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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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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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`Civil Action No. 1:19-cv-11586-FDS
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`UNOPPOSED 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 (ECF No. 59, the “Protective Order”), Plaintiff Philips North America
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`LLC (“Philips”) respectfully requests the Court to impound (seal) Exhibits 1, 2, and 5 filed in
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`support of Plaintiff’s Motion to Preclude the Testimony of Dr. Joseph A. Paradiso Regarding the
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`iFIT Prior Art System (ECF 305).
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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 Motion,
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`Philips states that Exhibits 2 and 5 contains third party confidential business information. In
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`response to a subpoena, Icon Health & Fitness (“Icon”), a third party to this matter, produced
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`documents related to the design and operation of several of their fitness products and services and
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`marked these documents as confidential under the Protective Order because Icon believed them to
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`include confidential business information. Icon likewise designated the transcript of the deposition
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`of one of their employees, Ms. Logan, as confidential under the Protective Order. Exhibit 5 is an
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`excerpted version of this deposition. Exhibit 1 is Fitbit’s invalidity report that has been designated
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`as Confidential by Fitbit under the Protective Order because it contains discussion of the
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`Case 1:19-cv-11586-FDS Document 309 Filed 02/09/22 Page 2 of 3
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`documents and transcript designated as confidential under the Protective Order by Icon. Exhibit 2
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`is an excerpted version of the deposition transcript of Fitbit’s invalidity expert, Dr. Paradiso, which
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`has been designated as Confidential by Fitbit under the Protective Order because it also contains
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`discussion of the documents and transcript designated as confidential under the Protective Order
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`by Icon.
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`Additionally, Philips has filed a redacted version of Exhibit 1 with redactions of only to
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`the portions (only 56 pages out of 446 total pages) of Dr. Paradiso’s report that discuss the material
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`designated by Icon Health & Fitness as confidential.
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`For the foregoing reasons, Philips respectfully requests that the Court permit Philips to file
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`under seal Philips’s Exhibits 1, 2 and 5 in support of Philips’s Motion. Philips further requests that
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`these documents remain impounded until further Order by the Court, and that upon expiration of
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`the impoundment, these documents be returned to Philips’s counsel.
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`Dated: February 9, 2022
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`Respectfully Submitted,
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` /s/ John W. Custer
`Lucas I. Silva (BBO 673,935)
`Ruben J. Rodrigues (BBO 676,573)
`John Custer (BBO 705,258)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199-7610
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`lsilva@foley.com
`rrodrigues@foley.com
`jcuster@foley.com
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`Eley O. Thompson (pro hac vice)
`FOLEY & LARDNER LLP
`321 N. Clark Street
`Suite 2800
`Chicago, IL 60654-5313
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`Case 1:19-cv-11586-FDS Document 309 Filed 02/09/22 Page 3 of 3
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`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
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`Counsel for Plaintiff
` Philips North America LLC
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`LOCAL RULE 7.2 CERTIFICATION
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`I, John W. Custer, counsel for Philips North America LLC, hereby certify that counsel for
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`Philips has conferred with counsel for Fitbit, Inc. to resolve the issues presented in this motion
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`and that counsel for Fitbit indicated that Fitbit does not oppose the relief requested by this
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`motion.
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`Dated: February 9, 2022
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`/s/ John W. Custer
`John W. Custer
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing document was filed with
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`the Court through the ECF system and that a copy will be electronically served on registered
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`participants as identified on the Notice of Electronic Filing.
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`Dated: February 9, 2022
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`/s/ John W. Custer
`John W. Custer
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