Case 1:19-cv-11586-FDS Document 233-1 Filed 09/07/21 Page 1 of 3
`Case 1:19-cv-11586-FDS Document 233-1 Filed 09/07/21 Page1of3
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`EXHIBIT A
`EXHIBIT A
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`Case 1:19-cv-11586-FDS Document 233-1 Filed 09/07/21 Page 2 of 3
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`From:
`Sent:
`To:
`Cc:
`Subject:
`
`Rodrigues, Ruben J. <RRodrigues@foley.com>
`Friday, September 3, 2021 10:21 AM
`Eric Speckhard; Custer, John W.
`BOST - F - Philips - Fitbit; Fitbit Philips DC Service
`[Ext] RE: Philips v. Fitbit - June 11, 2021 Supplemental Privilege Log
`
`**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,
`
`We recall from the hearing that Magistrate Judge Dein instructed Fitbit to reconsider some of its unreasonable demands
`for production of documents that involved the legal advice of Philips’s U.S. Attorneys. There was no suggestion that the
`declaration of Arie Tol was somehow deficient with respect to the below identified documents, or that further
`information from Philips was necessary. Philips has repeatedly sought to provide more detail with regards to its various
`privilege claims over the past few months in response to Fitbit’s request for the same and in the hopes of narrowing this
`dispute, yet in the briefing before Judge Dein Fitbit spun those efforts as somehow necessitating in camera review and
`Philips is not inclined to provide yet another declaration that Fitbit would likely only use as pretext to argue some form
`of inconsistency as it has in the past.
`
`That said, in light of your message below, we have taken another look at the identified e-mails in view of Mr. Tol’s
`declaration and can confirm that we believe that Mr. Tol’s declaration accurately and sufficiently describes the nature of
`the communications sufficient to enable Fitbit to assess Philips’s claim in accordance with Rule 26(b)(5), including with
`respect to the involvement of U.S. Attorneys on said communications.
`
`With respect to entry nos. 19-21, 24, 30-31, 35-37, 42-43, 46-47, 60-64, 71-73, and consistent with Mr. Tol’s declaration,
`we would stress and confirm that Mr. Schilowitz was already involved in advising Mr. Tol and Mr. Pastink with regards to
`providing Fitbit with notice of infringement prior to Entry No. 19.
`
`With respect to entry nos. 244-248, and as consistent with Mr. Tol’s declaration, we would stress that Mr. Blocker was
`included on this series of messages from the very beginning, and would otherwise refer you to Mr. Tol’s declaration with
`regards to these messages.
`
`With respect to 299-301, 408, 412-420, 422-23, 425-31, 437-38, 440-41, 443, 450-51, 458-60, 463-64, as stressed and
`confirmed in Mr. Tol’s declaration, these communications all relate to Lifescan’s breach and the settlement of that
`dispute, and not what Fitbit purports to characterize as some form of separate “renegotiation” of the Lifescan license.
`
`Regards,
`
`-Ruben
`
`From: Eric Speckhard <ESpeckhard@desmaraisllp.com>
`Sent: Tuesday, August 31, 2021 6:12 PM
`To: Custer, John W. <jcuster@foley.com>; Rodrigues, Ruben J. <RRodrigues@foley.com>
`Cc: BOST - F - Philips - Fitbit <BOSTFPhilipsFitbit@foley.com>; Fitbit Philips DC Service
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`Case 1:19-cv-11586-FDS Document 233-1 Filed 09/07/21 Page 3 of 3
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`<FitbitPhilipsDCService@desmaraisllp.com>
`Subject: RE: Philips v. Fitbit - June 11, 2021 Supplemental Privilege Log
`
`** EXTERNAL EMAIL MESSAGE **
`
`
`Hi Ruben,
`
`
`You may recall that during the August 24 hearing, Magistrate Judge Dein requested that the parties further consider
`their positions regarding Fitbit’s motion to compel Arie Tol’s emails. Given the additional information that Philips did
`not include in its privilege logs, but instead provided for the first time in Arie Tol’s declaration attached to Philips’s
`opposition, we have a few follow up questions regarding Mr. Tol’s declaration.
`
`
`Entries 19-21, 24, 30-31, 35-37, 42-43, 46-47, 60-64, 71-73, discussed in paragraphs 18, 19, 21, 22, 23, 26, 29, and 30 of
`Mr. Tol’s declaration, generally relate to the drafting of Philips’s October 2016 letter to Fitbit. Mr. Tol generally
`describes that these communications were made in furtherance of seeking Elias Schilowitz’s legal advice. However, in
`contrast to, for example, entry 299—where Mr. Tol describes that Ed Blocker’s alleged legal advice was sought regarding
`a license dispute and a potential breach of contract claim—Mr. Tol does not provide any detail regarding the legal issue
`on which advice was sought from Mr. Schilowitz regarding the October 2016 letter. For example, do these entries seek
`Mr. Schilowitz’s legal advice on the strength of Philips’s infringement allegation in the letter; or the potential validity of
`the patents enumerated in the letter; or some other issue? Further, do these entries exclusively seek or contain the
`alleged legal advice such that they must be withheld entirely rather than redacted? To be clear, we aren’t asking for the
`substance of the alleged advice at this point, merely the legal issue on which advice was sought, which will allow us to
`fully assess the claim of privilege.
`
`
`Additionally, at the time the communications in these entries were made between Philips’s Dutch Patent Attorneys—
`i.e., Arie Tol, Erik Pastink, and Jako Eleveld—did these Dutch Patent Attorneys know that they were communicating for
`the purpose of seeking legal advice from Mr. Schilowitz? Or was it only later decided that these communications would
`be used to seek Mr. Schilowitz’s legal advice? Similarly with respect to entries 244-248—at the time that Mr. Tol made
`these communications, was he communicating for the purpose of seeking legal advice from Mr. Blocker? Or was it only
`later decided that these communications would be used to seek Mr. Blocker’s legal advice?
`
`
`Entries 299-301, 408, 412-420, 422-23, 425-31, 437-38, 440-41, 443, 450-51, 458-60, 463-64, discussed in paragraphs
`37, 38, 41, 42, and 43 of Mr. Tol’s declaration, generally relate to Philips’s license dispute and renegotiation with
`Lifescan. Do these entries exclusively relate to Lifescan’s alleged breach of the original license and a potential litigation
`regarding that breach, or do these communications also include discussions regarding the renegotiation of the license?
`Can you confirm these communications contain no discussions regarding (a) the business terms of the renegotiation of
`the license, or (b) how to characterize or compute the payments to be received under the revised agreement?
`
`
`Philips has already amended its logs numerous times, and too much time has passed while the parties tried to resolve
`this dispute. Therefore, we propose that Philips provide this requested information by 5pm ET on Friday, September 3,
`2021 in the form of a declaration sworn under penalty of perjury under U.S. law and signed by either Mr. Tol or one of
`Philips’s outside U.S. attorneys from Foley. With that information, we can promptly determine whether to reconsider
`and alter the scope of documents we are seeking to compel.
`
`
`We are happy to meet and confer anytime on Wednesday, September 1, except from 1-2pm ET. We can also talk
`tonight if necessary.
`
`
`Best,
`Eric
`
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