Case 1:19-cv-11586-FDS Document 200-9 Filed 06/18/21 Page 1 of 3
`Case 1:19-cv-11586—FDS Document 200-9 Filed 06/18/21 Page 1 of 3
`
`EXHIBIT I
`
`EXHIBIT I
`
`

`

`Case 1:19-cv-11586-FDS Document 200-9 Filed 06/18/21 Page 2 of 3
`
`From:
`To:
`Cc:
`Subject:
`Date:
`
`RRodrigues@foley.com
`Peterman, Chad
`BOSTFPhilipsFitbit@foley.com; Philips - Fitbit
`[EXT] RE: [EXTERNAL] Re: Philips v. Fitbit - Scope of Review and Dr. Buy"s contact information.
`Tuesday, February 9, 2021 3:44:25 PM
`
`--- External Email: Do not open attachments or click links from unknown senders ---
`
`Hi Chad,
`
`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 the Cerian
`document production and make Mr. Sagi available for his deposition.
`
`That said, we have no intention of taking off calendar the depositions that are presently scheduled (Missan,
`Herkenman, and Park), nor would that be the purpose of the extension.
`
`Additionally, Fitbit remains deficient in its discovery responses. For example, Fitbit has repeatedly put off
`identifying whether or not it will be relying on any opinions of counsel in this case, avoided producing any
`such opinions, and avoided designating any witnesses on said opinions, on the basis that said discovery would
`be premature. It is inconceivable that such discovery could, at this point, be premature. Please confirm that
`Fitbit will not be relying on any opinions of counsel or, alternatively, produce said opinions and supporting
`materials, and supplement Fitbit’s response to interrogatory No. 3 accordingly. We need this confirmation and
`discovery prior to deposing Mr. Missan.
`
`Fitbit also has failed to produce information relating to its customer’s actual use of the accused products,
`while coaching its witnesses to gratuitously and repeatedly (though not credibly) disclaim knowledge with
`respect to what its customers do. Accordingly, and in view of Fitbit’s refusal to cooperate in discovery on this
`point, Philips demands that Fitbit make available for inspection all logs and user data from which Philips can
`determine the frequency of synchs between users’ devices and Fitbit’s servers, the information exchanged
`during said synchs, as well as user data reflecting cardio fitness scores for users and the underlying databases
`used to determine cardio fitness scores, and the information exchanged during said synchs. According to Mr.
`Boccon-Gibbod’s depositions, Fitbit maintains this sort of information in databases that are under its control,
`and this information would be responsive to at least RFPs Nos. 71, 72, 73, and 74, as well as Interrogatory No.
`9. Furthermore, Mr. Thompson sent a letter to Mr. Chaikovsky early in this case, on January 9th, 2020,
`demanding that such information be preserved and not destroyed.
`
`With regards to Mr. Tol, Mr. Tol was made available and already deposed both in his personal capacity and as
`a 30(b)(6) witness on a number of topics, and he will not be made available again. For the sake of
`convenience and for the purposes of limiting the number of deponents, Phillips also identified Mr. Tol for
`topic 11 concerning MIO. However, Fitbit elected not to question him, on topic 11 because certain Mio
`documents had been produced only the day before the deposition. That was Fitbit’s choice, and we will not
`be making Mr. Tol available again on that topic. Instead, Mr. Ridgeway will be further prepared and identified
`for Topic 11.
`
`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
`
`

`

`Case 1:19-cv-11586-FDS Document 200-9 Filed 06/18/21 Page 3 of 3
`
`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,
`
`-Ruben
`
`From: Peterman, Chad <chadpeterman@paulhastings.com>
`Sent: Friday, February 5, 2021 4:19 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 –
`
`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:
`
`
`(1) The depositions of James Park and Andy Missan should go on as scheduled. Mr. Park is
`designated for 30(b)(6) Topics 6, 7, and 15. Mr. Missan is not designated for any topics. The
`deposition of Arie Tol will also continue as scheduled. Please make sure Mr. Tol is prepared to
`testify on his 30(b)(6) topics in light of Philips’ revised initial damages disclosures.
`
`(2) The deposition of Buddy Herkenham should go on as scheduled on February 17. He will be
`designated for Topics 1 for certain factual bases; 5 as to noninfringing alternatives; 21, 22, 26, 27,
`and 28 with respect to firmware on the accused products; and 35 and 38 as to technical
`documentation for topics on which Mr. Herkenham is designated. To the extent Philips wants to
`use source code with Mr. Herkenham, it has sufficient time to review in advance of his deposition.
`
`
`(3) We are amenable to allowing Dr. Buy to continue to access the source code until the end of
`March.
`
`