Case 1:19-cv-11586-IT Document 104 Filed 09/03/20 Page 1 of 5
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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-IT
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`FITBIT’S OBJECTION TO PHILIPS’S STATEMENT IN ADVANCE
`OF STATUS CONFERENCE (D.I. 103)
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`Fitbit respectfully objects to Philips’s late filing of its Statement In Advance of Status
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`Conference (D.I. 103). Fitbit is mindful of the Court’s order that the parties provide a joint
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`report in advance of the status conference. Fitbit solicited Philips’ input for the draft joint report
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`to meet the Court’s requirements, and submitted a unilateral report only when Philips told Fitbit
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`it would not provide input to the joint report in time to meet the Court deadline. This objection is
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`necessary to correct the factual misstatements in Philips’ untimely and unilateral submission.
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`Pursuant to the Court’s scheduling order (D.I. 54) and Local Rule 16.6 (c)(3)(D), a joint status
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`report was due by close of business on September 2, 2020. When Fitbit recognized that it had
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`not received a draft status report from Philips (given that it is customary for Plaintiff to take the
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`lead), Fitbit prepared a draft joint report and sent to Philips in an attempt to reach agreement.
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`Despite Fitbit providing its draft over three hours before the joint report was due and despite the
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`fact that Fitbit and Philips had already met and conferred on the issues in the draft, Philips
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`responded that it did not think such a joint report was necessary and could not provide input until
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`September 3, 2020. In order to avoid missing the Court-mandated deadline, Fitbit filed its
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`statement on its own.
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`Case 1:19-cv-11586-IT Document 104 Filed 09/03/20 Page 2 of 5
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`Further, Fitbit emailed Philips shortly after filing and requested that if or when Philips
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`intended to offer its portion of the joint report, Fitbit be provided with an opportunity to include
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`comments to Philips’ report, just as Fitbit provided Philips with that opportunity. Philips ignored
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`the request and filed its statement at 10:48 PM on September 2, 2020. The statement is untimely
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`and mischaracterizes both the facts surrounding Fitbit’s timely submission, and the status of
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`discovery in this action.
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`With respect to Philips’ argument of alleged non-compliance with Local Rule 16.6
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`(d)(4)(B), which specifically identifies production of source code as a means for compliance,
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`Fitbit believes that it has complied with this Court’s requirements and, in any event, had asked
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`Philips what it contended was missing. Specifically, on April 15, 2020 Fitbit informed Philips
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`that it had collected source code materials responsive to Local Rule 16.6 (d)(4)(B) and these
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`materials are available pursuant to paragraphs 9 and 12 of the protective order entered in this
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`action. Philips took no action to review the materials that were available. Philips first complaint
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`that Fitbit’s production was allegedly deficient was August 24, 2020, yet Philips had still not yet
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`examined any of the source code-related materials that were available since April 15. Indeed,
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`Philips did not qualify an expert to access the source code-related materials until August 28,
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`2020. Philips expert did not access the source code materials until September 2, 2020. Philips
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`could not have formed any legitimate basis for complaint regarding the production of technical
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`information because they had not yet examined what was available.
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`On August 26, 2020 Fitbit asked Philips to identify exactly what they contend is missing
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`from the technical disclosure of material sufficient to show how the accused features operate,
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`making note of the fact that Philips has not yet examined any Fitbit source code; Philips did not
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`respond. In sum, beyond an attorney claiming that the Local Rule 16.6 (d)(4)(B) production was
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`Case 1:19-cv-11586-IT Document 104 Filed 09/03/20 Page 3 of 5
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`deficient, Philips has identified no basis for its complaint that Fitbit’s production is deficient.
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`Indeed how could it form a basis for complaint, since it has not examined any of the source code-
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`related materials specifically identified as responsive to Rule 16.6 (d)(4)(B) that Fitbit has made
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`available since April 15, 2020.
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`Philips suggestion that the Court extend existing deadlines 45 days is without good cause.
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`Philips sat on its hands for four and a half months while Fitbit’s source code-related materials
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`were available to review and they did nothing. Extending deadlines in such a situation rewards
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`Philips’ lack of diligence. Philips requested the accelerated schedule that the Court adopted at the
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`scheduling conference on March 24, 2020 in the first instance. Fitbit is prepared to meet that
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`schedule.
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`With respect to Philips’s claim regarding Fitbit’s response to Philips’s Interrogatory No. 2,
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`Philips’s report submitted at 10:48 pm on September 2 was the first time that it has raised the
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`issue with Fitbit. Fitbit is now investigating and will supplement its response if appropriate.
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`Fitbit notes that Philips has had access to Mr. Quy since before the lawsuit was filed and
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`represented him at his deposition. It is therefore surprising that it is raising this issue so late.
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` If the Court wishes, Fitbit will work with Philips to prepare a joint report, as it offered to do
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`before the initial submission, however Fitbit does not believe the substance of the parties’
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`positions will be any different. Fitbit looks forward to discussing with the Court the claim
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`construction issues and the pending motions that were supposed to be the subject of the status
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`conference. If the Court wishes to discuss discovery issues Fitbit is fully prepared to provide the
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`Court with facts.
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`Case 1:19-cv-11586-IT Document 104 Filed 09/03/20 Page 4 of 5
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`Dated: September 3, 2020
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`FITBIT, INC.
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`By Its Attorneys,
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`/s/ Yar R. Chaikovsky
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.com
`Dave Beckwith
`davidbeckwith@paulhastings.com
`David Okano
`davidokano@paulhastings.com
`Radhesh Devendran
`radheshdevendran@paulhastings.com
`Berkeley Fife
`berkeleyfife@paulhastings.com
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`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone: 1(650) 320-1800
`Facsimile:
`1(650) 320-1900
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`Jennifer B. Furey (BBO # 634174)
`Andrew T. O’Connor (BBO # 664811)
`GOULSTON & STORRS PC
`400 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 482-1776
`Facsimile: (617) 574-4112
`E-mail: jfurey@goulstonstorrs.com
`aoconnor@goulstonstorrs.com
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`Case 1:19-cv-11586-IT Document 104 Filed 09/03/20 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I certify that a true copy of the above document was served on the attorney of
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`record for each party via the Court’s CM/ECF system, which will send notification of this filing
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`(NEF) to all registered participants, and paper copies will be sent to those indicated as
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`nonregistered participants.
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`Dated: September 3, 2020
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`By: /s/ Yar R. Chaikovsky
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`Yar R. Chaikovsky (Pro Hac Vice)
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