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`Case 1:19-cv-11586-FDS Document 220-1 Filed 08/11/21 Page1of 11
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:19-cv-11586-FDS Document 220-1 Filed 08/11/21 Page 2 of 11
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`DECLARATION
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`I, Willem A. Hoyng, state as follows:
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`Introduction
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`1.
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`2.
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`I read the declaration of Mr. Gerritzen and noted that he does not seem to dispute what I
`have stated, but only provides certain nuances to what I have stated.
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`However, I have to conclude that in providing certain nuances, Mr. Gerritzen makes some
`obvious mistakes, which I will touch upon below. Below, I refer to Fitbit’s Reply In Support
`Of Its Motion To Compel The Production Of Certain Of Mr. Arie Tol’s Email
`Communications as the “Reply” and to Mr. Gerritzen’s declaration as the “Fitbit
`declaration”.
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` General remarks
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`3.
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`4.
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`5.
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`The Fitbit declaration agrees with me that the Dutch legal system does not allow for pre-
`trial discovery of documents or “fishing expeditions”. The Dutch system of civil
`proceedings is based on an adversarial system, as becomes clear from Article 24 DCCP.
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`The Fitbit declaration elaborates rather extensively on Articles 21-24 of the DCCP. While I
`discussed these articles in my first declaration to provide background information, these
`provisions do not have direct relevance for the dispute at hand. I do note that the
`obligation of truth in Article 21 DCCP only leads to an obligation to spontaneously provide
`unfavourable information if, without such information, the information which a party
`chooses to provide would be untruthful. However, as I stated in my opinion, a party is free
`to choose which information is provided to the court. That information has to be truthful.
`This illustrates that generally there is a much narrower selection of documents relevant to
`Dutch court proceedings than in court proceedings in the United States.
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`As I have stated, under Dutch law no (statutory) confidentiality obligation is absolute (see
`paragraphs 17 and 41 of my first declaration). However, the Telegraaf case relates to very
`specific circumstances and is certainly not to be compared with the case at hand. In these
`proceedings, the State refused to provide information regarding the exercise of special
`powers by the Dutch Secret Service against journalists that had published articles on state
`secrets. This decision does not relate to individuals invoking privilege on the basis of a
`duty of confidentiality pursuant to their office, profession or position within the meaning of
`Article 843a (3) DCCP (or an indirect reliance on this by the client consulting the person
`entitled to privilege on the basis of Article 843a (4) DCCP). In the latter cases, according
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`6.
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`7.
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`Case 1:19-cv-11586-FDS Document 220-1 Filed 08/11/21 Page 3 of 11
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`to Supreme Court case law, only in “highly exceptional circumstances” privilege can be
`outweighed by the interest in finding the truth (see also below in paragraph 33 et seq.
`below). In the present case, no such circumstances apply, as it seems to me that Fitbit
`only has a private interest in obtaining information from documents of which it does not
`know the contents, hoping to find something useful. The implied suggestion that the
`situation in the Telegraaf case would be comparable to the situation at hand is incorrect.
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`In paragraph 3.4, the Fitbit declaration states that according to the District Court The
`Hague, Article 1019a DCCP would not be applicable to potential infringement of a US
`patent. Although I do not agree with this decision, as it seems to amount to a
`discriminatory treatment which seems contrary to the Paris Convention and the TRIPS
`Agreement1, this is equally unimportant for the case at hand. As I explained in my opinion,
`I do not think that there is a fundamental difference between Articles 843 (4) and 1019a
`(3) DCCP and, if there is a difference, it is clear that Article 843 (4) DCCP would be more
`strict in the sense that it would, if applicable to the case at hand, offer more grounds to
`refuse production and thus make Fitbit’s position to obtain documents even more difficult.
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`The suggestion that I would have stated that Article 843a DCCP is only rarely used (in
`paragraph 3.5 of the Fitbit declaration) misses the point. My statement clearly referred to
`the measures stated under 10 of my first declaration (not discussed in the Fitbit
`declaration). In my practice of almost 50 years of patent litigation, I have come across
`these measures extremely seldomly. While Article 843a DCCP is used more frequently,
`the point is that, because of the strict requirements that need to be satisfied in order to
`obtain access to documents, this instrument cannot be compared with US pre-trial
`discovery (see Chapter IV of my first declaration).
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` Remarks of Fitbit’s declaration with respect to IV of my first declaration
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`8.
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`9.
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`I explained in Chapter IV of my first declaration that, if Dutch law were applicable to Fitbit’s
`claim, in view of the strict requirements of Article 843a DCCP, Fitbit’s claim would most
`likely be rejected already for not satisfying the three cumulative requirements of Article
`843a (1) DCCP.
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`I note Fitbit’s declaration agrees with the fact that there are three separate requirements to
`be fulfilled, i.e. “legitimate interest” (Fitbit’s declaration, paragraph 4.3), “specific
`documents” (Fitbit’s declaration, paragraph 4.7) and “legal relationship” (Fitbit’s
`declaration, paragraph 4.4). I do also note that Fitbit’s declaration in fact does not dispute
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` Article 2.1 of the Paris Convention for the Protection of Industrial Property and Article 2 of the TRIPs Agreement.
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`10.
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`11.
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`12.
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`my reasoned opinion that a Dutch Court would refuse a claim for the Communication to be
`produced.
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`In paragraph 4.3, the Fitbit declaration advocates a broad interpretation of “legal
`relationship”. It may be true that any kind of legal relationship could qualify as a legal
`relationship, but as the Fitbit declaration correctly notes, the existence thereof should be
`made sufficiently plausible. Whether or not it is the plaintiff seeking access to the
`documents, is not decisive in this respect (see e.g. my discussion of Sisvel/Acer in
`paragraph 31 of my first declaration). What matters is that the party seeking access shows
`that the documents are relevant to a certain legal relationship which it has made
`sufficiently plausible.
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`In paragraph 4.5, the Fitbit declaration basically argues that Fitbit does not have to fulfil
`the requirements of Article 843a DCCP, because not Dutch law but US law governs
`Fitbit’s request. Which law is applicable is a question of US (private international) law, on
`which point I have not commented. My only conclusion is that if Dutch law would be
`applicable with respect to these documents (which as I understand are generated and
`kept in the Netherlands) a request for production would in my opinion not be honoured.
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`In this context I find support for my opinion in the reservations of the Netherlands in the
`Hague Convention of Evidence (“Haags Bewijsverdrag”) as discussed in Exhibit 3 to the
`Fitbit declaration. Pursuant to Article 23, the Netherlands has declared that it will not
`execute Letters of Request issued for the purpose of obtaining pre-trial discovery of
`documents as known in Common Law countries.
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`13. Finally, with respect to the requirement of “specified documents”, Fitbit’s declaration in
`paragraph 4.7 refers to the case X/Theodoor Gilissen. Fitbit is correct in not arguing that
`this case can be compared with the case at hand, in which Fitbit seeks, as I understand,
`basically all documents in Philips' possession relating to patent infringement litigation
`against Fitbit, virtually without any limitation.
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` Remarks of Fitbit’s declaration with respect to V.2 of my first declaration
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`IV.1. Fitbit’s declaration ignores the enactment of Article 23b DPA and legislative history
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`14.
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`In Chapter V.2 of my declaration, I expressed the opinion that in the case at hand the
`communications between Mr. Tol and Philips would be privileged under Dutch law. In the
`discussion thereof in section 5 of Fitbit’s declaration, Fitbit’s declaration seems to
`conveniently ignore the introduction of Article 23b DPA (including the legislative history on
`this point) and the implications thereof.
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`15. Although Articles 165 (2) and 843a (3) DCCP indeed do not specify the exact group of
`people or professions to which legal privilege applies, it is incorrect that one has to rely on
`the case law of the Supreme Court or lower court case law in the absence thereof.
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`16. Dutch law is first and foremost based on statutory law, which is interpreted by the courts
`on the basis of various interpretation methods, such as grammatical, legislative and
`teleological interpretation. It is correct that in the end, the interpretation of the Supreme
`Court will be followed by the lower courts, but even with respect to Supreme Court case
`law there is no formal obligation on the lower courts to do so.2 Moreover, it is incorrect
`that, as a rule, lower court decisions will be followed by other lower courts. In many
`instances in the Netherlands lower courts have disagreed with each other. According to
`Teuben, Supreme Court lawyer and former researcher at the University of Leiden, any
`binding force at the “horizontal” level, between different judges of equal rank, cannot be
`inferred from case law.3
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`17.
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`It is correct that the Supreme Court has not explicitly ruled on the question whether or not
`a patent attorney would be awarded legal privilege, simply because that question has
`never been brought before the Supreme Court. However, it is not very likely that such
`case will ever be brought before the Supreme Court, as it is unmistakably clear from the
`legislative history that the legislator intended, with the introduction in 2003 of Article 23b(4)
`DPA4, to award legal privilege to the patent attorney and to end controversy about this
`question, also in relation to foreign litigation.
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`18.
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`In paragraph 5.7, Fitbit’s declaration tries to restrict the meaning of Article 23b(4) DPA to
`the privilege of European Patent Attorneys before the European Patent Office (“EPO”)
`based on the fact that the legislative history states that “such professional secrecy is
`customary internationally: both European patent attorneys and patent attorneys in the
`United States have such obligation.”
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`19. This is incorrect. “European” in this sentence, in my opinion, refers to the patent attorneys
`in the various European countries. Moreover, Fitbit’s opinion also ignores (when
`describing the privilege of patent attorneys admitted to the EPO) that the European Patent
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` See e.g. WvSv, A.L. Melai/M.S. Groenhuijsen e.a., Article 440 of the Code of Criminal Procedure, note 10.4
`(Exhibit A): “It should be borne in mind that we have no law of precedent in the Netherlands. The Supreme Court
`is not bound by its own jurisprudence - it can “switch” for reasons of its own - nor is the lower court bound by the
`decisions of higher courts, including the Supreme Court.”
`3 K. Teuben, “Rechtersregelingen in het burgerlijk (proces)recht” (in English: “Court rules in civil (procedural) law”)
`BPP nr. II, 2004/7.5.2.2 (Exhibit B).
`4 Fitbit’s declaration suggests that Philips’ translation of Article 23(b)(4) is not correct. I do not agree. It is crystal
`clear from that translation that the obligation is restricted to the activities as a patent attorney.
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`Convention (“EPC”) is an international instrument which cannot convey more privilege
`than what is necessary for the precise work of the patent attorney in the EPO, i.e.
`obtaining European patents through the European application procedure.5 For work
`beyond that scope (such as licensing negotiations) the national law of the patent attorney
`will be applicable.
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`20. Fitbit’s declaration does not dispute what I stated in paragraphs 48 to 56 of my first
`declaration, from which I conclude that the work of a patent attorney encompasses much
`more than simply applying for patents. Fitbit’s declaration also completely ignores the fact
`that the legislative history of Article 23b(4) DPA about the fact that the goal is to prevent
`the patent attorney being forced to disclose “business sensitive” data which is clearly not a
`restriction to facts with respect to the application of patents.
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`21.
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`In paragraphs 5.8 - 5.11, Fitbit’s declaration refers to Bruil/Titan International of the District
`Court of Zutphen of 5 January 1988. I commented on that first instance decision in
`paragraphs 54 and 55 of my first declaration. It is very clear that that decision cannot carry
`any weight, as it was based on the text of the patent attorney’s oath in the 1936 Patent
`Agents Rules (interpreted in light of the rest of those rules). These rules were declared
`inapplicable and thus lost their relevance with the introduction of (inter alia) Article 23b(4)
`of the Dutch Patent Act (see my first declaration under 47 and 48). Bruil/Titan International
`already for that reason alone cannot form a relevant precedent (regardless of the other
`points made in my first declaration and the points made above).
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`22. The District Court of Zutphen (which is not experienced in patent cases) stated (i) that the
`oath as formulated in these rules did not constitute a right and (ii) that privilege did not go
`beyond the assistance in an application for the patent attorneys. Regarding point (i), in the
`meantime the privilege is now stated in the law, which in combination with the provisions
`in the Dutch Code of Civil Procedure does constitute a right. Regarding point (ii), even at
`the time this was, according to scholars like Vranken6, an incorrect decision in view of the
`rules that were applicable at the time.
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`23. However, nowadays the 1936 Patent Agent Rules are no longer in force but are replaced
`by (inter alia) Article 23b DPA. The legislature clearly did not want to restrict the privilege
`to assistance with patent application, as the scope of work of patent attorneys nowadays
`stretches much further than that, including representing clients in legal proceedings with
`respect to patents.
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` As noted in footnote 22 of my first declaration, the EPC governs, among other things, the grant of European
`patents (which is, strictly speaking, a bundle of national patents).
`6 See paragraph 52 of my first declaration.
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`24.
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`It is clear that the legal scholars cited in my first declaration also draw the conclusion
`based on the enactment of Article 23b (4) DPA and legislative history, that the work of a
`patent attorney – and consequently also the scope of his privilege – is broader than just
`providing assistance with patent prosecution. Fitbit’s declaration denies that the patent
`attorney’s activities extends to this broader scope of work (see paragraph 5.11), but
`strikingly fails to mention any scholar who (or legislative history that) supports Fitbit’s
`interpretation. As follows from my explanations above, ignoring the introduction of Article
`23b DPA and the legislative history and instead relying on old case law interpreting legal
`provisions that are no longer in force, is fundamentally incorrect.
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`25. Moreover, Fitbit’s declaration is also silent to the fact that nowadays Article 82 DPA
`specifically allows Dutch patent attorneys to argue before the District Court The Hague
`(exclusively competent in patent matters) in all types of patent proceedings (infringement,
`invalidity, compulsory licensing, entitlement etc.), which clearly shows that the privilege is
`not restricted to prosecution of patents. In practice, this may entail that a patent attorney
`basically runs the whole litigation by himself, merely seeking assistance of an attorney-at-
`law for procedural formalities (such as issuing the writ of summons drafted by the patent
`attorney and filing the exhibits with the court), but carrying out the whole oral part of the
`proceedings by himself. In preliminary injunction proceedings in first instance, the patent
`attorney can even assist the defendant completely on his own without such formal
`assistance of an attorney-at-law. Similarly, under the rules of the future Unified Patent
`Court7, patent attorneys who obtained a litigation certificate are entitled to conduct court
`proceedings on their own.
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`IV.2. Professional charter for attorneys-at-law irrelevant
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`26. Section 6 of the Fitbit declaration refers to the professional charter for attorneys-at-law.
`According to Fitbit’s declaration, it could reasonably be argued that this should also apply
`to Mr. Tol as a patent attorney. This is, in my view, incorrect and Fitbit’s declaration fails to
`refer to any statement of the Dutch Patent Attorney Bar – or any other source for that
`matter – which would indicate that this is the case.
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`27. This is also understandable, as since the creation of the profession of Dutch Patent
`Attorney (with the Dutch Patent Act of 1910), a significant share of the patent attorneys in
`the Netherlands have been employed by corporations and their independence has never
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` The Unified Patent Court will deal with Unitary patents and European patent, altogether in one case for all
`countries that are party to the Unified Patent Court Agreement, which has now been ratified by 15 countries.
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`given rise to any problems. In the Netherlands there are only 5108 patent attorneys
`(compared to around 18.0009 attorneys-at-law) that are all are bound by oath to Article 1
`(c) of the Code of Conduct cited in 6.4 of Fitbit’s declaration which assures their
`independence.
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`28. Traditionally, in the Netherlands, attorneys-at-law worked in private practice. The
`requirement of “independence” of attorneys-at-law assumed that there is no relationship of
`employment between the attorney-at-law and his client. In 1939, the Supreme Court
`expressed that the construction of attorneys-at-law being employed by a regular
`corporation, i.e. being admitted to the Bar and working inhouse at the same time, would
`be tolerated. Since the 1970’s however, attorneys-at-law employed by corporations in the
`Netherlands were made subject to severe restrictions that put them on equal footing with
`“regular” in-house lawyers (not admitted to the Bar), in that they were not allowed to
`present themselves as attorneys-at-law externally. Members of the Bar in private practice
`were the only persons allowed to carry out legal proceedings. In 1996, under pressure of
`banks, insurance companies and larger corporations with legal departments that wanted
`some of their lawyers being able to conduct court proceedings, the Bar has under strict
`conditions allowed in-house lawyers employed by corporations to conduct court
`proceedings and the like. In order to stress the core value of independence, the
`requirement of a professional statute was introduced as a condition to be able to carry out
`a practice as an attorney-at-law while being employed by a corporation.10 This is intended
`to avoid misuse of the possibility to become a member of the Bar while being employed by
`a corporation and is explicitly laid down in the Regulation of the Legal Profession.
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`29. Such misuse could happen on part of the employer if the attorney-at-law, as a member of
`the Bar, would be of the opinion that a certain case should not be brought before the
`Court, but his employer orders him to do so anyway. The attorney-at-law may then comply
`out of fear for his employment or career opportunities.
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`30. Said Regulation of the Legal Profession applies to attorneys-at-law only and does not
`apply to patent attorneys. Moreover, as stated, it has never been argued by anybody that
`such professional charter should also be required for patent attorneys, in order for them to
`be allowed to invoke privilege. The patent attorney is bound to the professional ethical
`rules in the Code of Conduct and since 1910 there has never been a problem with his
`
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`https://www.rvo.nl/onderwerpen/innovatief-ondernemen/octrooien/octrooien-aanvragen/in-
` See
`nederland/octrooigemachtigde.
`9 See https://www.advocatenorde.nl/nieuws/lichte-krimp-in-meerderheid-arrondissementen.
`10 See also Report of the Committee ‘Wat is een advocaat?’, “Dit is een advocaat”, The Hague, October 2013
`(Exhibit C), also available at https://www.advocatenorde.nl/document/rapport-dit-is-een-advocaat-oktober-2013.
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`independence (currently Rule 1 (c) of the Code of Conduct) or in any other way not being
`able to adhere to his professional rules (such as the rule not to give false or misleading
`statements) when employed by a company. A requirement of a professional statute would
`moreover clearly be in conflict with the statutory provision of Article 23b (4) DPA, which
`was adopted at a time that several patent attorneys were employed by corporations.
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`IV.3. Legal entities can rely on the privileged nature of information as ‘serious reason’
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`31.
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`In section 7 of Fitbit’s declaration, Fitbit argues that if the communications of Mr. Tol are
`privileged, Philips would not be entitled to rely on that to refuse the production of the
`requested documents. I disagree. To the extent there would be a balancing of interests, it
`would be in Philips’ favor.
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`32. As I mentioned above, the statutory provision in Article 23b(4) DPA was especially
`introduced to make sure that the patent attorney did not have to reveal any business
`secrets of his client. The importance of this provision is clear, as it makes sure that
`everything surrounding the work of the patent attorney will remain secret, which is also
`important for the public interest as it contributes to promoting innovation as much as
`possible (which in the Netherlands has a high priority).
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`33.
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`It is very clear that, if Philips cannot rely on Mr. Tol’s privilege in order to refuse disclosure,
`the whole objective cited by the legislator when introducing Article 23b (4) DPA would be
`mute. Philips, when hiring Mr. Tol as a patent attorney, could and did expect that its
`communication with him would remain secret. As I noted in my first statement, it is
`certainly true that privilege and being able to rely on privilege is not absolute. However,
`according to Supreme Court case law, only in “highly exceptional circumstances” this
`privilege can be outweighed by the interest in finding the truth.11 The Advocate General
`notes the highly exceptional character of such circumstances in his opinion before
`Onderzoekers/SNS Reaal c.s., citing Woudenberg, attorney-at-law and former member of
`the scientific desk of the Supreme Court:12
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`11 Supreme Court 1 March 1985, ECLI:NL:HR:1985:AC9066, NJ 1986, 173 (“Notary Maas”), annotated by W.L.
`Haardt, par. 3.6, of which an excerpt was previously submitted as Exhibit T with my first declaration, now
`submitted in full (Exhibit D). See also e.g. Supreme Court 14 June 2005, ECLI:NL:HR:2005:AT4418, NJ 2005,
`353, par. 4.4 (Exhibit E) and, for a recent application thereof, District Court North-Netherlands 27 January 2021,
`ECLI:NL:RBNNE:2021:341, pars. 5.39 – 5.51 (Exhibit F). I have seen such “highly exceptional circumstances”
`only in criminal cases where e.g. the attorney-at-law committed a crime or in malpractice cases where a medical
`professional made a mistake and tries to hide behind his privilege.
`12 Opinion Advocate General Timmerman
`in Supreme Court 3 April 2020, ECLI:NL:PHR:2020:14
`(Onderzoekers/SNS Reaal c.s.) (Exhibit G).
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`“In the Notaris Maas decision, the Dutch Supreme Court kept its options open by finding that
`“very exceptional circumstances” can occur in which the interest in uncovering the truth must
`take precedence over attorney-client privilege.182 The Dutch Supreme Court exercises
`restraint in assuming these “very exceptional circumstance” (see also para. 2.23 above).183
`In that context, A-G Leijten noted in an opinion “that exceptional circumstances are rare, so
`that very exceptional circumstances are difficult to imagine for ordinary people.”184
`Nonetheless, very exceptional circumstances
`tend
`to multiply.185 Very exceptional
`circumstances have been assumed in some criminal cases. According to the Dutch Supreme
`Court, it is not possible to summarize, in terms of a general rule, the answer to the question
`of which circumstances should be classified as very exceptional.186 According to the Dutch
`Supreme Court, the position that such circumstances, and consequently an exception to the
`main rule regarding legal privilege, exist is subject to stringent requirements to give
`reasons.187 The literature does not rule out that “very exceptional interests” can also occur in
`civil cases:
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`“Evidently, attorney-client privilege is only set aside in the event of circumstances that
`may have serious implications for society; that can also be the situation in civil cases, but
`is more likely to be the case in criminal proceedings. An individual, financial interest does
`not, in any event, carry sufficient weight. The interest in uncovering the truth may only
`take precedence over the public interests served by attorney-client privilege if public
`interests are involved.”188”
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`34.
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`In the subsequent Supreme Court ruling in Onderzoekers/SNS Reaal c.s.13, the Supreme
`Court explicitly confirmed that the confidentiality of the information exchanged with the
`person entitled to privilege may constitute a valid reason for the entity to refuse to provide
`access to the documents. In an attempt to suggest that Philips should argue in detail why
`the documents are privileged and a balancing of interests should be in Philips’ favor, the
`Fitbit declaration cites selectively from that ruling. It has omitted elements of paragraph
`3.4.114 from which elements it appears that this paragraph deals with the situation of
`exchange of confidential information without the person entitled to privilege having
`invoked his privilege with respect to such information. It has also omitted the reference in
`that paragraph to paragraph 3.2.4 of that same ruling, which reads as follows (see Exhibit
`BB to my first declaration):
`
`“3.2.4 The assessment of whether books, documents or other data carriers are subject to
`attorney-client privilege is, in principle, for the attorney or civil-law notary entitled to privilege
`to make. If they take the view that the information in question is information which, if
`
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`13 Supreme Court 3 April 2020, ECLI:NL:HR:2020:600, NJ 2021/104 annotated by M.A. Verbrugh
`(Onderzoekers/SNS Reaal c.s.) (Exhibit BB to my first declaration).
`14 The Fitbit declaration incorrectly refers to “3.3.4” instead of “3.4.1”. See for a full translation of this paragraph
`Exhibit 2.BB to my first declaration.
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`th
`disclosed without revealing what should remain concealed.7 Insofar as is necessary for
`ins
`f the relevant documents.
`assessment, the examining justice may take cognizance 0
`It is therefore up to the patent attorney to indicate whether documents are privileged, and
`if he does, that has to be respected, unless there is no reasonable doubt that the view is
`incorrect (see also paragraph 46 of myfirst declaration). | understand thatin the present.
`case, Mr. Tol has also himself taken the position that the documents contain privileged
`information. The present case therefore is not a situation to which paragraph3.4.1 of
`Onderzoekers/SNS Reaal c.s. applies, although also this paragraph confirms that the
`interest of being able to consult a patent attorney without fear of disclosure of whatis
`entrusted to him in his capacity,
`in principle results in a serious reason to refuse
`production of evidence underArticle 843a (4) DCCP.
`:
`|
`
`| have seen no reason whyin this case Fitbit's interest in obtaining the documents asked
`for would outweigh the public and individual interest that communication with a patent
`attorney should remain confidential. Fitbit fails for instance already to explain whatit wants
`to prove, why the documents will contain evidence thereof, why such evidence cannot be
`established in a way respecting the patent attorney's privilege and whyits (private)
`ore aon Philips’ intarest (which is based on both a public and an individual
`ewe » . " in view of the high threshold of “highly exceptional circumstances”,
`in m
`ighly unlikely that any balancing ofinterests would bein Fitbit’s favor.
`|
`”
`For all these reasons| remain of th
`e opinion that under Dutch law the communications
`between Mr. Tol and Philips are pri
`Vileged and that Philips would not be required to hand
`over the documents asked for.
`
`35.
`
`36.
`
`37,
`
`
`
`