Case 1:19-cv-11586-FDS Document 311 Filed 02/09/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`FITBIT LLC,
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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 DESIGNATED MATERIAL
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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 (“Protective Order”), ECF No. 59, Defendant Fitbit LLC (“Fitbit”),
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`respectfully requests the Court to impound (seal) Fitbit’s Memorandum (ECF No. 310) in Support
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`of its Motion (ECF No. 304) to Strike Portions of the Expert Report and Exclude Certain Opinions
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`and Testimony of Dr. Michael P. Akemann, as well as Exhibits 1-8 thereto. Plaintiff Philips North
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`America LLC (“Philips) does not oppose this Motion to Impound/Seal.
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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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`Fitbit states that it filed a confidential version of its Memorandum (ECF No. 310) in Support of its
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`Motion to Strike Portions of the Expert Report and Exclude Certain Opinions and Testimony of
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`Dr. Michael P. Akemann, under seal. The Memorandum contains sensitive business information
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`designated Confidential under the Protective Order, the public disclosure of which would risk
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`competitive harm to the Fitbit, Philips, and/or third-parties. Likewise, Exhibits 1-8 to Fitbit’s
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`Motion contain sensitive business information designated Confidential under the Protective Order,
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`Case 1:19-cv-11586-FDS Document 311 Filed 02/09/22 Page 2 of 5
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`the public disclosure of which would risk competitive harm to the Fitbit, Philips, and/or third-
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`parties. Exhibit 1 is a copy of the Expert Report of Dr. Michael P. Akemann concerning Philips’
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`alleged damages, which contains detailed discussions of Fitbit, Philips, and third-party financial
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`information, including, for example, Fitbit internal sales and marketing information, that has been
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`designated Confidential pursuant to the Protective Order. Exhibits 2-4 are patent licensing
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`agreements between Philips and third-parties, which contain sensitive financial information,
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`including the identities of third-party licensees and the terms and conditions of the license, and
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`which have been marked Confidential pursuant to the Protective Order. Exhibit 5 is an excerpted
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`copy of the Expert Report of Joseph A. Paradiso, Ph.D. Concerning Non-Infringement of U.S.
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`Patent No. 8,277, 377. The excerpted portions of Exhibit 5 contain Dr. Paradiso’s analysis of the
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`technical comparability of the licensing agreements discussed above and therefore have been
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`marked Confidential under the Protective Order for the same reasons.1 Exhibits 6 and 8 are
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`excerpted copies of the deposition transcripts of Dr. Michael Akemann and Dr. Tom Martin, which
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`contains discussions of Fitbit, Philips, and third-party financial information and licensing that has
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`been designated Confidential pursuant to the Protective Order. Finally, Exhibit 7 is an excerpted
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`copy of the Rebuttal Expert Report of Lauren R. Kindler, which similarly contains discussion and
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`analysis of sensitive Fitbit, Philips, and third-party financial information that has been designated
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`Confidential under the Protective Order.
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`For the foregoing reasons, Fitbit respectfully requests that the Court permit Fitbit to file
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`under seal its Memorandum of Law and Exhibits 1-8 filed in support of ECF No. [304], Fitbit’s
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`Motion to Strike Portions of the Expert Report and Exclude Certain Opinions and Testimony of
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`1 This Court has already granted a prior motion to file excerpts of Dr. Paradiso’s non-infringement
`report under seal. (See Dkts. 278-79.)
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`Case 1:19-cv-11586-FDS Document 311 Filed 02/09/22 Page 3 of 5
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`Dr. Michael P. Akemann. Fitbit further requests that the documents remain impounded until
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`further Order by the Court, and that upon expiration of the impoundment, the documents be
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`returned to Fitbit’s counsel.
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`Case 1:19-cv-11586-FDS Document 311 Filed 02/09/22 Page 4 of 5
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`Dated: February 9, 2022
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`By:
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`/s/ Leslie M. Spencer
`Leslie M. Spencer (pro hac vice)
`lspencer@desmaraisllp.com
`Karim Z. Oussayef (pro hac vice)
`koussayef@desmaraisllp.com
`Brian D. Matty (pro hac vice)
`bmatty@desmaraisllp.com
`Henry Ard (pro hac vice)
`hard@desmaraisllp.com
`Eric G. Speckhard
`especkhard@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
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`David J. Shaw (pro hac vice)
`dshaw@desmaraisllp.com
`DESMARAIS LLP
`1701 Pennsylvania Ave., NW, Suite 200
`Washington, D.C. 20006
`Telephone: (202) 451-4900
`Facsimile: (202) 451-4901
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`Ameet A. Modi (pro hac vice)
`amodi@desmaraisllp.com
`DESMARAIS LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 573-1900
`Facsimile: (415) 573-1901
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`Gregory F. Corbett (BBO # 646394)
`gcorbett@wolfgreenfield.com
`Elizabeth A. DiMarco (BBO #681921)
`edimarco@wolfgreenfield.com
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 646-8000
`Facsimile: (617) 646-8646
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`Attorneys for Defendant Fitbit LLC
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`Case 1:19-cv-11586-FDS Document 311 Filed 02/09/22 Page 5 of 5
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`CERTIFICATE PURSUANT TO LOCAL RULE 7.1(A)(2)
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`The undersigned hereby certifies that counsel for Fitbit conferred with counsel for Philips
`and attempted in good faith to resolve or narrow the issues in dispute on February 8, 2022, but was
`unable to do so.
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`/s/ Leslie M. Specncer
`Leslie M. Spencer
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`CERTIFICATE PURSUANT TO LOCAL RULE 37.1
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`The undersigned hereby certifies that counsel for Fitbit has complied with the provisions
`of Local Rule 37.1.
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`/s/ Leslie M. Spencer
`Leslie M. Spencer
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system,
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`which serves counsel for other parties who are registered participants as identified on the Notice
`of Electronic Filing (NEF). Any counsel for other parties who are not registered participants are
`being served by first class mail on the date of the electronic filing.
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`/s/ Elizabeth A. DiMarco
`Elizabeth A. DiMarco
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