Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 1 of 8
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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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`MEMORANDUM IN SUPPORT OF PLAINTIFF’S OPPOSED EMERGENCY MOTION
`TO EXTEND FACT DISCOVERY AT LEAST THROUGH MARCH 5th, 2021 SO THAT
`THE PARTIES MAY DISCUSS FURTHER EXTENSIONS TO THE CASE SCHEDULE
`WITH THE COURT
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`Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 2 of 8
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`I. INTRODUCTION
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`At the recent status conference on February 3, 2021, Philips raised the need for an extension
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`to the current fact discovery cut-off of February 23, 2021 because of Fitbit’s four month long
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`refusal to allow Philips’s expert to review relevant source code—a review that Fitbit finally
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`allowed to start on February 8th and has since been hampered by technical difficulties and
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`missing code.
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`Since the status conference, and per the Court’s instruction that the parties meet and confer
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`on an extension, Philips first proposed extending the fact discovery cut-off by 90 days, then two
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`moths. Fitbit has refused to agree to an extension of the February 23, 2021 fact-discovery
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`cutoff. This is so despite the fact that Fitbit itself intends to continue taking discovery from third
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`parties after the current fact discovery cut-off date. Indeed, one-third party witness was not
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`served by Fitbit until February 8, 2021. See Exhibit A, Proof of Service to Gerald E. Helget.
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`While Fitbit has suggested that it would be amenable to a piecemeal extension of fact
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`discovery whereby Philips identifies specific items that it seeks to continue discovery on past the
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`fact-discovery cut-off, Philips views such a proposal as unworkable in view of the potential need
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`for follow-up discovery related to its source code review, as well as the need for supplemental
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`discovery associated with other areas on which Fitbit’s production has been deficient, and on
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`which the parties continue to meet and confer over. While Fitbit has agreed that Philips’s source
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`code review expert may continue reviewing source code through the end of March, it has not
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`agreed that it would supplement the source code production after the current fact discovery cut-
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`off of February 23, 2021 were Philips’s expert to identify further deficiencies as his review
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`progresses. This is simply not workable in view of the fact that Philips’s expert won’t be able to
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`determine whether particular source code files are missing until he is in the middle of said
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`review.
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`Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 3 of 8
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`In light of Fitbit’s refusal to agree to Philips’s request that fact discovery be extended by two
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`months, and in order to lessen the burden on the Court and the Parties, Philips suggested to Fitbit
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`that the parties at least agree to an extension of the fact discovery cutoff through March 5th, 2021
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`(an extension of 10 days), which would allow the parties and the Court to discuss scheduling
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`issues at the status conference presently set for March 1st, 2021. On February 17, 2021 Fitbit
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`rejected that proposal, and Philips felt as though it had no option but to get this emergency
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`request for relief on file in advance of the February 23rd fact discovery cut-off. While Philips
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`believes a two month extension to the fact discovery cut-off is justified and reasonable under the
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`circumstances, Philips presently seeks to simply extend the fact-discovery cut-off until March
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`5th, 2021 so that the parties and the Court can engage in a fulsome discussion of the case
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`schedule on March 1st, 2021.
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`II. STATEMENT OF FACTS
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`A.
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`Expert Review of Fitbit’s Source Code
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`Philips understands that the Court has expressed a desire to avoid a “fight about this source
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`code issue unless you think you really need to.” Transcript of Status Conference at 9:24-25:1.
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`Indeed, the history of the dispute with respect to allowing Philips’s access to Fitbit’s source code
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`has been a tortured one. In an attempt to avoid delving into a blame game on the issue, Philips
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`would prefer to focus on the simple fact that, after an extended period of time where Fitbit did
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`not allow Philips’s expert to review its source code while the parties resolved a dispute as to
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`whether the source code review should continue, Fitbit eventually allowed the source code
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`review to resume last week, on February 8th, 2021. See Exhibit B, Email Correspondence
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`Between John Custer and David Beckwith. The period from February 8th through February 23rd
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`is simply not enough time for Philips’s expert, Dr. Ugo Buy, who is a full-time professor with
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`teaching obligations at the University of Illinois at Chicago, to complete his review. What is
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`Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 4 of 8
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`more, since February 8th, the review has encountered technical difficulties that have further
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`delayed access to the source code by at least a full day.1 See Exhibit C, Email Correspondence
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`Between John Custer and David Beckwith.
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`B.
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`Status Conference
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`After Chief Judge Dennis Saylor, IV was reassigned to this case following the recusals of
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`Judges Talwani and Sorokin, a telephonic status conference was held on February 3, 2021.
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`During the conference, Philips raised the possibility of extending the fact discovery deadline, the
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`cut-off date currently being set for February 23, 2021. See Doc. Nos. 126-127. The Court noted
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`that it did not “see any harm in putting it out, you know, 60 or 90 days if that’s what you think
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`you need” and that doing so would “relieve the pressure here while, among other things, I’m
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`sorting out things on my end and you can get done on your end what you need to do.” Transcript
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`of Status Conference at 9:20-10:10. The Court instructed the parties to meet and confer as to how
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`much of an extension would be necessary. Id. Both parties agreed to meet and confer, and Fitbit
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`raised no objections at the time to an extension of the fact discovery cut-off date.
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`C.
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`Communications Between the Parties Following Status Conference
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`Immediately following the telephonic status conference, on February 3rd, Philips’s counsel
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`emailed Fitbit’s counsel suggesting that the parties draft a joint motion to extend all deadlines by
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`90 days. See Exhibit D, Email Correspondence Between R. Rodrigues and C. Peterman, at 8
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`(email from Mr. Rodrigues sent February 3, 2021 at 3:40 PM). Fitbit’s counsel replied that a 90
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`day extension of fact discovery was “unwarranted” and refused to agree to any extension of the
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`fact discovery cut-off date. Id. at 7 (email from Mr. Peterman sent February 5, 2021 at 4:19 PM).
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`Fitbit noted that it would be amenable to allowing Philips’s expert access to Fitbit’s source code
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`1 To be clear, Philips does not believe that these technical difficulties were anything other than that, and does not
`accuse Fitbit of any impropriety in making the code available. These difficulties, however, reflect the realities that
`can hamper a remote source code review in the present work-from-home situation that we all find ourselves in.
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`Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 5 of 8
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`until the end of March, but subsequently would not confirm that it would supplement the
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`produced source code past the fact-discovery cut-off date were Philips’s expert to identify
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`deficiencies in the production. Id. at 7 (email from Mr. Peterman sent February 5, 2021 at 4:19
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`PM).
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`Philips then proposed filing a joint motion to extend the discovery cut-off date until March 5,
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`2021 so that all these matters, including extending fact discovery and the general schedule, could
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`be discussed with the Court at the previously scheduled March 3rd status conference. Id. at 2-3
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`(email from R. Rodrigues sent February 16, 2021 at 5:02 PM). Philips noted that doing so would
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`avoid emergency motion practice, and in subsequent emails notified Fitbit that if it refused,
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`Philips would be forced to file an opposed emergency motion requesting an extension of the fact
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`discovery cut-off set for February 23, 2021. Id. at 1-2 (emails from R. Rodrigues sent February
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`16, 2021 at 7:52 PM and February 17, 2021 at 8:13 AM). Fitbit again refused any extension to
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`the February 23, 2021 fact discovery cut-off date. Id. at 1-2 (emails from Mr. Peterman sent
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`February 16, 2021 at 7:02 PM and February 17, 2021 at 7:54 AM).
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`III. GOOD CAUSE EXISTS TO MODIFY THE SCHEDULING ORDER
`Local Rule 16.1(g) provides that modification of the scheduling order “can be modified
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`only by order of the judicial officer, and only upon a showing of good cause supported by
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`affidavits, other evidentiary materials, or references to pertinent portions of the record.”
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`Good cause exists in this case for four reasons:
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`First, in view of the recent reassignment of this case to Judge Saylor, not even Fitbit
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`expects that the current case schedule will remain in place. Indeed, Fitbit has suggested that all
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`dates except the fact discovery cut-off on February 23rd, 2021 be extended until after the Court’s
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`claim construction ruling. While Philips disagrees with this approach, and believes that instead a
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`concrete schedule that provides enough time for the Court to address claim construction would be
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`Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 6 of 8
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`more appropriate, there is simply no logical reason not to also extend the fact discovery cut-off.
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`Indeed, the Court previously recognized that there would be no harm in such an extension during
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`the last status conference, suggesting that an extension of “60 or 90 days” would be reasonable.
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`See Transcript of Feb. 3, 2021 Status Conference at 10:5-6.
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`Second, Philips has repeatedly stressed to Fitbit that it would need time to review Fitbit’s
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`source code once allowed to review it. Indeed, before allowing the review to proceed, Fitbit had
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`been pushing for additional delay that would have necessarily required an extension to the
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`discovery period. While Fitbit reversed course and actually allowed the review to proceed,
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`providing 12 business days within the fact discovery period (February 8th through February 23rd)
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`for Philips to review the source code associated with more than twenty accused products is not
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`reasonable. That Fitbit would allow the source code review to proceed through the end of March
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`despite the fact-discovery cutoff is of little comfort in light of the fact that Fitbit is not committing
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`to supplement its production after the cut-off were deficiencies to be identified. An extension of
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`the fact discovery cut-off is therefore necessary to avoid prejudicing Philips’s ability to conduct
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`this essential discovery.
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`IV. CONCLUSION
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`For the foregoing reasons, Philips requests that the fact discovery cut-off be extended at least
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`until March 5, 2021 (by a total of 10 days) so that the parties can have a more fulsome discussion
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`of the case schedule, including a further extension of the fact discovery cut-off, at the status
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`conference set of March 1, 2021.
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`Case 1:19-cv-11586-FDS Document 151 Filed 02/17/21 Page 7 of 8
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`Dated: February 17, 2021
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`Respectfully Submitted,
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` /s/ Eley O. Thompson
`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 151 Filed 02/17/21 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above document was
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`served on February 17, 2021 on counsel for Defendant via electronic mail.
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`By: /s/ John W. Custer
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