Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 1 of 29
`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 1 of 29
`
`EXHIBIT 2
`EXHIBIT 2
`
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 2 of 29
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`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
` District of Massachusetts
`__________ District of __________
`
`Civil Action No.
`
`1:19-cv-11586-IT
`
`))))))
`
`PHILIPS NORTH AMERICA LLC
`Plaintiff
`v.
`
`FITBIT, INC.
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`Icon Health & Fitness, Inc, Attn: Legal Dept.,1500 South 1000 West, Logan, UT 84321
`
`(Name of person to whom this subpoena is directed)
`✔
`(cid:117) Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`
`See Attachment A.
`
`Place:
`
`Remote, via Zoom
`
`Date and Time:
`
`09/07/2020 9:30 am
`
`The deposition will be recorded by this method:
`
`Video and court reporter
`
`✔
`(cid:117) Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`
`See Attachment A.
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`08/07/2020
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ David Beckwith
`Attorney’s signature
`
`FITBIT, INC.
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`David Beckwith, Paul Hastings LLP, 1117 California Avenue, Palo Alto, CA 94304, davidbeckwith@paulhastings.com,
`(650) 320-1982
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things before
`trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to
`whom it is directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 3 of 29
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`1:19-cv-11586-IT
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`(cid:117) I served the subpoena by delivering a copy to the named individual as follows:
`
`(cid:117) I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 4 of 29
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(c) Place of Compliance.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
` (i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 5 of 29
`
`ATTACHMENT A
`
`DEFINITIONS
`
`1.
`
`“Icon Health,” “you,” and “your” means Icon Health & Fitness, Inc. and all its
`
`predecessors or successors (merged, acquired, or otherwise), parents, divisions, subsidiaries, and
`
`affiliates thereto and all officers, agents, employees, counsel and other persons acting on its behalf.
`
`2.
`
` “And” as well as “or” are to be interpreted inclusively so as not to exclude any
`
`information otherwise within the scope of any request or examination topic. The use of the
`
`singular includes the plural, and the use of one gender shall include the other, as appropriate.
`
`3.
`
`4.
`
`“Each” should be understood to include and encompass “every.”
`
`The terms “refer,” “relating to,” “related to,” and “regarding” include, but are not
`
`limited to, the following meanings: bearing upon, concerning, constituting, discussing, describing,
`
`evidencing, identifying, in connection with, pertaining to, respecting, regarding, responding to, or
`
`in any way logically or factually relevant to the matter described.
`
`5.
`
`“Document(s)” is defined to be synonymous in meaning and equal in scope to the
`
`usage of this term in Federal Rule of Civil Procedure 34.
`
`6.
`
`A product, system, design, prototype, proof-of-concept, test, or implementation that
`
`was “publicly used” or “in public use” should be understood to include anything that was tested,
`
`demonstrated, used, operated, worn, displayed, exhibited, or shown in a place accessible to the
`
`public in the United States.
`
`7.
`
`A product, system, design, prototype, proof-of-concept, test, or implementation that
`
`was “on sale” or “offered for sale” should be understood to include anything that was offered for
`
`sale or actually sold in the United States.
`
`
`
`1
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 6 of 29
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`INSTRUCTIONS
`
`1.
`
`You are to search all documents within your possession, custody, or control,
`
`wherever located, including but not limited to any documents placed in storage facilities or in the
`
`possession of any employee, agent, representative, attorney, investigator, or other person acting or
`
`purporting to act on your behalf (whether located at his/her residence or place of business), in order
`
`to fully respond to the requests herein.
`
`2.
`
`You are to produce documents from any single file in the same order as they were
`
`found in such file, including any labels, files, folders, and containers which such documents are
`
`located in or associated with. If copies of documents are produced in lieu of the originals, such
`
`copies should be legible and bound or stapled in the same manner as the original.
`
`3.
`
`If you do not produce each document or thing requested herein as they are kept in
`
`the usual course of business, you must organize and label the documents or things produced to
`
`correspond with the particular document request to which the document or thing is responsive.
`
`4.
`
`You are to produce all documents which are responsive in whole or in part to any
`
`of the requests herein in full, without abridgement, abbreviation, or expurgation of any sort, and
`
`regardless of whether you deem such documents to be irrelevant to the issues in the investigation
`
`or which such documents are being sought. If any such documents cannot be produced in full,
`
`produce the document to the extent possible and indicate in your written response what portion of
`
`the document is not produced and why it could not be produced.
`
`5.
`
`You are required to produce not only the original or an exact copy of the original
`
`of all documents or things responsive to any of the requests herein, but also all copies of such
`
`documents or things which bear any notes or markings not found on the originals and all
`
`preliminary, intermediate, final, and revised drafts or embodiments of such documents or things.
`
`
`
`2
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`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 7 of 29
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`You are also required to produce all versions of the foregoing documents stored by a computer
`
`internally, on disk, on CD-ROM, or on tape.
`
`6.
`
`If no documents are responsive to a particular request, you are to state that no
`
`responsive documents exist.
`
`7.
`
`If a document is in a language other than English, you should provide that
`
`document. If a document is in a language other than English, and an English translation exists, you
`
`should provide both documents.
`
`8.
`
`You are to produce any purportedly privileged document containing nonprivileged
`
`matter, with the purportedly privileged portion excised or redacted.
`
`9.
`
`If any of the documents requested herein are no longer in your possession, custody,
`
`or control, you are requested to identify each such requested document by date, type of document,
`
`person(s) from whom sent, person(s) to whom sent, and person(s) receiving copies, and to provide
`
`a summary of its pertinent contents.
`
`10.
`
`If any document responsive to these requests has been destroyed, describe the
`
`content of such document, the location of any copies of such document, the date of such
`
`destruction, and the name of the person who ordered or authorized such destruction.
`
`11.
`
`Electronic and computerized materials must be produced in an intelligible format
`
`or together with a description of the system from which it was derived sufficient to permit
`
`tendering of the material intelligible.
`
`12.
`
`If production of any document listed and described herein is withheld on the basis
`
`of a claim of privilege, each withheld document shall be separately identified in a privileged
`
`document list. The privileged document list must identify each document separately, specifying
`
`for each document at least: (1) the date of the document; (2) the author(s) and/or sender(s) of the
`
`
`
`3
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 8 of 29
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`document (3) the recipient(s) of the document, including copy recipients; and (4) the general
`
`subject matter of the document. The sender(s) and recipient(s) shall be identified by position and
`
`entity (corporation or firm, etc.) with which they are employed or associated. If the sender or the
`
`recipient is an attorney or a foreign patent agent, he or she shall be so identified. The type of
`
`privilege claimed must also be stated, together with a certification that all elements of the claimed
`
`privilege have been met and have not been waived with respect to each document.
`
`13.
`
`Local Rule 16.6(d)(6) (“Local Rules of the United States District Court for the
`
`District of Massachusetts,” p. 37) permits designation of documents and deposition testimony as
`
`“Confidential Pursuant to the Court’s Default PO.”
`
`TYPES OF DOCUMENTS REQUESTED
`
`1.
`
`Documents, images, and videos sufficient to show the operation and functionality
`
`of iFit technology, such as virtual personal trainer technology, that allowed for communication
`
`between a personal exercise machine and a remote location over a network such as the Internet or
`
`a telephone line, and that were publicly used, on sale, or offered for sale in the United States before
`
`December 17, 1999.
`
`2.
`
`Documents sufficient to identify and describe the operation of the products or
`
`systems that incorporated the iFit virtual personal trainer technology or similar technologies that
`
`(1) were capable of communication between a personal exercise machine and a remote location
`
`over a network such as the Internet or a telephone line, and (2) were publicly used, offered for sale,
`
`or on sale before December 17, 1999.
`
`3.
`
`Documents sufficient to show that each product utilizing the iFit Live or similar
`
`technology that allowed for communication between a personal exercise machine and a remote
`
`
`
`4
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 9 of 29
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`location over a network such as the Internet or a telephone line, was publicly used, offered for sale,
`
`or on sale before December 17, 1999.
`
`4.
`
`Documents sufficient to show the operation and functionality of the ProForm 585Pi
`
`(Model No. PFTL59190), including the types of parameters measured by the product, such as heart
`
`rate, distance traveled, or calories burned, and the operation of the iFit.com Internet feature, such
`
`as the data transmitted to and from the personal exercise machine through the Internet and any
`
`calculations on exercise data performed at a remote location when using the iFit.com Internet
`
`feature.
`
`5.
`
`Documents sufficient to show that the ProForm 585Pi (Model No. PFTL59190)
`
`was publicly used, offered for sale, or on sale before December 17, 1999.
`
`6.
`
`Documents sufficient to show the operation and functionality of the ProForm 785Pi
`
`(Model No. PFTL79192), including the types of parameters measured by the product, such as heart
`
`rate, distance traveled, or calories burned, and the operation of the iFit.com Internet feature, such
`
`as the data transmitted to and from the personal exercise machine through the Internet and
`
`calculations on exercise data performed at a remote location when using the iFit.com Internet
`
`feature.
`
`7.
`
`Documents sufficient to show that the ProForm 785Pi (Model No. PFTL79192)
`
`was publicly used, offered for sale, or on sale before December 17, 1999.
`
`8.
`
`Documents, images, and videos sufficient to identify and describe the operation and
`
`functionality of systems described in U.S. Patent No. 5,489,249 that were publicly used, offered
`
`for sale, or on sale before December 17, 1999, including the types of parameters measured by the
`
`system, such as heart rate, distance traveled, or calories burned, description of any data transmitted
`
`between the personal exercise machine and an external source through a network (such as a
`
`
`
`5
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 10 of 29
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`telephone line or the Internet) in connection with use of the system, and any calculations on
`
`exercise data performed at the external source.
`
`9.
`
`Documents sufficient to show that each product or system responsive to Request
`
`No. 8 was publicly used, offered for sale, or on sale before December 17, 1999.
`
`10.
`
`Documents, images, and videos sufficient to identify and describe the operation and
`
`functionality of systems described in U.S. Patent No. 5,645,509 that were publicly used, offered
`
`for sale, or on sale before December 17, 1999, including the types of parameters measured by the
`
`system, such as heart rate, distance traveled, or calories burned, description of the data transmitted
`
`between the personal exercise machine and an external source at a remote location through a
`
`network (such as a telephone line or the Internet) in connection with use of the system, and any
`
`calculations on exercise data performed at the external source.
`
`11.
`
`Documents sufficient to show that each product or system responsive to Request
`
`No. 10 was publicly used, offered for sale, or on sale before December 17, 1999.
`
`12.
`
`Documents, images, and videos sufficient to identify and describe the operation and
`
`functionality of systems described in U.S. Patent No. 6,059,692 that were publicly used, offered
`
`for sale, or on sale before December 17, 1999, including the types of parameters measured by the
`
`system, such as heart rate, distance traveled, or calories burned, description of the data transmitted
`
`between the personal exercise machine and a remote system through a network (such as a
`
`telephone line or the Internet) in connection with use of the system, and any calculations on
`
`exercise data performed at the remote system.
`
`13.
`
`Documents sufficient to show that each product or system responsive to Request
`
`No. 12 was publicly used, offered for sale, or on sale before December 17, 1999.
`
`
`
`6
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 11 of 29
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`14.
`
`Documents, images, and videos sufficient to identify and describe the operation and
`
`functionality of systems described in U.S. Patent No. 6,193,631 that were publicly used, offered
`
`for sale, or on sale before December 17, 1999, including the types of parameters measured by the
`
`system, such as heart rate, distance traveled, or calories burned, description of the data transmitted
`
`between the personal exercise machine and a remote system through a network (such as a
`
`telephone line or the Internet) in connection with use of the system, and any calculations on
`
`exercise data performed at the remote system.
`
`15.
`
`Documents sufficient to show that each product or system responsive to Request
`
`No. 14 was publicly used, offered for sale, or on sale before December 17, 1999.
`
`16.
`
`Documents, images, and videos sufficient to identify and describe the operation and
`
`functionality of systems described in U.S. Patent No. 6,312,363 that were publicly used, offered
`
`for sale, or on sale before December 17, 1999, including the types of parameters measured by the
`
`product, such as heart rate, distance traveled, or calories burned, description of the data transmitted
`
`between the personal exercise machine and a remote system through a network (such as a
`
`telephone line or the Internet) in connection with use of the system, and any calculations on
`
`exercise data performed at the remote system.
`
`17.
`
`Documents sufficient to show that each product or system responsive to Request
`
`No. 16 was publicly used, offered for sale, or on sale before December 17, 1999.
`
`18.
`
`Documents sufficient to show the identification, operation, and functionality of
`
`your products or systems that were capable of communicating between personal exercise machines
`
`and a remote location over a network (such as the Internet or a telephone line), and that were
`
`publicly used, on sale, or offered for sale in the United States before December 17, 1999.
`
`
`
`7
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 12 of 29
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`19.
`
`Documents sufficient to show that each product or system responsive to Request
`
`No. 18 was publicly used, offered for sale, or on sale before December 17, 1999.
`
`20.
`
`Documents sufficient to identify the two people most knowledgeable about the
`
`subject matter of each Request Nos. 1–19.
`
`DEPOSITION TOPICS
`
`1.
`
`The pre-December 17, 1999 public use, offer to sell, or actual sale of any of the
`
`implementations and systems identified in Document Requests Nos. 1–19.
`
`2.
`
`Subject matter within and creation of the documents produced in response to
`
`Document Requests Nos. 1-19.
`
`3.
`
`The pre-December 17, 1999 operation and functionality of the systems identified
`
`in Document Requests Nos. 1–19.
`
`4.
`
`The documents produced in response to Document Requests Nos. 1–20 above,
`
`including the authentication and record-keeping maintenance thereof.
`
`
`
`
`
`8
`
`

`

`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 13 of 29
`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 1 of 17
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`PHILIPS NORTH AMERICA LLC,
`
`V.
`
`FITBIT, INC.
`
`Plaintiff,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 1:19-cv-11586
`
`IPROI USED! PROTECTIVE ORDER
`
`WHEREAS, documents and information may be sought, produced or exhibited by and
`
`among the parties to the above captioned proceeding, which materials relate to trade secrets or
`
`other confidential research, development or commercial information;
`
`IT IS HEREBY ORDERED THAT:
`
`1. Confidential business information is information which concerns or relates to the trade
`
`secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments,
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`purchases, transfers, identification of customers, inventories, amount or source of any income,
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`profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization,
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`or other information of commercial value, the disclosure of which is likely to have the effect of
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`either causing substantial harm to the competitive position of the person, firm, partnership,
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`corporation, or other organization from which the information was obtained.
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`2. Any information submitted, in discovery or in a pleading, motion, or response to a
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`motion either voluntarily or pursuant to lawful discovery request, or a court order, which is asserted
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`4847-7508-1399.2
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`1
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`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 14 of 29
`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 2 of 17
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`by a party to contain or constitute confidential business information shall be so designated by such
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`party in writing, or orally at a deposition, conference or hearing. Documents shall be clearly and
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`prominently marked on their face with the legend: "CONFIDENTIAL" or a comparable notice.
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`Such information, whether submitted in writing or in oral testimony, shall be treated in accordance
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`with the terms of this protective order. No party shall redact confidential information in a
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`document; rather, the disclosing party should simply label the document as Confidential, and if it
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`becomes relevant, will inform the receiving party subsequently of any particular portion of the
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`document deemed confidential.
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`3. In the absence of written permission from the disclosing party or an order by the Court,
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`any confidential documents or business information submitted in accordance with the provisions
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`of paragraph 2 above shall not be disclosed to any person other than: (i) outside counsel for parties
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`to this action, including necessary secretarial and support personnel assisting such counsel; (ii)
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`qualified persons taking testimony involving such documents or information and necessary
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`stenographic and clerical personnel thereof; (iii) technical experts and their staff who are employed
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`for the purposes of this litigation (unless they are otherwise employed by, consultants to, or
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`otherwise affiliated with a non-governmental party, or are employees of any domestic or foreign
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`manufacturer, wholesaler, retailer, or distributor of the products, devices or component parts that
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`are the subject of this action); (iv) the Court and its staff.
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`4. Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph 3(iii) unless
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`he or she shall have first read this order and shall have signed the undertaking at Attachment A.
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`However, Attorneys who have filed an appearance in this matter need not sign the undertaking at
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`4847-7508-1399.2
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`2
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`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 15 of 29
`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 3 of 17
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`Attachment A, but shall nevertheless be subject to, and bound by, the provisions of this Protective
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`Order.
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`5. If the Court orders, or the disclosing party agrees, that access to, or dissemination of
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`information submitted as confidential business information shall be made to persons not included
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`in paragraph 3 above, such matter shall only be accessible to, or disseminated to, such persons
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`based upon the conditions pertaining to, and obligations arising from this order, and such persons
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`shall be considered subject to it, unless the Court finds that the information is not confidential
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`business information as defined in paragraph 1 hereof.
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`7. The restrictions upon, and obligations accruing to, persons who become subject to this
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`order shall not apply to any information submitted in accordance with paragraph 2 above to which
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`the person asserting the confidential status thereof agrees in writing, or the Court rules, after an
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`opportunity for hearing, was publicly known at the time it was supplied to the receiving party or
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`has since become publicly known through no fault of the receiving party.
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`8. If a party who receives materials or information that has been designated as confidential
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`and submitted in accordance with paragraph 2 disagrees with respect to such a designation, in full
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`or in part, it shall notify the disclosing party in writing, and they will thereupon confer as to the
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`status of the subject information proffered within the context of this order. If the receiving party
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`and the disclosing party are unable to concur upon the status of the subject information submitted
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`as confidential business information within ten days from the date of notification of such
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`disagreement, the party challenging the confidentiality designation may file a motion with the
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`484 7-7508-1399.2
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`Case 1:19-cv-11586-FDS Document 324-2 Filed 02/23/22 Page 16 of 29
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`Court seeking to remove the confidentiality designation. If such motion is granted, the non-movant
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`shall compensate the movant for the reasonable expenses and fees associated with the motion. In
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`the event of a mixed result, the Court may fairly apportion fees and expenses. The Court may sua
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`sponte question the designation of the confidential status of any information and, after opportunity
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`for hearing, may remove the confidentiality designation.
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`9. No less than 10 days (or any other period of time designated by the Court) prior to the
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`initial disclosure to a proposed expert of any confidential information submitted in accordance
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`with paragraph 2, the party proposing to use such expert shall submit in writing the name of such
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`proposed expert and his or her educational and detailed employment history to the opposing party.
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`If the opposing party objects to the disclosure of such confidential business information to such
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`p