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QUALCOMM’S HPOS AND RESPONSES FOR JANUARY 11, 2019 TRIAL DAY

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KEKER VAN NEST & PETERS LLP

Robert A. Van Nest

Eugene M. Paige

Justina K. Sessions

633 Battery Street

San Francisco, CA 94111-1809 

Telephone: (415) 676-2289 

Facsimile: (415) 397-7188 

CRAVATH, SWAINE & MOORE LLP

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com

Yonatan Even (pro hac vice) 

yeven@cravath.com

825 Eighth Avenue

New York, NY 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

MORGAN, LEWIS & BOCKIUS LLP

Richard S. Taffet (pro hac vice) 

richard.taffet@morganlewis.com

101 Park Avenue

New York, NY 10178-0060 

Telephone: (212) 309-0060 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS LLP

Geoffrey T. Holtz (SBN 191370)

Geoffrey.holtz@morganlewis.com

One Market, Spear Street Tower

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

Attorneys for Defendant

QUALCOMM INCORPORATED

Additional Counsel listed on the Signature 

Page

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION

 Plaintiff,

 v. 

QUALCOMM INCORPORATED,

a Delaware corporation,

 Defendant. 

Case No. 5:17-CV-0220-LHK-NMC 

QUALCOMM’S HIGH PRIORITY 

OBJECTIONS AND RESPONSES 

FOR JANUARY 11, 2019 TRIAL DAY

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 1 of 8
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Pursuant to the Court’s October 24 Case Management Order (ECF No. 922), Qualcomm 

respectfully submits the following high-priority objections and responses for January 11, 2019. 

Qualcomm’s HPO #1 (objection to designated deposition testimony of Richard 

Blaylock of Pillsbury Winthrop Shaw Pittman LLP for lack of foundation and personal 

knowledge: 129:20-130:13 and 228:19-229:2) 

Qualcomm objects to the FTC’s designation of certain testimony of Mr. Blaylock, which 

contains hearsay. (129:20-130:7-13, 228:19-229:2). Mr. Blaylock is outside counsel for ZTE, 

and in these excerpts, Mr. Blaylock described

. For example, Mr. Blaylock testified that ZTE 

 and that 

 (130:1-3, 7-10.) Mr. Blaylock later testified that 

 (228:25-229:2.) Each of the

statements Mr. Blaylock described was purportedly made by a ZTE representative who will not 

testify at trial. Qualcomm is unable to cross-examine these ZTE representatives as to the truth of 

their purported statements, whether they truly were or , and 

Mr. Blaylock’s recitation of what they said is hearsay. The Court previously ruled that similar 

such statements should be excluded. ECF 1121 (sustaining hearsay objection); see also

ECF 1103 at 2 (“To the extent [a witness] is relaying statements from third parties (e.g., ‘and the 

lawyers on their side fully understand this’), such statements represent a [] ground for exclusion 

under 802.”). This testimony should be excluded under FRE 802. 

Qualcomm’s HPO # 2 (objection to CX2639 as hearsay) 

The FTC seeks to admit as evidence CX2639, a written affidavit by Mr. Injung Lee of 

Samsung. (See Lee Tr. 221:1-222:5). The affidavit, dated June 11, 2015, was originally drafted 

and submitted in a regulatory proceeding before the Korea Fair Trade Commission and purports 

to describe . As an out of court statement offered 

for the truth of the matter asserted, the statement is hearsay. The FTC does not deny that this 

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 2 of 8
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statement is hearsay, but argues that the document should be admitted through the residual 

exception under FRE 807. Importantly, under the residual exception, a statement is admissible 

only if, among other things, “it is more probative on the point for which it is offered than any 

other evidence that the proponent can obtain through reasonable efforts”. FRE 807(a)(3) 

(emphasis added). The FTC has provided no reasons why the FTC could not have obtained the 

same evidence that is contained in Mr. Lee’s declaration during Mr. Lee’s 14-hour deposition. 

Accordingly, CX2639 should be excluded under FRE 802. 

Qualcomm’s HPO #3 (objection to CX2643 and the related designated deposition 

testimony of Mr. Lee (135:14-15 136:16-17, 136:19- 137:4, 137:6-8) as hearsay) 

The FTC seeks to admit CX2643, a purported summary of a December 2013 meeting 

between and Samsung, through Mr. Lee’s testimony. When asked about the 

document, Mr. Lee admitted that he (134:6-7), 

 (134:12-16) and 

(134:23-25). The statements in the document and the surrounding testimony (135:14-15 136:16-

17, 136:19- 137:4, 137:6-8) are inadmissible hearsay that do not fall into any recognized hearsay 

exception. In particular, CX2643 does not qualify as a business record under FRE 803(6) 

because 

“was made at or near the time by . . . someone with knowledge”. 

FRE 803(6)(A); United States v. Ordonez, 737 F.2d 793, 805 (9th Cir. 1983) (holding that 

evidence did not fall under the business record exception where “[n]o evidence was offered by 

any person that the records were kept by persons having personal knowledge of the facts 

recorded or that the entries were made at or near the time of the transaction”). CX2643 and the 

related testimony should be excluded under FRE 802. 

Qualcomm’s HPO #4 (objection to the designated deposition testimony of Mr. Lee 

for lack of foundation and personal knowledge and speculation: 135:23-25, 136:3-5, 166:3-

9, 166:12-167:7, 197:21-22, 197:24-198:10, 198:13-20, 198:23-199:2, 233:1-24) 

The FTC seeks to admit testimony from Mr. Lee about 

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. (135:23-25, 136:3-

5, 166:3-9, 166:12-167:7, 197:21-22, 197:24-198:10, 198:13-20, 198:23-199:2 and 233:1-24.) 

This testimony is inadmissible. Under FRE 602, witnesses must testify to matters of which they 

have personal knowledge. When a witness testifies as to matters outside his or her personal 

knowledge, it is improper speculation, and the testimony is inadmissible. Carmen v. San 

Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) (excluding testimony based on 

speculation). Mr. Lee lacks personal knowledge to testify as to Samsung’s chip procurement 

practices because Mr. Lee does not work in chip procurement or any other operational role in 

handset production; he’s a licensing negotiator. (166:3-9, 166:12-167:7.) Moreover, during his 

deposition, Mr. Lee was asked 

, but Mr. Lee testified that 

. (14:14-23.) In other 

words, this hypothetical situation never came to pass, and Mr. Lee’s testimony is speculation. 

This testimony should be excluded under FRE 602. 

Qualcomm’s Response to FTC HPO No. 1 (QX9219) 

QX9219, designated for use during the live testimony of Steve Mollenkopf, is an email in 

which John Kim and Jim Lederer, members of Qualcomm’s modem chip sales organization, 

relay to Mr. Mollenkopf what Mr. Lederer describes as a “tough message” from KK Park, 

Samsung’s Vice President of Procurement. In the “tough message”, Mr. Park asserted that he 

was “very upset about [Qualcomm’s] pricing feedback (especially on CDMA)” and therefore 

would “influence [Samsung’s] UMTS line-up in our unfavorable manner” and “do whatever he 

can” for competitor chipmaker VIA. In other words, Samsung threatened to move to a different 

supplier of WCDMA and CDMA modem chips unless Qualcomm reduced its CDMA pricing. 

The FTC’s objection that the email contains hearsay is without merit; it is evidence of 

Qualcomm’s belief that CDMA modem chip customers could leverage their purchases of 

WCDMA modem chips to obtain lower CDMA prices and is therefore admissible “state of 

mind” evidence pursuant to FRE 803(3). Indeed, this Court previously overruled a hearsay 

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 4 of 8
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objection to documents concerning VIA’s interactions with its customers (ECF No. 1121 (FTC 

HPO # 2)); the FTC had argued that they were admissible to show VIA’s “state of mind as a 

prospective supplier” under Rule 803(3) (ECF No. 1103 at 2-3). If evidence concerning VIA’s 

state of mind as a prospective supplier is admissible, then evidence concerning Qualcomm’s state 

of mind as a prospective supplier similarly should be admissible. 

Qualcomm’s Response to FTC HPO No. 2 (QX9244) 

QX9244, designated for use during the live testimony of Steve Mollenkopf, is a 2014 

email in which Matt Grob, Qualcomm’s then-Chief Technology Officer, provides an update 

concerning Qualcomm’s 5G R&D programs to Mr. Mollenkopf and other Qualcomm executives. 

The email is an admissible record of a regularly conducted activity pursuant to FRE 803(6). The 

email was written by Mr. Grob at or near the time of the R&D activities he describes, was 

generated in the course of Qualcomm’s regularly conducted R&D activities and was a part of the 

CTO’s regular practice of updating company executives about ongoing R&D efforts. 

Qualcomm’s Response to FTC HPO No. 3 (QX9097) 

QX9097, designated for use during the live testimony of Tony Blevins, Apple’s Vice 

President of Procurement, is an email in which a direct report of Mr. Blevins explains that 

. The document is 

admissible as evidence of Mr. Blevins’s state of mind, i.e., that 

. See 

FRE 803(3). 

Qualcomm’s Response to FTC HPO No. 4 (QX9071) 

QX9071, designated for use during the live testimony of Tony Blevins, is an email from 

Mr. Blevins to his boss, then-VP of Operations Jeff Williams. In the email, which concerns 

 Mr. Blevins reports that 

 Mr. Blevins and his procurement colleagues 

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 5 of 8
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, and the email and the attached presentation are 

records of that activity. Indeed, the FTC has a version of the presentation on its exhibit list 

(CX0601). The exhibit is admissible both as a business record and as evidence of Apple’s state 

of mind while evaluating alternative suppliers of modem chips. FRE 803(3), 803(6).

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 6 of 8
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Dated: January 10, 2019 Respectfully submitted,

CRAVATH, SWAINE & MOORE LLP

s/ Yonatan Even

Gary A. Bornstein

Yonatan Even

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

Robert A. Van Nest

Eugene M. Paige

Justina K. Sessions

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

Telephone: (415) 676-2289

Facsimile: (415) 397-7188

rvannest@keker.com

epaige@keker.com

jsessions@keker.com

Richard S. Taffet

MORGAN, LEWIS & BOCKIUS LLP

101 Park Avenue

New York, NY 10178

Telephone: (212) 369-6000

Facsimile: (212) 309-6001

richard.taffet@morganlewis.com

Geoffrey T. Holtz

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 7 of 8
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MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105

Telephone: (415) 442-1000

Facsimile: (415) 442-1001

donn.pickett@morganlewis.com

geoffrey.holtz@morganlewis.com

Attorneys for Qualcomm Incorporated

Case 5:17-cv-00220-LHK Document 1221 Filed 01/10/19 Page 8 of 8