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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`v.
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`FITBIT, INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-FDS
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`UNOPPOSED MOTION TO IMPOUND/SEAL EXHIBIT 3 FILED
`WITH ECF NO. 261
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`Pursuant to Local Rule 7.2 and the Order Adopting Discovery Stipulation and Modified
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`Protective Order in this case (ECF No. 59, the “Protective Order”), Plaintiff Philips North America
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`LLC (“Philips”) respectfully requests the Court to impound (seal) Exhibit 3 filed with ECF No.
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`261 (Declaration of John W. Custer in Support of Plaintiff’s Motion to Strike Portions of
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`November 16, 2021 Expert Report of Joseph A. Paradiso as to Previously Withheld Prior Art and
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`Indefiniteness Defense).
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`The Protective Order allows parties to designate discovery material that contains or
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`constitutes confidential business information as “CONFIDENTIAL.” As grounds for this Motion,
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`Philips states that Exhibit 3 contains third party confidential business information. In response to
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`a subpoena, Icon Health & Fitness (“Icon”), a third party to this matter, produced documents
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`related to the design and operation of several of their fitness products and services and marked
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`these documents as confidential under the Protective Order because Icon believed them to include
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`confidential business information. Icon likewise designated the transcript of the deposition of one
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`of their employees, Ms. Logan, as confidential under the Protective Order. Exhibit 3 is Fitbit’s
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`invalidity report that has been designated as Confidential by Fitbit under the Protective Order
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`Case 1:19-cv-11586-FDS Document 272 Filed 01/06/22 Page 2 of 3
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`because it contains discussion of the documents and transcript designated as confidential under the
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`Protective Order by Icon.
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`Additionally, Philips has filed a redacted version of Exhibit 3 with redactions of only the
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`portions (only 56 pages out of 446 total pages) of Dr. Paradiso’s report that discuss the material
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`designated by Icon Health & Fitness as confidential.
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`For the foregoing reasons, Philips respectfully requests that the Court permit Philips to file
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`under seal Exhibit 3 filed in support of ECF No. 261. Philips further requests that this document
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`remain impounded until further Order by the Court, and that upon expiration of the impoundment,
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`this document be returned to Philips’s counsel.
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`Dated: January 6, 2022
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`Respectfully Submitted,
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` /s/ John W. Custer
`Lucas I. Silva (BBO 673,935)
`Ruben J. Rodrigues (BBO 676,573)
`John Custer (BBO 705,258)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199-7610
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`lsilva@foley.com
`rrodrigues@foley.com
`jcuster@foley.com
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`
`Eley O. Thompson (pro hac vice)
`FOLEY & LARDNER LLP
`321 N. Clark Street
`Suite 2800
`Chicago, IL 60654-5313
`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
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`Counsel for Plaintiff
` Philips North America LLC
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`Case 1:19-cv-11586-FDS Document 272 Filed 01/06/22 Page 3 of 3
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`LOCAL RULE 7.2 CERTIFICATION
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`I, John W. Custer, counsel for Philips North America LLC, hereby certify that counsel for
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`Philips has conferred with counsel for Fitbit, Inc. to resolve the issues presented in this motion
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`and that counsel for Fitbit indicated that Fitbit does not oppose the relief requested by this
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`motion.
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`Dated: January 6, 2022
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`/s/ John W. Custer
`John W. Custer
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing document was filed with
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`the Court through the ECF system and that a copy will be electronically served on registered
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`participants as identified on the Notice of Electronic Filing.
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`Dated: January 6, 2022
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`/s/ John W. Custer
`John W. Custer
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