Case 1:19-cv-11586-FDS Document 217 Filed 08/03/21 Page 1 of 4
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`PHILIPS NORTH AMERICA LLC,
`
`v.
`
`FITBIT, INC.,
`
`Plaintiff,
`
`Defendant.
`
`Civil Action No. 1:19-cv-11586-FDS
`
`
`
`
`PLAINTIFF’S ASSENTED TO MOTION FOR LEAVE TO FILE A SUR-REPLY TO
`FITBIT, INC.’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL THE
`PRODUCTION OF CERTAIN OF MR. ARIE TOL’S EMAIL COMMUNICATIONS
`(DKT. NO. 213)
`
`
`
`

`

`Case 1:19-cv-11586-FDS Document 217 Filed 08/03/21 Page 2 of 4
`
`
`
`Pursuant to Local Rule 7.1(b)(3), Plaintiff Philips North America LLC (“Philips”) through
`
`its counsel hereby respectfully requests leave to file a sur-reply brief of no more than six (6) pages
`
`and a rebuttal declaration of no more than ten (10) pages1 in order to respond to certain arguments
`
`and evidence raised in Fitbit, Inc.’s (“Fitbit”) Reply In Support of Its Motion to Compel the
`
`Production of Certain of Mr. Arie Tol’s Email Communications (“Reply”). (Dkt. No. 213.)
`
`Counsel for Philips has met and conferred with counsel for Fitbit and Fitbit does not oppose this
`
`motion. Per the agreements of the parties, Philips’s sur-reply will specifically address the
`
`following:
`
`• Generally, a response to Mr. Gerritzen’s declaration (Dkt. 214-1) not
`included in Fitbit’s original motion and the arguments made and positions
`taken therein.
`• Response to arguments concerning “professional charter” registration
`under Dutch Law.
`• Response to arguments premised on Dutch cases not raised in the original
`Motion (such as In re X/Stichting, Rechtbank, Shell et. al.).
`• Response to arguments premised on U.S. Cases not raised in the original
`Motion (such as Align Tech, Anwar, Cadence Pharms).
`
`Philips has narrowly tailored its requested relief to seek leave to file a brief sur-reply of no
`
`more than six (6) pages, and an supplemental expert declaration on Dutch law of no more than ten
`
`(10) pages (using similar formatting to the original expert declaration that Philips submitted at Dkt.
`
`210-4), which Philips reasonably believes to be as short as possible to address the arguments and
`
`evidence that Philips believes was raised for the first time in Fitbit’s Reply. It should be noted,
`
`however, that Fitbit disagrees that its reply brief and supporting declaration raise any issues that
`
`
`1 For this declaration, Philips would use the same format and spacing used in Professor Hoyng’s
`
`original declaration (Dkt. No. 210-4) and Mr. Gerritzen’s declaration (Dkt. No. 214-1).
`
`
`
`1
`
`

`

`Case 1:19-cv-11586-FDS Document 217 Filed 08/03/21 Page 3 of 4
`
`
`
`should have been in Fitbit’s opening papers, notwithstanding its agreement to Philips’s requested
`
`relief.
`
`WHEREFORE, Philips hereby respectfully requests leave of this Honorable Court to file
`
`a sur-reply brief of no more than six (6) pages along with a supporting declaration of no more than
`
`ten (10) pages by no later than August 11, 2021.
`
`
`
`
`
`Dated: August 3, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
` /s/ Ruben J. Rodrigues
`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
`
`
`
`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
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Plaintiff
` Philips North America LLC
`
`2
`
`
`

`

`
`
`
`
`Case 1:19-cv-11586-FDS Document 217 Filed 08/03/21 Page 4 of 4
`
`LOCAL RULE 7.1(a)(2) STATEMENT
`
`
`Pursuant to Local Rule 7.1(a)(2), Plaintiff’s counsel hereby certifies that on August 3, 2021
`
`in good faith conferred with Counsel for Defendant in an effort to resolve or narrow the issues
`
`presented in this motion, and that Fitbit has no opposition to Plaintiff’s request for leave to file a
`
`sur-reply brief in accordance with the foregoing motion.
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on August 3, 2021 a copy of the foregoing document
`
`was filed with the Court through the ECF system and that a copy will be electronically served on
`
`registered participants as identified on the Notice of Electronic Filing.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Ruben J. Rodrigues
`
` Ruben J. Rodrigues
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`