 

Pretrial Statement was due—even though the Court’s October 24 Order required it to disclose all 

of its trial exhibits no later than November 9 or November 21. The FTC has not specified which 

materials among the hundreds of pages of responses and large volume of Qualcomm data the FTC 

intends to offer as evidence, thus circumventing the limitations imposed by the Court on the 

number of exhibits each side is permitted to present at trial. The FTC states that it “largely did 

not ask the same questions in interrogatories that it had asked in its pre-Complaint CID”, but that 

only illustrates the prejudice to Qualcomm because (unlike the FTC) Qualcomm had no 

opportunity to ask the FTC questions during the investigation (and was limited to serving 15 

interrogatories in this case). Qualcomm is prejudiced by the FTC’s belated, wholesale and 

indiscriminate designation of investigation materials, which circumvents both the Court’s 

schedule and the Court-imposed limitations on the number of allowed trial exhibits, and should 

thus not be permitted.23 

FTC’s Position 

Qualcomm’s responses to the FTC’s pre-complaint Civil Investigative Demand (“CID”) 

are its own sworn admissions. There is nothing improper about the FTC’s designation of 

Qualcomm’s CID responses, and it is unclear why Qualcomm is seeking a procedural basis for 

the exclusion of sworn statements it made to the FTC.24 Moreover, Qualcomm cannot be 

prejudiced by any alleged belated disclosure where the FTC identified Qualcomm’s CID 

 

23 The FTC refers to the fact that both Parties included compilations of materials on their exhibit 

lists. But, unlike the FTC, Qualcomm has listed compilations of materials that are clearly 

logically related and meant to be used at trial as a single exhibit (such as collections of patents 

Qualcomm’s expert has addressed in his report). 

24 It is also surprising that Qualcomm objects to the FTC’s creation of a single compilation 

exhibit containing all of Qualcomm’s CID responses, where Qualcomm itself has included 

several expansive compilation exhibits on its own list. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 36 of 42
36 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

responses on its initial proposed Joint Exhibit List on November 9, 2018. . 

 FTC’s Belated Disclosure of Additional Trial Exhibits 

Qualcomm’s Position 

Pursuant to the Court’s October 24, 2018 Order, the Parties were required to disclose all 

potential trial exhibits (up to 650 exhibits) by November 21, and then reduce their potential trial 

exhibits to 450 by November 27. On November 27 and 29, however, the FTC purported to add

trial exhibits that it had not previously disclosed. When Qualcomm asked the FTC to identify 

where on its trial exhibit lists the FTC had disclosed these documents, the FTC declined to do so. 

Qualcomm abided by the Court’s Order and is prejudiced by the FTC’s belated addition of 

previously undisclosed trial exhibits because (among other things) it did not have any opportunity 

to identify any witnesses, deposition testimony or other exhibits that may have been prompted by 

the exhibits. Qualcomm objects to the present disclosure of these proposed trial exhibits and will 

object to any use by the FTC of these belatedly disclosed trial exhibits. 

FTC’s Position 

Qualcomm has not identified any prejudice suffered by the FTC’s addition of three 

individual trial exhibits. Two of the three additions were inadvertent: one was a duplicate of a 

previously disclosed exhibit, and the second was added as a result of a typographical error. Both 

parties—including Qualcomm—have reserved their rights to make additions to the exhibit list 

where necessary, and particularly where such additions would not prejudice the opposing party. 

XII. Bifurcation, Separate Trial of Issues 

The Court’s April 19, 2017 Case Management Order, ECF No. 75 at 2, provided for a 

single bench trial. The Court stated in November 2017 that the trial will address both liability and 

remedy issues. (See Nov. 15, 2017 Hr’g Tr. at 4:21-5:1.) At the October 24, 2018 Case 

Management Conference, the Court raised the possibility of deferring a request by the FTC for a 

permanent injunction until after trial has concluded and only in the event that the Court finds a 

violation on the basis of the trial record. This issue is further addressed in briefs submitted by the 

Parties on October 31 and November 7, 2018. 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 37 of 42
37 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

XIII. Estimate of Trial Time 

Pursuant to the Court’s Case Management Orders, a bench trial will begin on Friday, 

January 4, 2019, and will continue for 10 trial days. (ECF Nos. 75 at 2; 308 at 2; 922 at 2.) Each 

side is limited to 25 hours for evidence, and to 30 minutes for opening statements. (See ECF No. 

922 at 2.) 

XIV. Other 

A. High Priority Objections 

FTC’s Position 

The Court’s October 24 Order limited each party to 10 high priority objections per day, 

addressed in no more than 6 pages. Given that the Court’s October 24 Order limits the Parties to 

250 joint exhibits total plus 150 exhibits per side at trial (or roughly 55 exhibits per day), the FTC 

has proposed further limits on the number of high priority objections that each Party may file, in 

order to streamline the trial. Specifically, the FTC has proposed a limit of 5 high priority 

objections per side per day, amounting to roughly 1 high priority objection for every 10 

documents introduced at trial. 

Qualcomm’s Position 

The Court determined the number of high-priority objections allocated to each party at the 

October 24, 2018 Case Management Conference and memorialized it in its October 24 Order. 

The FTC provides no good cause for the Court to deviate from that Order. Further, given the 

FTC’s ongoing effort to add more documents to its individual exhibit list than contemplated by 

the Court (as discussed above, in connection with the joint exhibit list) and to “designate” 

hundreds of pages of investigation responses (subject to Qualcomm’s objection, above), it would 

be unfair to reduce the number of high-priority objections Qualcomm may use to challenge 

inadmissible materials among the FTC’s purported designations. As with the numerical limit on 

exhibits, the FTC is again simply seeking to re-argue the Court’s prior order for no good reason. 

B. Order of Videotaped Deposition Testimony 

FTC’s Position 

The FTC has proposed that, subject to the Court’s approval, videotaped deposition 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 38 of 42
38 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

testimony of a witness be presented during the case of the party proposing the designations. 

Specifically, the Party that has designated videotaped deposition testimony will play its 

designations, together with any counter-designations made for the sake of completeness, during 

its case. If the other Party has designated different videotaped deposition testimony from the same 

witness other than for the sake of completeness, that party will play such testimony during its own 

case, together with any counter-designations made for the sake of completeness. In each instance, 

the designated testimony will be played chronologically. Any testimony designated by a party, 

whether for completeness or otherwise, will be counted against that party’s time at trial. 

Qualcomm’s Position 

Qualcomm believes that it may be more efficient and helpful to the Court if the Court 

heard both Parties’ designations of a deposition consecutively and on a single day, rather than 

splitting them so that separate portions of a single deposition are played in each Party’s case, on 

different days potentially weeks apart. Qualcomm, however, defers to the Court’s preferences 

with respect to this issue. Qualcomm agrees that any testimony designated by a party, whether 

for completeness or otherwise, should be counted against that party’s time at trial. 

Dated: November 29, 2018 

The foregoing admissions having been made 

by the parties, and the parties having 

specified the foregoing issues of fact and 

law remaining to be litigated, this order 

shall supplement the pleadings and govern 

the course of trial of this action, unless 

modified to prevent manifest injustice 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 39 of 42
39 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FEDERAL TRADE COMMISSION 

s/ Jennifer Milici _______ 

Jennifer Milici 

Wesley G. Carson 

J. Alexander Ansaldo 

Joseph R. Baker 

Elizabeth A. Gillen 

Daniel Matheson 

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

By: 

CRAVATH, SWAINE & MOORE LLP 

s/ Gary A. Bornstein___ 

 

Gary A. Bornstein

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Robert A. Van Nest 

Eugene M. Paige 

Justina Sessions 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

rvannest@keker.com 

epaige@keker.com 

jsessions@keker.com

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 40 of 42
40 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Defendant Qualcomm 

Incorporated

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 41 of 42
41 JOINT PRETRIAL STATEMENT

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILER’S ATTESTATION 

I, Gary A. Bornstein, am the ECF user whose identification and password are being used to file 

this Joint Status Report. 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/ Gary A. Bornstein 

Case 5:17-cv-00220-LHK Document 946 Filed 11/29/18 Page 42 of 42