`Case 1:19-cv-11586—FDS Document 151-4 Filed 02/17/21 Page 1 of 26
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`EXHIBIT D
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`EXHIBIT D
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 2 of 26
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`Custer, John W.
`From:
`Sent:
`To:
`Cc:
`Subject:
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`Rodrigues, Ruben J.
`Wednesday, February 17, 2021 8:13 AM
`Peterman, Chad
`BOST - F - Philips - Fitbit; Philips - Fitbit
`RE: [EXTERNAL] Re: Philips v. Fitbit - Scope of Review and Dr. Buy's contact information.
`
`Hi Chad,
`
`We believe we understand your positions and will consider our meet and confer on this issue completed and will get an
`opposed Motion with a request for emergency relief on file this evening to push the fact discovery deadline by two
`months. We will point out in that filing Fitbit's refusal to be reasonable on this issue required the unnecessary filing,
`resulting in added and unnecessary work for the parties and the Court.
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`Let me know if you're available to meet and confer at 6:00PM today on the other issues I e‐mailed about yesterday.
`
`Regards,
`
`‐Ruben
`
`‐‐‐‐‐Original Message‐‐‐‐‐
`From: Peterman, Chad <chadpeterman@paulhastings.com>
`Sent: Wednesday, February 17, 2021 7:54 AM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com>; Philips ‐ Fitbit <Philips‐Fitbit@paulhastings.com>
`Subject: Re: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
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`** EXTERNAL EMAIL MESSAGE **
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`Ruben ‐
`
`Philips pushed for a fast fact discovery schedule from the beginning of the case and the parties worked to meet the
`deadlines with some modest extensions. At this point, as expressed in my earlier emails, we believe that no further
`extensions are warranted. To the extent that there are a few currently noticed or currently subpoenaed depositions that
`need to occur out of time, we have already stated our position that those are allowable.
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`Moreover, the court made it clear that any extension request needed to be made by motion. We stand by our prior
`correspondence regarding the schedule and do not consent to extending fact discovery past the current date.
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`Chad
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`On Feb 16, 2021, at 7:52 PM, RRodrigues@foley.com wrote:
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`1
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 3 of 26
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`may be other things that I don’t have front of mind right now, though we have no intention of serving any new requests,
`and can agree not to during this period. The attempt to itemize every single item though demonstrates the concern we
`have with some sort of piecemeal itemization of exceptions to the close of fact discovery as opposed to simply
`extending the deadline. On our end, it’s unclear to us what Fitbit would argue is barred by the cut‐off were we to simply
`move it until after the Court can entertain our positions at the status conference. The Court already suggested it was
`open to some larger extension of the discovery period, so we don’t feel as though there’s any real justification at this
`point for Fitbit’s refusal to agree to this modest extension to March 5th that would avoid the need to emergency
`briefing this week.
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`In light of that, can we come to an agreement to push the fact‐discovery cut‐off to March 5th so that the Court can
`entertain our competing views on the rest of the schedule at the next status conference?
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`Regards,
`
`‐Ruben
`
`
`
`
`From: Peterman, Chad <chadpeterman@paulhastings.com>
`Sent: Tuesday, February 16, 2021 7:02 PM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com>; Philips ‐ Fitbit <Philips‐Fitbit@paulhastings.com>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`** EXTERNAL EMAIL MESSAGE **
`Ruben –
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`We are trying to understand your proposal. Would you explain what you are trying to keep open besides source code
`access and potential supplements to the source code in your request to extend fact discovery until at least March 5?
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`Thanks
`Chad
`
`
`
`From: RRodrigues@foley.com<mailto:RRodrigues@foley.com>
`<RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Sent: Tuesday, February 16, 2021 5:02 PM
`To: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Cc: BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>; Philips ‐ Fitbit <Philips‐
`Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: [EXT] RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
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`Hi Chad,
`
`I’m going to focus the response here on the scheduling issues, as I see that as the issue that we need to principally
`resolve sooner than later. We think an overall extension to the fact discovery period is warranted since that would not
`require piecemeal agreements on what the parties are agreeing to proceed with after next week’s discovery cut‐off. It’s
`also unclear what sorts of limitations you intend to impose on the “continued review” you’re offering to Dr. Buy after
`the close of fact discovery. Last week Dr. Buy identified a number of missing items from Fitbit’s Source Code production,
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`2
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 4 of 26
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`and perhaps may identify further missing items as he continues his review. Would Fitbit refuse to supplement that
`production once Feb. 23rd comes and goes despite allowing his continued “review”?
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`That said, we would be open to the notion that no new discovery requests be served in any extended fact discovery
`period, but the parties have an obvious disagreement as to what falls within the bounds of existing requests. All that
`said, we do think it makes sense to perhaps have a more detailed scheduling discussion with the Court on March 3rd,
`and not bother the court with expedited briefing to push next week’s fact discovery cut‐off. To that end, would you
`agree to extending the fact discovery cut‐off to at least Friday, March 5th so that we can then address with the Court
`Philips’s request to extend all the deadlines by two months at the status conference on March 3rd? That would seem
`like the most efficient way for us to proceed.
`
`Regards,
`
`‐Ruben
`
`
`From: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Sent: Sunday, February 14, 2021 5:51 PM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>>; Philips ‐ Fitbit
`<Philips‐Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`** EXTERNAL EMAIL MESSAGE **
`Ruben –
`
`In December, you premised Philips’ request to extend fact discovery into February because of “client availability, the
`demands of our team, competing deadlines, the demands of our experts, etc.” Rodrigues email to David Beckwith et al.
`(12/1/2020). At the recent status conference and in your February 3 email you shifted tone, Philips premised its request
`to extend fact discovery solely on source code review (a premise that you did not mention at all in December or until
`shortly before the conference). Despite Philips’ lack of diligence in reviewing the code (including waiting four months
`before even starting to review the code), Fitbit agreed to extend the review time past the current close of discovery for
`over a month. Unsatisfied with Fitbit’s counterproposal, Philips now alleges a host of manufactured or misleading
` and testimony
`discovery disputes and attempts to leverage its own inability to timely produce documents from
`from
`in an attempt to further justify extending all fact discovery. Philips’ tactics are transparent and wholly
`inappropriate.
`
`We maintain our position that closing fact discovery on February 23 is appropriate, with the following exceptions:
`
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`1) Philips is allowed to review source code until the end of March
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`
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`2) All currently noticed party and third party depositions that are not currently scheduled must be completed as soon
`as reasonably possible, including within a few weeks after February 23 if necessary
`
`Fitbit does not agree to the service of any additional discovery requests or deposition notices/subpoenas or to
`reopening closed depositions. As I stated in my earlier emails, Philips already took several Fitbit technical depositions
`knowing that it did not have source code. Those witnesses answered all of Philips’ questions and only referenced source
`code
`, which
` is designated on.
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`3
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 5 of 26
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`Further, given that the Court will have a status conference in early March where we may have some clarity on the
`Court’s intentions with respect to Markman and 12(b)(6) determination, we propose that the parties only move the
`Court to extend fact discovery on the limited basis outlined above and agree to revisit the rest of the schedule following
`the status conference. Without having some indication of the Court’s timing (including whether the Court wants
`additional hearings or briefing), negotiating a schedule is inefficient unless Philips would agree to trigger dates based on
`the Markman decision as we initially opposed.
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`Turning to the other points you raised in your email:
`
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`1) The subpoena that we served is timely and would count as the 10th deposition, which we can take without leave of
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 6 of 26
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`We reserve the right to raise additional issues. Please provide your availability for a meet and confer this week on the
`open issues.
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`Regards,
`Chad
`
`
`
`From: RRodrigues@foley.com<mailto:RRodrigues@foley.com>
`<RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Sent: Saturday, February 13, 2021 6:46 AM
`To: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Cc: BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>; Philips ‐ Fitbit <Philips‐
`Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: [EXT] RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`Hi Chad,
`
`With respect to the schedule, would further discussion be worthwhile or shall we get an opposed motion on file (the
`request would be to extend all deadlines by two months).
`
`Regards,
`
`‐Ruben
`
`From: Rodrigues, Ruben J.
`Sent: Tuesday, February 9, 2021 3:44 PM
`To: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>>; Philips ‐ Fitbit
`<Philips‐Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`Hi Chad,
`
`
`5
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 7 of 26
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`We’re somewhat surprised that Fitbit would object to an extension of fact discovery when, late last week, it served a
`new subpoena on a third party for document and depositions, and where said deposition would be beyond the 10
`allowed to be taken without leave of court under the rules. We also can’t agree to simply extend source code review
`without knowing if all the code has been made available, and whether depositions of additional witnesses might be
`necessary. Additional time will also be needed to complete
` and make
`
`available for his deposition.
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`That said, we have no intention of taking off calendar the depositions that are presently scheduled
`, nor would that be the purpose of the extension.
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`Philips will not waive the right to seek additional deposition time with any witness in view of Fitbit’s refusal to produce
`documents and make source code available to date. We have no desire to take any such additional deposition unless
`necessary, but cannot at this point make any agreement to make such a waiver or commitment.
`
`Philips also does not agree to your proposal that the parties effectively stay the case indefinitely until the Court rules on
`claim construction. While we are willing to join an overall request that pushes out the schedule in a reasonable manner
`and that accommodates the Court, we believe the most prudent route, consistent with the local rules and schedules
`governing patent cases in the District of Massachusetts, would be to enter an overall case schedule.
`
`In view of Fitbit’s refusal to agree to a potential change in the overall schedule that would also extend the fact discovery
`deadline, we intend to file an opposed motion requesting that the Court extend the fact discovery cutoff by two months,
`as well as all subsequent deadlines by a commensurate period of time. Let me know if you think further discussion or
`potential agreement is possible on that front, or whether you have an alternative proposal that you would advocate for
`such that a joint filing with competing proposals might make sense. Either way, we anticipate filing on these points later
`this week or early next week.
`
`Regards,
`
`6
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`
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 8 of 26
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`
`‐Ruben
`
`From: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Sent: Friday, February 5, 2021 4:19 PM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>>; Philips ‐ Fitbit
`<Philips‐Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`** EXTERNAL EMAIL MESSAGE **
`Ruben –
`
`With respect to the schedule, a 90 day extension of fact discovery of the scope you are suggesting is unwarranted for
`the reasons explained in my February 3 e‐mail. Given the discovery that has occurred to date, including the completion
`of numerous 30(b)(6) depositions, there is very little discovery outstanding. We will not agree to reopen closed 30(b)(6)
`topics nor will we subject witnesses that have already been deposed to further depositions. We propose the following:
`
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`(1) The depositions of
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` and
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` should go on as scheduled.
`The deposition of
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`scheduled. Please make sure
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`(2) The deposition of
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` is prepared to testify on
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` should go on as scheduled on February 17.
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` will also continue as
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` To
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`, it has sufficient time to review in advance of his
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`the extent Philips wants to use source code with
`deposition.
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`(3) We are amenable to allowing Dr. Buy to continue to access the source code until the end of March.
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`(4) We will not make any of the witnesses that you chose to depose before regaining access to the code available for an
`additional deposition or reopen 30(b)(6) topics. Specifically, Philips went into the depositions of
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`including on the 30(b)(6) Topics for which they each had been designated, knowing that you would only
`have one session of their deposition. Philips elected to go forward with full knowledge of its own level of preparedness
`to take and complete these depositions. Moreover, those witnesses testified knowledgably on the 30(b)(6) topics they
`were designated for and only referenced source code
` (which will be covered in the
`30(b)(6) deposition referenced in point (2) above). Philips did not hold
` depositions
`open or claim that they were not prepared in the topics they were designated for.
`
`In addition, we propose to tie expert reports to the court’s claim construction ruling. Opening expert reports will be due
`45 days after the Court’s decision with rebuttal reports 40 days after that and reply reports 21 days thereafter. Please let
`us know if you would like to discuss any of the above.
`
`Regards,
`
`7
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 9 of 26
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`Chad
`
`
`
`From: RRodrigues@foley.com<mailto:RRodrigues@foley.com>
`<RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Sent: Friday, February 5, 2021 10:11 AM
`To: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Cc: BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>; Philips ‐ Fitbit <Philips‐
`Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: [EXT] RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`Hi Chad,
`
`Did you have additional thoughts on the schedule? Would it be helpful to chat?
`
`Regards,
`
`‐Ruben
`
`From: Rodrigues, Ruben J.
`Sent: Wednesday, February 3, 2021 3:40 PM
`To: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>>; Philips ‐ Fitbit
`<Philips‐Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`Hi Chad,
`
` I
`
` don’t want to continue the unhelpful back‐and‐forth on the history here, suffice it to say we generally disagree with
`Fitbit’s characterizations. That said, we’re pleased to restart the source code review and Dr. Buy is available beginning
`9:00AM Central this Friday, Feb. 5th to restart the review. Can you advise who on the Fitbti team we should coordinate
`with and provide a Zoom link for the review? We can also agree that going forward Dr. Buy will have no mobile device in
`the room with him, though disagree that this is a requirement of the present protective order.
`
`In view of our earlier discussion with the Court, please advise whether Fitbit has reconsidered its position on a schedule
`change. We think an extension of all deadlines for 90 days, not only to allow completion of the source code review and
`any follow‐up depositions that may be necessary, but also to accommodate the Court so that it can address the
`outstanding Markman briefing and pending motion. Would you agree? If so, we can get a draft stipulation together.
`Am also happy to discuss further if you’d like to get on the phone. Just let us know.
`
`Regards,
`
`‐Ruben
`
`From: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Sent: Wednesday, February 3, 2021 12:39 AM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>>; Philips ‐ Fitbit
`<Philips‐Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`
`8
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 10 of 26
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`** EXTERNAL EMAIL MESSAGE **
`Ruben ‐
`
`Your email misstates a number of the foundational facts you seek to rely on to justify extending the schedule for four
`months. Philips’ consistent failure to diligently seek review of Fitbit’s source code is the sole reason Philips is in its
`current position. Fact discovery should end as scheduled and Philips’ dilatory behavior should not be excused through
`an extension.
`
`Source Code Review Was Always An Afterthought by Philips
`
`Philips has been dilatory with source code review. Fitbit made source code and documents available to Philips on April
`15, 2020. Philips did not even designate an expert to review source code until August 25, 2020 (this left only 7 weeks to
`complete the code review before the then‐pending fact discovery cut off). Philips noticed Fitbit's technical witnesses
`depositions for the first time on August 17, 2020, before its code reviewer was even capable of looking at Fitbit code
`under the protective order’s notice period. When Dr. Buy finally started to look at code, he sought review of Fitbit’s code
`on weekends and holidays only, not during the week. Code review was treated as an afterthought by Philips.
`
`Dr. Buy's Actions Violated the Source Code Order
`
`As a result of Dr. Buy's improper possession and use of a mobile phone during the code review, Judge Talwani (not
`Fitbit) ordered that Dr. Buy would not be able to review code until the matter was resolved. 9‐23‐2020 Hearing Tr. at
`36:12‐38:15. She found Dr. Buy's acts were improper. She noted: "First of all, with all of these layers of protocol, I
`understand that, you know, we're now in COVID world and everyone's wearing sweatpants instead of suits, but it
`doesn't mean that the rules aren't the same. And the notion that in all of this, the expert ‐‐ carefully constructed with a
`Zoom observation and all of these things ‐‐ that there would be casual phone use is fairly surprising to me." Tr. 36:15‐21.
`The reason that Judge Talwani stopped review was solely because of Dr. Buy's actions, not Fitbit's.
`
`Indeed Fitbit sought to move past Dr. Buy's violation quickly before involving Judge Talwani with Mr. Neubecker
`performing an analysis. Mr. Neubecker discovered a clock discrepancy with Dr. Buy's device (which Dr. Buy does not
`dispute) and sought simply to check Dr. Buy's Google cloud account to ascertain whether source code pictures were
`there. Rather than letting Mr. Neubecker perform his analysis, Philips objected, which forced Fitbit to seek the court's
`assistance.
`
`After the court's ruling, Fitbit once again sought to move past Dr. Buy's violation of the protective order quickly. We
`jointly interviewed Mr. Spencer on October 1. He was qualified and could have performed the analysis quickly. Philips
`rejected him, which eventually led to retaining Mr. Cowen several months later. At any point, Philips could have
`accelerated the process by allowing Mr. Neubecker access, retaining Mr. Spencer, or using a different code expert for its
`review. We emphasize that at any time during the past four months, Philips could have retained an additional code
`expert to continue code review. As Dr. Buy had only begun review days before he was observed violating the protective
`order, a new code expert would not have resulted in any meaningful loss of review time. Philips did not do any of these
`things in order to allow the review to proceed. Philips was content to let the review stay suspended.
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`Philips Never Raised Lack of Access to Source Code Prior to Technical Fact Depositions or with Judge Talwani
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`As you know, the original fact discovery cut off was set for Oct. 14, 2020, per Philips’ request. On September 18, 2020,
`the parties filed a joint request to extend fact discovery to December 11, 2020. And on December 3, 2021, the parties
`submitted a joint request to extend fact discover until February 23, 2021. Not once, until the eve of a status conference
`before Judge Saylor, did Philips ever contend it needed additional time to review the source code.
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`Indeed, Philips scheduled and proceeded with two technical depositions in January knowing that it had not completed
`source code review. Philips never raised the need to review source code as a condition for taking the depositions, and
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`9
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 11 of 26
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`there is no basis for bringing either witness back. Those witnesses only referenced the need to review code to answer
`two questions related to the details of the GPS algorithm. Neither witness was designated as Fitbit’s 30b6 witness on the
`operation of GPS functionality in Fitbit’s accused products, including algorithms relating to analysis of collected GPS
`data. Indeed, a different 30b6 designee will be deposed in three weeks on that topic relating to the GPS functionality.
`Fitbit informed Philips on January 21, 2021 that
` will be designated on topics “related to the ’007
`patent.” Philips has sufficient time to review Fitbit’s source code before
` deposition, should it elect to
`do so.
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`In order to enable the review, Fitbit will permit Dr. Buy to resume his review now if Philips does not seek additional time
`for fact discovery. It goes without saying that Dr. Buy should not have a mobile device with him in the code review
`room. Fitbit does not agree to an extension of fact discovery. Philips has provided no reasonable justification to extend
`the deadline once again. Further extension will prejudice Fitbit, which has worked diligently to complete fact discovery
`in a timely manner and scheduled all Fitbit witnesses that Philips has noticed.
`
`Regards,
`Chad
`
`
`‐‐‐‐‐Original Message‐‐‐‐‐
`From: RRodrigues@foley.com<mailto:RRodrigues@foley.com>
`<RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Sent: Tuesday, February 2, 2021 4:27 PM
`To: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Cc: BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>; Philips ‐ Fitbit <Philips‐
`Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: [EXT] RE: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`Hi Chad,
`
`For over four months since September, Fitbit has refused to permit discovery to proceed in relation to its source code.
`In the meanwhile, Fitbit's witnesses are taking the position in depositions that the answers to technical questions can
`only be found in the source code. Two expert reviews have demonstrated that Fitbit's claims that Dr. Buy took pictures
`of Fitbit's source code are utterly baseless. One examined his phone and the other examined his Google account.
`Nevertheless, Fitbit continues to interfere with legitimate discovery, inflating the cost of the litigation and multiplying
`the proceedings. We reserve the right to re‐depose any and all Fitbit witnesses once Philips is able to proceed with its
`source code review, and reserve the right to demand that Fitbit bear all the costs associated with those continued
`depositions.
`
`Your assertion that Dr. Buy waited to review the source code is unfounded. As you know, Dr. Buy was reviewing the
`code for the ITC proceedings that had earlier deadlines. When it came time for Dr. Buy to continue his review in this
`case, Fitbit unreasonably blocked his review, demanding that Dr. Buy wait to start his review until the waiting period in
`the protective order expired—despite the fact that Fitbit had already previously authorized Dr. Buy’s access to source
`code in the ITC action, under a protective order with identical terms as the one in this case.
`
`The protective order does not prohibit Dr. Buy from having his mobile phone on him, and indeed mobile phones used
`and observed during the ITC review without complaint from Fitbit. Among other things, this permits the reviewing
`experts to confer with litigation counsel and respond to family members. We note that, in this instance, Fitbit originally
`asserted that mobile phones could not be used and then (once that position was shown to be without merit) Fitbit fell
`back on its baseless assertion that pictures were taken of the source code. The evidence is uncontroverted that no
`pictures were taken and Fitbit's allegations are false.
`
`
`10
`
`
`
`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 12 of 26
`
`With respect to Mr. Neubecker, he was not neutrally engaged, and Fitbit did misrepresent the nature of his engagement
`in a successful effort to induce Philips and Dr. Buy to agree to voluntary review. That is apparent from Fitbit’s refusal to
`agree to the production of communications with Mr. Neubecker when negotiating the scope of his retention,
`representations made by Fitbit over the phone during said negotiations, and then the scope and contents of Mr.
`Neubecker’s report.
`
`With regards to Mr. Spencer not being selected, he was unable conduct the review that Fitbit had actually suggested,
`namely, a review of the Google backup to determine whether photos were backed up. A limited review of Dr. Buy’s
`Google backup is all that Fitbit suggested at the conclusion of the telephonic hearing with Judge Talwani. Mr. Spencer,
`however, believed he could not perform a project with such a limited scope, and would need to review the device—a
`review that Fitbit had already conducted with Mr. Neubecker—who found no evidence of source code photos or deleted
`photos on Dr. Buy’s phone. Indeed, we were able to find Mr. Cowen, who did complete a review of the appropriate
`scope. Fitbit is dissatisfied now with that review because the results confirm, yet again, that Fitbit's accusations are
`baseless.
`
`There is no good faith basis for your request that Mr. Cowen review Dr. Buy’s phone again. Fitbit’s own expert, Mr.
`Neubecker, reviewed it previously and found no evidence of source code pictures. You have stated that the scope of his
`review was so broad as to encompass any ”unusual system activity” including deleted photos. There simply is no basis
`for your continued demands and refusal to permit discovery to advance.
`
`All this notwithstanding, in an effort to move past this tortured history and perhaps bring this issue to a close, Philips
`would be willing to make both Dr. Buy’s phone as well as the image we collected, available to Dr. Cowen for further
`review consistent with the following terms:
`
`•Fitbit agrees that Dr. Buy’s source code review may continue if Mr. Cowen’s review fails to identify any pictures of
`source code taken on September 5th, 2020, or evidence that any pictures taken during the time that Dr. Buy was
`conducting his source code review on September 5th, 2020 were deleted.
`•Fitbit agrees not to rely on Mr. Neubecker’s report/analysis for any purpose going forward in this litigation since Mr.
`Cowen’s review will supplant the earlier review.
`•The parties agree to a four‐month extension of time to the fact discovery period (and subsequent deadlines) to allow
`for the completion of Mr. Cowen’s review and the subsequent completion of Dr. Buy’s source code review which has
`been interrupted since September (over four months ago).
`
`Let us know if this will work.
`
`Regards,
`
`‐Ruben
`
`‐‐‐‐‐Original Message‐‐‐‐‐
`From: Peterman, Chad <chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>>
`Sent: Monday, February 1, 2021 10:53 PM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com<mailto:RRodrigues@foley.com>>
`Cc: BOST ‐ F ‐ Philips ‐ Fitbit <BOSTFPhilipsFitbit@foley.com<mailto:BOSTFPhilipsFitbit@foley.com>>; Philips ‐ Fitbit
`<Philips‐Fitbit@paulhastings.com<mailto:Philips‐Fitbit@paulhastings.com>>
`Subject: Re: [EXTERNAL] Re: Philips v. Fitbit ‐ Scope of Review and Dr. Buy's contact information.
`
`** EXTERNAL EMAIL MESSAGE **
`
`
`Ruben ‐ We have received no response from Philips. Please let us know whether Philips will agree to let Mr. Cowen
`review the phone of Dr. Buy to determine whether there is any evidence of deletion from Dr. Buy’s cloud account.
`
`11
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`
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`Case 1:19-cv-11586-FDS Document 151-4 Filed 02/17/21 Page 13 of 26
`
`
`Regards,
`Chad
`
`
`On Jan 26, 2021, at 12:18 AM, Peterman, Chad
`<chadpeterman@paulhastings.com<mailto:chadpeterman@paulhastings.com>> wrote:
`
`Ruben ‐
`
`Throughout this whole process Philips has engaged in unfounded attacks alleging that Fitbit has sought to delay and
`frustrate the proceedings. The actual facts demonstrate that Philips is squarely responsible for any "delay" and that
`Fitbit acted reasonably in seeking to protect its code from unauthorized disclosure and copying.
`
`Philips' pattern of delay with respect to the source code started when Philips failed to review Fitbit's code for 4 months
`after it was first available before engaging Dr. Buy. Then, when Dr. Buy did begin review, he was only available on
`weekends and holidays.
`
`Soon after he began review, Dr. Buy violated the protective order by using his smart phone in front of the review
`computer. This violation is undisputed and solely Philips' fault. Fitbit sought to quickly determine whether Dr. Buy took
`photographs of the code and retained Mr. Neubecker, whose scope of engagement expressly permitted him to
`investigate "if there was unusual system activity." Mr. Neubecker was acting within the scope of his neutral engagement
`when he reported the "unusu