Case 1:19-cv-11586-FDS Document 200-15 Filed 06/18/21 Page 1 of 4
`Case 1:19-cv-11586—FDS Document 200-15 Filed 06/18/21 Page 1 of 4
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`EXHIBIT O
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`EXHIBIT 0
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`Case 1:19-cv-11586-FDS Document 200-15 Filed 06/18/21 Page 2 of 4
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`From:
`To:
`Cc:
`Subject:
`Date:
`Attachments:
`
`Rodrigues, Ruben J.
`Eric Speckhard
`BOST - F - Philips - Fitbit; Fitbit Philips DC Service
`[Ext] RE: [EXTERNAL] Re: Philips v. Fitbit - Scope of Review and Dr. Buy"s contact information.
`Friday, May 28, 2021 11:07:25 PM
`We sent you safe versions of your files.msg
`2021.05.28 - Philips Supplement to Confidential Privilege Log re A. Tol e-mails.pdf
`
`Mimecast Attachment Protection has deemed this file to be safe, but always exercise caution when opening files.
`
`**EXTERNAL EMAIL** This email originated from outside the company. Do not click on any link unless you recognize the
`sender and have confidence the content is safe.
`
`Hi Eric,
`
`As per your request we went back through to double check certain entries in the privilege log for Mr.
`Tol’s e-mails that you had flagged. Attached please find a supplement to the privilege log that makes
`some additional corrections, and also provides a little more detail with respect to why these entries are
`protected from discovery. Additionally, upon this review we confirmed that entries previously
`identified as 162 and 163 should be produced and will so produce them. As previously explained, after
`service of the initial privilege log we did a second pass through the logged materials, produced many
`materials that were inadvertently included on the log, and corrected descriptions that were initially
`inaccurate. Upon this further additional review we identified very few errors, but, nonetheless
`endeavored to correct any issues and provide additional detail in an effort to address any concerns that
`Fitbit may have per our earlier discussion.
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`I can further confirm that the earliest item on the privilege log for which Philips claims work product
`protection arising out of anticipated litigation with Fitbit (including U.S. and foreign litigation) is June
`2, 2015.
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`With regards to professional statute filings for Dutch attorneys, I can confirm that Ewoud Caspers has
`had a professional statute filed, and Philips also believes Laura Bonnes has a professional statute filed
`but has been unable to verify that in the past couple of weeks because certain individuals have been out
`of the office. I reiterate that we believe the professional statute filing has little bearing on whether any
`logged materials should be protected from discovery in this case.
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`Additionally, you asked that we elaborate as to why communications with Dutch Patent Attorneys, or
`“octrooigemachtigden,” are protected from discovery. Under Dutch law, these communications would
`not be discoverable for at least the following reasons.
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`First, Dutch courts do not provide for automatic discovery of the sort that would lead to the discovery
`of communications with Dutch Patent Attorneys. Meaning that Dutch law would protect these
`materials from discovery, regardless of whether a specific privilege were to apply.
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`Second, while the Dutch Code of Civil Procedure (“DCCP”) provides for a narrow and limited means
`to seek a court order demanding the production of documents, this procedure prohibits fishing
`expeditions and imposes strict requirements requiring that any demand be i) relevant to a legitimate
`interest, ii) tailored to specific documents, and iii) that those documents concern a legal relationship to
`which the demanding party is a party. Internal confidential communications of Phillips’s Dutch Patent
`Attorneys would never qualify for such relief, and Fitbit has no relevant legitimate interest in such
`communications nor the requisite legal relationship to them.
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`Third, Dutch law would additionally affirmatively prohibit the production of confidential
`communications with Dutch Patent Attorneys that fall within the scope of their work as Dutch Patent
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`Case 1:19-cv-11586-FDS Document 200-15 Filed 06/18/21 Page 3 of 4
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`Attorneys, which is broader that merely acting as “patent agents” who are involved in patent
`prosecution (a characterization Fitbit has repeatedly made without basis). For example, Article 843a
`(3) and (4) of the DCCP prohibits the production of confidential information that is confidential
`pursuant to one’s office, profession or position while Article 1019a (3) DCCP also imposes additional
`restrictions on the discovery of information.
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`What is more, under Dutch law, communications and work prepared for the purpose of one’s own
`litigation position and strategy are protected pursuant to the right to a fair trial under Article 6 of the
`European Convention on Human Rights. See, for example, Supreme Court 16 March 2018, NJ 2018/423,
`annotated by J. Legemaate.
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`Dutch patent attorneys, who are obliged under their “office, profession, or position” to keep
`confidential all that comes to their knowledge by virtue of their work as patent attorneys, are exempt
`from disclosing evidence through a claim under 843a (3) DCCP. A patent attorney’s duty of
`confidentiality is codified in Article 23b (4) of the Dutch Patent Act (“DPA”), which reads as follows:
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`Unless otherwise under or pursuant to the law, a patent attorney or an individual
`working under such attorney’s supervision, is obligated to observe confidentiality
`regarding all that of which the attorney becomes aware pursuant to his activities. This
`obligation remains in force after termination of the relevant activities.
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`Thus, all that come to a patent attorney’s knowledge pursuant to his activities is protected from
`disclosure, and the scope of a Dutch Patent Attorney’s work, knowledge, and confidentiality
`obligations goes beyond that of merely assisting with patent prosecution. This is clear from the
`legislative history of Article 23b (4) DPA which indicates that the legislature intended to align the duty
`of confidentiality with lawyers and patent attorneys internationally (including the U.S.):
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`[I]t is provided that patent attorneys have a duty of confidentiality with respect to what
`comes to their knowledge by virtue of their work. . . . [S]uch professional secrecy is
`customary internationally: both European patent attorneys and patent attorneys in the
`United States have such an obligation. If the obligation were not to apply to Dutch
`patent attorneys, they could, under certain circumstances, be forced to disclose business-
`sensitive data, for example in a lawsuit, while patent attorneys from other countries
`would be exempt from that obligation. (Explanatory Memorandum of Amendment,
`Parliamentary Documents (“Kamerstukken”) II 1999/2000, 27 193 (R 1658), no. 6.)
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`Commentators have also endorsed the understanding that Dutch Patent Attorneys are authorized to
`practice in a manner that is not limited to patent prosecution, but that provides for advising on patent
`related matters more generally, including litigation. For example, Kantas has referred to this legislative
`history and noted that “[f]rom this, it can be derived that the tasks of the patent attorney are considered
`broader than only assisting in drafting and filing a patent application.” Kantas, in: Lexplicatie,
`commentary on article 23b DPA. In a dissertation by Fernhout, a number of reasons were listed why the
`scope of activities of a patent attorney cannot be considered limited to assistance with patent
`applications. In particular, Fernhout stated the following:
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`It should be noted that Art. 23b paragraph 1 Patent Act 1995 does not limit acting as an
`attorney to representing the applicant. The words “of the applicant” were deleted from
`the provision after the acceptance of an amendment to that effect in order to make it
`clear that any person other than the applicant may also be represented at the office only
`by a patent attorney or lawyer. This means that the legislator sees the duties of the
`patent attorney as broader than just providing assistance with the patent application.
`(Fernhout, “The privilege of witnesses in civil cases” (In Dutch: “Het verschoningsrecht van
`getuigen in civiele zaken”), Kluwer R&P, no. 31 (2004), p. 228-229.)
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`The scope of a Dutch patent attorney’s activities also include appearing in a court of law to represent a
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`Case 1:19-cv-11586-FDS Document 200-15 Filed 06/18/21 Page 4 of 4
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`client in patent matters can be found in Article 82 of the DPA, which reads as follows:
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`Patent attorneys have the right to speak at hearings of disputes within the meaning of
`Article 80 [i.e., any kind of patent proceedings for which the District Court of the Hague
`is exclusively competent], without prejudice to the attorney-at-law’s responsibility.
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`According to commentators Van Dongen and Dack, this provision demonstrates that a Dutch patent
`attorney has an important role in patent infringement and invalidity proceedings. The patent attorney
`often provides further technical explanation to the court, whether in written form or orally. See Van
`Dongen/Dack, in: Geerts/Visser, Text & Commentary Intellectual Property (in Dutch: “Tekst & Commentaar
`Intellectuele Eigendom”), Deventer (Kluwer), 2016.
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`Because a Dutch patent attorney’s activities are broad, their duty of confidentiality is similarly broad,
`and any attempt to gain discovery into a Dutch Patent Attorney’s communications relating to the scope
`of his confidential work would be rejected under Dutch law.
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`Regards,
`
`-Ruben
`
`From: Rodrigues, Ruben J.
`Sent: Wednesday, May 19, 2021 4:42 PM
`To: Eric Speckhard <ESpeckhard@desmaraisllp.com>
`Cc: BOST - F - Philips - Fitbit <BOSTFPhilipsFitbit@foley.com>; Fitbit Philips DC Service
`<FitbitPhilipsDCService@desmaraisllp.com>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit - Scope of Review and Dr. Buy's contact information.
`
`Hi Eric,
`
` I
`
` don’t think we’ll be in a position to provide a full response by the end of this week, but we could agree to the
`end of next week and to extend the deadline for any motion concerning documents on the Tol privilege log to
`June 8th. Will that work?
`
`Regards,
`
`-Ruben
`
`From: Eric Speckhard <ESpeckhard@desmaraisllp.com>
`Sent: Tuesday, May 18, 2021 7:02 PM
`To: Rodrigues, Ruben J. <RRodrigues@foley.com>
`Cc: BOST - F - Philips - Fitbit <BOSTFPhilipsFitbit@foley.com>; Fitbit Philips DC Service
`<FitbitPhilipsDCService@desmaraisllp.com>
`Subject: RE: [EXTERNAL] Re: Philips v. Fitbit - Scope of Review and Dr. Buy's contact information.
`
`** EXTERNAL EMAIL MESSAGE **
`
`Hi Ruben,
`
`Thanks for meeting with us earlier today about Philips’s revised privilege log. As discussed, Fitbit has
`some remaining questions regarding the log. We generally divided the discussion into three categories:
`
`