Case 1:19-cv-11586-FDS Document 270-7 Filed 01/05/22 Page 1 of 4
`Case 1:19-cv-11586-FDS Document 270-7 Filed 01/05/22 Page 1 of 4
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`EXHIBIT 7
`EXHIBIT 7
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`Case 1:19-cv-11586-FDS Document 270-7 Filed 01/05/22 Page 2 of 4
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`1(650) 320-1855
`davidokano@paulhastings.com
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`November 12, 2020
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Ruben J. Rodrigues
`Foley & Lardner LLP
`111 Huntington Ave, Suite 2600
`Boston, MA 02199
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`Ruben:
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`We write to follow up on our meet and confer yesterday, November 11, to confirm what we discussed. If
`anything in this letter does not reflect your understanding of our meet and confer, please inform us
`promptly.
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`I.
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`30(B)(6) DEPOSITIONS
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`On behalf of Philips, you represented that Philips will be designating Mr. Pastink as the primary 30(b)(6)
`witness and a witness Philips intends to call at trial, and that you would provide Mr. Pastink’s availability
`for deposition within the next few weeks. We understand that Philips will be designating Mr. Tol as a
`30(b)(6) witness on certain topics relating to the Symcare and LifeScan licenses. You agreed to make an
`effort to provide Mr. Tol for deposition on December 9, 10, or 11. Given the likely deposition start time
`based on time differences due to Mr. Tol’s location, the parties agreed that Mr. Tol’s deposition would be
`for less than a full day and that the parties would endeavor to avoid having Mr. Tol sit for two days of
`deposition.
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`On behalf of Philips, you also informed us that Philips will be designating a witness other than Mr. Pastink
`on design and development topics relating to Philips’ Health Watch and HealthSuite application. You
`agreed to promptly inform Fitbit of the identity of that witness and to make him or her available for
`deposition.
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`Relatedly, the parties agreed that while they would each make good faith efforts to complete fact
`discovery by the December 11 cutoff, should scheduling difficulties require a deposition of either a Philips
`or Fitbit witness to be taken out of time, the parties would in good faith attempt to do so.
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`II.
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`ESI REQUESTS
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`As stated during the meet and confer, Fitbit’s position is that the stipulated discovery order, as stated in
`section viii.b, limits ESI requests to “a total of ten search terms,” not ten search terms per custodian.
`Philips’ position is that the stipulated discovery order permits ten search terms per custodian.
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`Fitbit received a proposed compromise from Philips yesterday of a total of 15 search terms and
`appreciates Philips’ good faith efforts to resolve the parties’ disputes. Fitbit will respond to Philips’
`proposed ESI requests in a separate correspondence.
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`Case 1:19-cv-11586-FDS Document 270-7 Filed 01/05/22 Page 3 of 4
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`Ruben J. Rodrigues
`November 12, 2020
`Page 2
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`III.
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`INTERROGATORY NOS. 2, 10, 14, 17:
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`For Interrogatory No. 2, Philips agreed to supplement its response on Friday with further information
`concerning licensing negotiations. As stated during the meet and confer, Fitbit has complied with Rule
`33(d) of the Federal Rules of Civil Procedure and intends to continue complying with its discovery
`obligations under the Federal Rules. Philips agreed to inform Fitbit whether it would comply with its
`obligations under Rule 33(d) to identify specific documents it relies on for its interrogatory responses.
`Should Philips assert that it does not intend to comply with its discovery obligations under Rule 33(d), the
`parties agreed to promptly schedule a meet and confer on the issue.
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`For Interrogatory No. 14, Philips believes it has identified all responsive payments. While internal Philips
`emails may reflect a payment from Symcare, Philips was unable to locate evidence of that payment in its
`system. Philips will be producing documents to support this assertion.
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`For Interrogatory Nos. 10 and 17, Philips’ contends that it has satisfied the required disclosure of a
`computation of damages under Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure by stating it
`seeks a reasonable royalty and indicating that it will provide a computation of that reasonable royalty in
`expert reports. Fitbit disagrees that Philips’ mere disclosure of a legal theory—that it seeks a reasonable
`royalty—satisfies its discovery obligations under at least Rule 26(a)(1)(A)(iii), as Fitbit has set forth in
`detail in its October 30, 2020 correspondence. We informed you that Fitbit intends to raise this issue with
`the Court, and you agreed that Fitbit had satisfied the meet and confer requirement in Local Rule
`7.1(a)(2) on this issue.
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`IV.
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`INTERROGATORY NOS. 4, 11, 20:
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`For Interrogatory No. 4, Philips’ contends that Fitbit agreed to limit Interrogatory No. 4 to the products
`identified in Fitbit’s original Arctic Cat notice. Philips invited Fitbit to serve an additional interrogatory that
`identified additional products. Fitbit disagrees that Interrogatory No. 4 is limited to the products identified
`in its original Arctic Cat notice, or that it agreed to limit the interrogatory in this manner.
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`Yesterday, Fitbit served an additional interrogatory specific to the Philips and licensee products identified
`in Fitbit’s amended Arctic Cat notice, as well as the Philips Health Band product. Fitbit expects Philips to
`provide a fulsome response to this interrogatory that identifies which products practice the Patents-in-
`Suit, and for those products that Philips contends do not, a claim-by-claim and limitation-by-limitation
`analysis as to why the product does not practice any claim of the Patents-in-Suit, and details Philips’
`marking efforts and efforts to ensure compliance with 35 U.S.C. § 287 by its licensees.
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`For Interrogatory No. 11, Philips agreed to supplement its response by Friday to state that Philips has not
`marked its products with the patent numbers of the Patents-in-Suit. Fitbit also requested Philips to
`supplement its response to provide specifics as to steps it has taken—if any—to ensure compliance with
`35 U.S.C. § 287 by its licensees. Please inform us by the end of the week whether Philips intends to
`supplement its response to list the specific acts—if any—that Philips has undertaken to ensure
`compliance by its licensees with the marking statute.
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`For Interrogatory No. 20, you confirmed that Philips will supplement its response on Friday.
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`Case 1:19-cv-11586-FDS Document 270-7 Filed 01/05/22 Page 4 of 4
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`Ruben J. Rodrigues
`November 12, 2020
`Page 3
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`V.
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`INTERROGATORY NOS. 1, 6, 7, 9, 13, 16, 18, 19:
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`For Interrogatory Nos. 1 and 13, Philips agreed to supplement its response by Friday.
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`For Interrogatory No. 16, Philips agreed to promptly identify the additional Philips witnesses to be
`designated on 30(b)(6) topics regarding Philips products. Fitbit indicated it would object to any effort by
`Philips to rely on any witnesses whose expected trial testimony or scope of knowledge was not disclosed
`in Philips’ Rule 26 disclosures, in interrogatories served in this matter, or within the direct testimony of that
`witness during deposition.
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`For Interrogatory No. 18, Philips agreed to provide its privilege log before the deposition of Mr. Pastink.
`The parties also agreed to produce non-privileged response e-mails to ESI requests a reasonable amount
`of time before depositions of the respective party witnesses.
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`For Interrogatory No. 19, Philips does not intend to supplement its response.
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`For Interrogatory Nos. 6, 7, and 9, Philips would not commit to supplementing its response as requested
`by Fitbit in its correspondence to provide the specific factual detail supporting its indirect and joint
`infringement allegations that should already be in Philips’ possession, including factual detail relating to
`actions performed by the underlying direct infringers, the required mens rea to show induced and
`contributory infringement, and the conditioned benefit received by Fitbit’s users for purposes of joint
`infringement. Philips stated that outstanding discovery may affect Philips’ responses. Fitbit reiterated its
`position set forth in its November 5, 2020 correspondence that Philips’ current responses to these
`interrogatories do not comply with its discovery obligations under the Federal Rules of Civil Procedure.
`Fitbit stated that if Philips does not supplement its responses, Fitbit reserves its right to move to strike or
`exclude any factual evidence Philips relies on to support its contentions that was not disclosed in
`response to these interrogatories. Fitbit also stated that it may seek a meet and confer after evaluating
`any supplemental responses by Philips in order to bring this dispute to the Court.
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`VI.
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`CERIAN TECHNOLOGY VENTURES SUBPOENA
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`You confirmed that Cerian Technology Ventures will be producing documents early next week.
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`Sincerely,
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`/s/ David Okano
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`David Okano
`for PAUL HASTINGS LLP
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