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Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION, et al.,

Plaintiff,

v.

QUALCOMM INCORPORATED, et al.,

Defendant.

Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S 

MOTION TO STRIKE PARAGRAPHS 

72–86 OF AKL REBUTTAL EXPERT 

REPORT

Re: Dkt. No. 797

Before the Court is Defendant Qualcomm Incorporated’s (“Qualcomm”) motion to strike 

portions of the rebuttal expert report of Plaintiff Federal Trade Commission’s (“FTC”) expert Dr. 

Robert Akl. ECF No. 797 (“Mot.”). The FTC has filed an opposition, ECF No. 866 (“Opp.”), and 

Qualcomm has filed a reply. ECF No. 894 (“Reply”). Having considered the parties’ briefs, the 

relevant law, and the record in this case, the Court GRANTS Qualcomm’s motion to strike 

paragraphs 72–86 of Dr. Akl’s rebuttal expert report. 

I. LEGAL STANDARD 

“Rebuttal disclosures of expert testimony are ‘intended solely to contradict or rebut 

evidence on the same subject matter identified by another party’ in its expert disclosures.” In re 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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High-Tech Emp. Antitrust Litig., 2014 WL 1351040, at *3 (N.D. Cal. Apr. 4, 2014) (quoting Fed. 

R. Civ. P. 26(a)(2)(D)(ii)). A rebuttal expert report may respond to “new unforeseen facts brought 

out in the other side’s case.” Matthew Enter., Inc. v. Chrysler Grp. LLC, 2016 WL 4272430, at *3 

(N.D. Cal. Aug. 15, 2016) (citing Columbia Grain, Inc. v. Hinrichs Trading, LLC, 2015 WL 

6675538, at *2 (D. Idaho Oct. 30, 2015)). However, “[r]ebuttal testimony cannot be used to 

advance new arguments or new evidence.” Id. at *2 (internal quotation marks omitted). A party’s 

rebuttal expert report “is not the time to change methodologies to account for noted deficiencies; 

instead, it is to respond to criticisms of such methodologies.” Id. (internal quotation marks 

omitted). Of course, “offering a different, purportedly better methodology is a proper way to rebut 

the methodology of someone else.” TCL Commc’ns Tech. Holdings Ltd. v. Telefonaktenbologet 

LM Ericsson, 2016 WL 7042085, at *4 (C.D. Cal. Aug. 17, 2016). Ultimately, “[r]ebuttal 

testimony is proper as long as it addresses the same subject matter that the initial experts address.” 

Perez v. State Farm Mut. Auto Ins. Co., 2011 WL 8601203, at *8 (N.D. Cal. Dec. 7, 2011); see 

also Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) (“The function of 

rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.”) 

(internal quotation marks omitted). Courts “have permitted additional data to be used in a rebuttal 

report so long as it is of the same subject matter.” Kirola v. City & Cty. of S.F., 2010 WL 373817, 

at *2 (N.D. Cal. Jan. 29, 2010). 

“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any 

information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, 

Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The moving party bears the 

burden of showing a discovery violation has occurred. See Hernandez ex rel. Telles–Hernandez v. 

Sutter Med. Ctr. of Santa Rosa, 2008 WL 2156987, at *13 (N.D. Cal. May 20, 2008). Once that 

burden is satisfied, the burden shifts and the nonmoving party must prove that its failure to comply 

with Rule 26 was either justified or harmless. Yeti by Molly, 259 F.3d at 1107.

II. DISCUSSION

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Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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Qualcomm moves to strike Paragraphs 72-86 from the Akl Rebuttal Report under Rule 

26(a). Specifically, Qualcomm contends that Paragraphs 72–86 discuss the relative importance of 

third-party companies’ standard essential patents (“SEPs”) in technology areas not discussed in 

the Qualcomm expert report Dr. Akl purports to rebut. The FTC contends that Paragraphs 72–86 

are proper rebuttal evidence because they “contextualize” the Qualcomm expert’s analysis. 

Below, the Court first describes the progression of expert reports leading to the Akl 

Rebuttal Report, in order to provide context for the challenged Paragraphs. Then, the Court 

explains why Paragraphs 72–86 do not “contradict or rebut evidence on the same subject matter 

identified by another party,” Fed. R. Civ. P. 26(a)(2)(D)(ii), and must be stricken. 

A. Akl Opening Expert Report 

The FTC retained Dr. Akl as an expert to “assist in an evaluation of the reasonableness and 

proportionality of the royalties charged by Qualcomm for its cellular standard essential patents.” 

ECF No. 797-4 (“Akl Opening Report”), ¶ 1. Dr. Akl is “an expert in the field of 

telecommunications systems” and an Associate Professor and Associate Chair of Graduate Studies 

in the computer science and engineering department at the University of North Texas. Id. ¶¶ 2, 7. 

Dr. Akl produced his opening expert report on May 24, 2018. Id. As relevant here, the FTC 

asked Dr. Akl “to compile a ‘census,’ based upon recent data from a variety of sources, of the 

numbers and types of cellular SEPs declared as essential to various cellular standards by different 

entities.” Id. ¶ 1. Dr. Akl’s report also includes “background on cellular standards, standard 

setting organizations and mobile devices.” Id. ¶ 15. 

Dr. Akl’s report explains that the “census database is intended to be used as a reliable 

indicator of the numbers of SEPs declared essential to the relevant standards by various parties.” 

Id. ¶ 46 (emphasis added). Dr. Akl compiled his census from SEP databases compiled by various 

standard setting organizations (“SSOs”). See id. ¶¶ 47–68. Based on the census, the Akl Opening 

Report includes charts identifying, for a given cellular standard, the top ten holders of SEPs 

essential to that standard. See, e.g., id. ¶ 71 (chart with top ten holders of SEPs declared essential 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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to the UMTS standard). Dr. Akl concludes that the census “allows for the calculation of statistics 

regarding the percentage of SEPs declared by various entities with respect to certain cellular 

standards.” Id. ¶ 74. Nowhere in the report does Dr. Akl provide any qualitative analysis of the 

relative value of SEPs identified in his census. Indeed, the FTC states that Dr. Akl’s opening 

report includes only “an overview of cellular technology” and Dr. Akl’s census of “the number of 

cellular patents declared standard-essential to cellular standards by various companies.” Opp. at 2 

(emphasis added). 

B. Andrews Expert Report

Dr. Jeffrey Andrews is a professor in the electrical and computer engineering department at 

the University of Texas at Austin. ECF No. 797-5 (“Andrews Report”), ¶ 1. Qualcomm served 

Dr. Andrews’ expert report (“Andrews Report”) on June 28, 2018. Id. at Cover. Qualcomm 

retained Dr. Andrews to “opine on . . . the importance of certain technologies to mobile devices 

and the mobile ecosystem,” and the role of Qualcomm’s SEPs in those areas. Id. ¶ 2. 

Specifically, the Andrews Report discusses “the importance of the UMTS, LTE, and 5G NR 

standard-defined waveform and air interface, carrier aggregation, heterogeneous networks 

(“HetNet”), and unlicensed spectrum features, as well as on the role of certain of Qualcomm’s 

SEP’s in implementing those features.” Id. ¶ 3. Dr. Andrews opines that the patents he discusses 

“demonstrate that Qualcomm possess a wide-ranging portfolio in a broad range of subject areas” 

and that Qualcomm’s patents “provide substantial value to the consumer.” Id. ¶ 7. Dr. Andrews 

also opines that “Qualcomm’s portfolio has continued to grow and expand over time.” Id. ¶ 8. 

In his deposition, Dr. Andrews testified that he was “not offering an opinion . . . as to the 

value of Qualcomm’s patents relative to patents held by others” and “not offering an opinion as to 

a reasonable royalty for Qualcomm’s patent portfolio as a whole.” ECF No. 797-7 at 34:8–13, 

36:1–6. Dr. Andrews further testified that he was “not offering opinions on patents that aren’t in 

my report.” ECF No. 866-2, Ex. 3 at 74:21–23. 

C. Akl Rebuttal Report

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Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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Dr. Akl completed the Akl Rebuttal Report on July 26, 2018. ECF No. 797-2. The Akl 

Rebuttal Report states that it responds to the Andrews Report. Id. ¶ 1. The Akl Rebuttal Report 

opines that Dr. Andrews “understates the involvement of companies other than Qualcomm in the 

formulation of various cellular telecommunication standards” and that Dr. Andrews “has not 

identified all of the fundamental or important aspects of the standards.” Id. ¶ 4. Dr. Akl also 

opines that “[i]mplicit in [the Andrews Report] is an argument that Qualcomm’s patent portfolio is 

superior to the portfolios held by other companies.” Id. ¶ 5. Thus, the Akl Rebuttal Report 

provides examples of patents held by other companies that Dr. Akl “conclude[s] are of similar 

importance to the Qualcomm patents identified by Dr. Andrews.” Id. Dr. Akl first discusses other 

companies that contributed to the standards and technology areas addressed in the Andrews 

Report. See id. ¶ 13 (asserting that Dr. Andrews “downplay[s] the contributions of companies 

other than Qualcomm to the development of these technologies and standards”); see generally id.

¶¶ 32–71 (addressing specific third-party patents in “technology areas discussed by Dr. 

Andrews”). 

As relevant here, the Akl Rebuttal Report also discusses “certain example technology areas 

and patents that, in [Dr. Akl’s] view, are of comparable importance to those discussed by Dr. 

Andrews,” and are owned by companies other than Qualcomm. Id. ¶ 72. Those technology areas 

are Discontinuous Reception, id. ¶¶ 73–77, Semi-persistent Scheduling, id. ¶¶ 78–80, Handover, 

id. ¶¶ 81–83, and Circuit-switched Fallback, id. ¶¶ 84–86. Based on the evidence in the Akl 

Rebuttal Report, Dr. Akl opines that “patents within Qualcomm’s portfolio identified by Dr. 

Andrews as ‘important’ or ‘fundamental’ to the UMTS and LTE standards are matched by patents 

of comparable importance within the portfolios of at least these other companies.” Id. ¶ 87. 

D. Analysis

Qualcomm’s motion presents a straightforward question: whether Paragraphs 72–86 of the 

Akl Rebuttal Report address the “same subject matter” as the Andrews Report. Fed. R. Civ. P. 

26(a)(2)(D)(ii). In the Andrews Report, Dr. Andrews discusses how Qualcomm’s SEPs 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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“encompass[] fundamental and innovative aspects” of technology important to certain cellular 

standards. Andrews Report ¶ 297. Qualcomm contends that the Andrews Report “illustrate[s] the 

flaws in the FTC’s experts’ reliance on simple patent counting as a basis for valuing Qualcomm’s 

portfolio.” Reply at 1. Qualcomm does not move to strike those portions of the Akl Rebuttal 

Report addressing third-party SEPs in the technology areas that Dr. Andrews discusses. Id. at 4. 

Here, Paragraphs 72–86 of the Akl Rebuttal Report do not discuss the technology areas 

addressed in the Andrews Report or discuss Qualcomm’s SEPs. Instead, Paragraphs 72–86 

include Dr. Akl’s opinions on third-party SEPs in “other portions of the standards that are . . . of 

equal importance to those identified by Dr. Andrews.” Akl Rebuttal Report ¶ 72. Notably, 

Paragraphs 72–86 do not attempt to contradict the Andrews Report’s opinion that Qualcomm has 

important or fundamental patents in specific technology areas. Instead, the Paragraphs make a 

different point altogether: third-party companies have important patents in other technology areas. 

For that reason, Paragraphs 72–86 are not “intended solely to contradict or rebut evidence on the 

same subject matter” as the Andrews Report. Fed. R. Civ. P. 26(a)(2)(D)(ii). 

The Akl Rebuttal Report sets forth its own purpose in such terms. For example, Dr. Akl 

states that his report discusses third-party patents “in standardized technology areas not addressed

by Dr. Andrews” and responds to the argument, “[i]mplicit in Dr. Andrews’s report,” that 

Qualcomm’s patents are superior to those of third parties. Akl Rebuttal Report ¶ 5 (emphases 

added). Neither Dr. Akl in the Akl Rebuttal Report nor the FTC in its opposition brief identifies a 

section of the Andrews Report where Dr. Andrews opines that the technology areas he discusses 

are the only technology areas of importance. See id. ¶ 72 (stating only that “Dr. Andrews’s report 

discusses a number of technology areas that he says are important to cellular standards”). Nor 

does the FTC identify any authority for the proposition that a rebuttal expert report may respond to 

an implied argument. The FTC’s other arguments are also not convincing. 

First, the FTC contends that the subject matter of the Andrews Report is “cellular 

technology declared essential to a relevant standard,” and that Paragraphs 72–86 are within that 

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ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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scope. Opp. at 1. However, the Andrews Report is not so broad in scope. Dr. Andrews opines

only on “some of Qualcomm’s fundamental patents” in technology areas in which Dr. Andrews 

has a “particular focus.” Andrews Report ¶¶ 3, 8. The FTC appears to argue that because “this 

case concerns whether Qualcomm’s cellular SEP licensing practices lead to elevated royalties at 

the portfolio level,” the Akl Rebuttal Report can address any topic under that umbrella. Opp. at 7. 

However, a rebuttal expert does not receive carte blanche to address the broad subject matter of 

the case, but rather to “contradict or rebut evidence on the same subject matter” as the other 

party’s expert report. In re High-Tech., 2014 WL 1351040, at *13 (quoting Fed. R. Civ. P. 

26(a)(2)(D)(ii)); see also FTC v. Innovative Designs, Inc., 2018 WL 3611510, at *3 (W.D. Pa. 

July 27, 2018) (“[E]xpert reports that simply address the same general subject matter as a 

previously-submitted report, but do not directly contradict or rebut the actual contents of that prior 

report, do not qualify as proper rebuttal or reply reports.”). 

The FTC contends that Paragraphs 72–86 contradict Dr. Andrews’s opinion that 

“Qualcomm possesses a wide-ranging portfolio in a broad range of subject areas,” Andrews 

Report ¶ 7, and aim to “avoid the misimpression that Qualcomm was uniquely responsible for the

development of all major cellular standards.” Opp. at 8. However, the opinions expressed in 

Paragraphs 72–86 (third parties possess certain important SEPs) and in the Andrews Report 

(Qualcomm possesses important SEPs in other technology areas) do not contradict each other, as 

both opinions could simultaneously be true. 

Examples of proper rebuttal further demonstrate how Paragraphs 72–86 are outside the 

bounds of Rule 26. In In re High-Tech, this Court denied a motion to strike a rebuttal report in 

which an expert, in response to criticism, “explain[ed] in detail greater than his opening report the 

statistical significance” of a particular variable. 2014 WL 1351040, at *13. Similarly, in Matthew 

Enterprises, the district court denied a motion to strike a rebuttal report that applied a “prior 

methodology to smaller sample sizes.” 2016 WL 4272430, at *6. Finally, in Ericsson, the district 

court denied a motion to strike rebuttal material in which the original expert reached “one 

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ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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conclusion about the value of certain patents based on one methodology” and the rebuttal expert 

“arrive[d] at a different conclusion on the basis of his alternate methodology of valuing patents.” 

2016 WL 7042085, at *6. By contrast, the alleged conclusion in the Andrews Report that 

Paragraphs 72–86 seek to rebut—“the misimpression that Qualcomm was uniquely responsible for 

the development of all major cellular standards technology,” Opp. at 8—is not in fact in the 

Andrews Report. To the extent the FTC wishes to contest an expansive framing of Dr. Andrews’s 

conclusions, the FTC has developed deposition testimony that Dr. Andrews is “not offering an 

opinion . . . as to the value of Qualcomm’s patents relative to patents held by others,” “not offering 

an opinion as to a reasonable royalty for Qualcomm’s patent portfolio as a whole,” and “not 

offering opinions on patents that aren’t in [his] report.” ECF No. 797-7 at 34:8–13, 36:1–6; ECF 

No. 866-2, Ex. 3 at 74:21–23. Dr. Andrews also testified in his expert report that his opinion 

concerns only “some of Qualcomm’s fundamental patents” in technology areas in which Dr. 

Andrews has a “particular focus.” Andrews Report ¶¶ 3, 8. 

Second, the FTC contends that the Andrews Report discusses SEPs in two of the 

technology areas that Dr. Akl addresses in Paragraphs 72–86. However, the Andrews Report 

references Discontinuous Reception and Semi-Persistent Scheduling in the context of Dr. 

Andrews’s background on the “history of cellular.” Andrews Report ¶¶ 62–66. Nowhere does Dr. 

Andrews address any Qualcomm SEPs (or third-party SEPs) related to those two technologies. 

Instead, Dr. Andrews states that those two technologies help improve a different feature that 

Qualcomm introduced, not that Qualcomm created or even contributed to those two technologies. 

Id. ¶ 62. 

Under Rule 37, striking the challenged Paragraphs is required. Yeti by Molly, 259 F.3d at 

1106 (explaining that Rule 37 is a “self-executing” and “automatic” sanction). The FTC offers no 

argument that its failure to disclose Dr. Akl’s improper rebuttal testimony “is substantially 

justified or harmless.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th 

Cir. 2011). Therefore, the Court grants Qualcomm’s motion to strike Paragraphs 72–86 of the Akl 

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ORDER GRANTING QUALCOMM’S MOTION TO STRIKE PARAGRAPHS 72–86 OF AKL REBUTTAL 

EXPERT REPORT

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Rebuttal Report. At trial, Dr. Akl may not testify about the opinions therein, although he may 

testify about the opinions in the remainder of the Akl Rebuttal Report and in the Akl Opening 

Report. However, if Dr. Andrews testifies outside the stated scope of the Andrews Report, the 

Court may reconsider whether Dr. Akl’s opinions in Paragraphs 72–86 are proper rebuttal 

testimony. 

III. CONCLUSION

For the foregoing reasons, the Court GRANTS Qualcomm’s motion to strike paragraphs

72–86 of the Akl Rebuttal Report. 

IT IS SO ORDERED.

Dated: December 11, 2018

______________________________________

LUCY H. KOH

United States District Judge

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