Case 1:19-cv-11586-FDS Document 266 Filed 01/05/22 Page 1 of 4
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`Civil Action No. 1:19-cv-11586-FDS
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`PHILIPS NORTH AMERICA LLC,
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`
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`v.
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`FITBIT, INC.,
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`Plaintiff,
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`Defendant.
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`
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`ASSENTED-TO MOTION TO IMPOUND/SEAL DESIGNATED MATERIAL
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`Pursuant to Local Rule 7.2 and the Order Adopting Discovery Stipulation and Modified
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`Protective Order in this case (“Protective Order”), ECF No. 59, Defendant Fitbit, Inc. (“Fitbit”),
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`respectfully requests the Court to impound (seal) Exhibit 7 filed in support of ECF No. 265,
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`Fitbit’s Memorandum in Opposition to Philips’ Motion to Strike Portions of the November 16,
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`2021 Expert Report of Joseph A. Paradiso. Philips does not oppose this Motion to
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`Impound/Seal.
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`The Protective Order allows parties to designate discovery material that contains or
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`constitutes confidential business information as “CONFIDENTIAL.” As grounds for this
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`Motion, Fitbit states that Exhibit 7 comprises Fitbit’s supplemental objections and responses to
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`Plaintiff Philips North America LLC’s (“Philips’”) Interrogatories (Nos. 1-11). Fitbit’s
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`interrogatory responses in Exhibit 7 detail factual information regarding some of Fitbit’s
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`invalidity, non-infringement, and damages contentions regarding multiple patents, Fitbit’s
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`internal market research function, Fitbit’s product development process, Fitbit’s internal data
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`tracking procedures, and other Fitbit commercial processes regarding patent evaluation.
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`
`
`
`
`Civil Action No. 1:19-cv-11586-FDS
`
`
`PHILIPS NORTH AMERICA LLC,
`
`
`
`v.
`
`FITBIT, INC.,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`ASSENTED-TO MOTION TO IMPOUND/SEAL DESIGNATED MATERIAL
`
`Pursuant to Local Rule 7.2 and the Order Adopting Discovery Stipulation and Modified
`
`Protective Order in this case (“Protective Order”), ECF No. 59, Defendant Fitbit, Inc. (“Fitbit”),
`
`respectfully requests the Court to impound (seal) Exhibit 7 filed in support of ECF No. 265,
`
`Fitbit’s Memorandum in Opposition to Philips’ Motion to Strike Portions of the November 16,
`
`2021 Expert Report of Joseph A. Paradiso. Philips does not oppose this Motion to
`
`Impound/Seal.
`
`The Protective Order allows parties to designate discovery material that contains or
`
`constitutes confidential business information as “CONFIDENTIAL.” As grounds for this
`
`Motion, Fitbit states that Exhibit 7 comprises Fitbit’s supplemental objections and responses to
`
`Plaintiff Philips North America LLC’s (“Philips’”) Interrogatories (Nos. 1-11). Fitbit’s
`
`interrogatory responses in Exhibit 7 detail factual information regarding some of Fitbit’s
`
`invalidity, non-infringement, and damages contentions regarding multiple patents, Fitbit’s
`
`internal market research function, Fitbit’s product development process, Fitbit’s internal data
`
`tracking procedures, and other Fitbit commercial processes regarding patent evaluation.
`
`
`
`
`
`Case 1:19-cv-11586-FDS Document 266 Filed 01/05/22 Page 2 of 4
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`Fitbit’s interrogatory responses contain confidential business information that “concerns
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`or relates to the trade secrets, processes, operations, style of work, or apparatus” of Fitbit. ECF
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`No. 59-2, ¶ 1. Disclosure of these confidential details is likely to cause substantial harm to
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`Fitbit’s competitive position in the market for the accused products. ECF No. 59-2, ¶ 1. As an
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`example, Fitbit’s non-infringement contentions disclose various highly confidential details about
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`the operation of Fitbit’s accused smart watch and fitness tracker products.
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`Further, Fitbit’s invalidity contentions disclose various information designated
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`confidential by third parties regarding prior art products. And Fitbit’s damages contentions
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`disclose various information designated confidential by Philips regarding its patent licenses and
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`licensing practices.
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`Sealing this information will not undermine the public’s right to access because only
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`3/121 pages in Exhibit 7 are cited in Fitbit’s opposition brief (ECF No. 265). None of the other
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`information in Exhibit 7 is relevant to the determination of Philips’ Motion to Strike (ECF No.
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`259).
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`For the foregoing reasons, Fitbit respectfully requests that the Court permit Fitbit to file
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`under seal Exhibit 7 filed in support of ECF No. 265, Fitbit’s Memorandum in Opposition to
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`Philips’ Motion to Strike Portions of the November 16, 2021 expert Report of Joseph A.
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`Paradiso. Fitbit further requests that the documents remain impounded until further Order by the
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`Court, and that upon expiration of the impoundment, the documents be returned to Fitbit’s
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`counsel.
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`Case 1:19-cv-11586-FDS Document 266 Filed 01/05/22 Page 3 of 4
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`Date: January 5, 2022
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`Respectfully Submitted,
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`/s/ David J. Shaw
`David J. Shaw (pro hac vice)
`dshaw@desmaraisllp.com
`DESMARAIS LLP
`1701 Pennsylvania Ave., Suite 200
`Washington, D.C. 20006
`Telephone: (202) 451-4900
`Facsimile: (202) 451-4901
`
`Karim Z. Oussayef (pro hac vice)
`koussayef@desmaraisllp.com
`Leslie M. Spencer (pro hac vice)
`lspencer@desmaraisllp.com
`Brian D. Matty (pro hac vice)
`bmatty@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`
`Ameet A. Modi (pro hac vice)
`amodi@desmaraisllp.com
`DESMARAIS LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 573-1900
`Facsimile: (415) 573-1901
`
`Gregory F. Corbett (BBO #646394)
`gcorbett@wolfgreenfield.com
`Elizabeth A. DiMarco (BBO #681921)
`edimarco@wolfgreenfield.com
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 646-8000
`Facsimile: (617) 646-8646
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`Counsel for Fitbit, Inc.
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`Case 1:19-cv-11586-FDS Document 266 Filed 01/05/22 Page 4 of 4
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`LOCAL RULE 7.1(a)(2) CERTIFICATION
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`I hereby certify that counsel for FitBit conferred with Plaintiff’s counsel in a good-faith
`attempt to resolve or narrow the issue raised by this motion. Philips’s counsel indicated that Philips
`does not oppose the relief requested by this Motion.
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`/s/ David J. Shaw
`David J. Shaw
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system,
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`which serves counsel for other parties who are registered participants as identified on the Notice
`of Electronic Filing (NEF). Any counsel for other parties who are not registered participants are
`being served by first class mail on the date of electronic filing.
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`/s/ Elizabeth A. DiMarco
`Elizabeth A. DiMarco
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