`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`v.
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`FITBIT, INC.,
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`Defendant.
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`
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`Civil Action No. 1:19-cv-11586-FDS
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`DEFENDANT FITBIT LLC’S MOTION TO STRIKE, IN PART, THE INFRINGEMENT
`EXPERT REPORT AND OPINIONS OF DR. TOM MARTIN PURSUANT TO FED. R.
`CIV. P. 37(C)(1) AND LOCAL RULE 16.6(D)
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`Pursuant to Federal Rules of Civil Procedure 37(c)(1) and District of Massachusetts Local
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`Rule16.6(d), Defendant Fitbit, Inc. (“Fitbit”) respectfully requests that the Court enter an order
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`striking, in part, the Infringement Expert Report and Opinions of Dr. Tom Martin (the “Martin
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`Report”). Specifically, Fitbit requests that the Court: (1) strike Plaintiff Philips North America
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`LLC’s (“Philips”) three new infringement theories as identified in the portions of the Martin
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`Report indicated by green redaction boxes in Exhibit 2 to the accompanying Declaration of David
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`J. Shaw and in Fitbit’s Memorandum of Law in support of this motion; and (2) bar Philips from
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`presenting those new infringement theories, and all other opinions and evidence related to them,
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`in any other motion, hearing or at trial.
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`In support of this Motion, Fitbit relies on the Memorandum of Law and the Declaration of
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`David. J. Shaw, including attached exhibits, submitted herewith.
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`Case 1:19-cv-11586-FDS Document 268 Filed 01/05/22 Page 2 of 4
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`Dated: January 5, 2022
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`By:
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`2
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`/s/ David J. Shaw
`David J. Shaw (pro hac vice)
`dshaw@desmaraisllp.com
`DESMARAIS LLP
`1701 Pennsylvania Ave., NW, 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
`Henry Ard (pro hac vice)
`hard@desmaraisllp.com
`Eric G. Speckhard
`especkhard@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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`Attorneys for Defendant Fitbit, Inc.
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`Case 1:19-cv-11586-FDS Document 268 Filed 01/05/22 Page 3 of 4
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`CERTIFICATE PURSUANT TO LOCAL RULE 7.1(A)(2)
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`The undersigned hereby certifies that counsel for Fitbit conferred with counsel for Philips
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`and attempted in good faith to resolve or narrow the issues in dispute, but was unable to do so.
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`/s/ David J. Shaw
`David J. Shaw
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`Counsel for Defendant Fitbit, Inc.
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`CERTIFICATE PURSUANT TO LOCAL RULE 37.1
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`The undersigned hereby certifies that counsel for Fitbit has complied with the provisions
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`of Local Rule 37.1.
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`/s/ David J. Shaw
`David J. Shaw
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`Counsel for Defendant Fitbit, Inc.
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`3
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`Case 1:19-cv-11586-FDS Document 268 Filed 01/05/22 Page 4 of 4
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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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`
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`/s/ Elizabeth A. DiMarco
`Elizabeth A. DiMarco
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`4
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