Case 1:19-cv-11586-FDS Document 344 Filed 03/02/22 Page 1 of 5
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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) Material related to Philips’s
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`Motion for Partial Summary Judgment of Direct Infringement and No Invalidity on iFit Prior Art
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`(Dkt. 335). Specifically, Philips requests the Court to seal Philips’s Memorandum and Statement
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`of Facts in Support of its Motion for Partial Summary Judgment (Dkt. Nos. 340-341) as well as
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`Exhibits A, K-X, Z, AA, AD-AG, AN-AP, AW, BB, BC, and BE filed in support thereof.
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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 Philips’s Memorandum, Statement of Facts, and identified Exhibits contain
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`discussion of Fitbit’s confidential business information as well as discussion of third-party Icon’s
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`confidential business information. Specifically, Exhibits P-X, Z, AD-AF, AW, BB, and BC are all
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`internal Fitbit documents marked by Fitbit as Confidential under the Protective Order as they
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`describe confidential business information relating to certain features of Fitbit’s accused smart
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`watch and fitness trackers and describe confidential business information relating to Fitbit’s
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`Case 1:19-cv-11586-FDS Document 344 Filed 03/02/22 Page 2 of 5
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`marketing strategies. Exhibits A and L are the technical expert reports of Dr. Martin and Dr.
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`Paradiso, respectively, which were both marked as Confidential under the Protective Order as they
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`discuss confidential business information relating to certain features of Fitbit’s accused smart
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`watch and fitness trackers and describe confidential business information relating to Fitbit’s
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`marketing strategies. Exhibit AA is an exhibit attached to the technical expert report of Dr. Martin
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`that reflects Fitbit’s confidential business information relating to the number of users that use its
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`systems. Exhibits N and O are excerpts from the transcripts of the depositions of Dr. Martin and
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`Dr. Paradiso respectively, both of which were designated as Confidential under the Protective
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`Order as they discuss confidential business information relating to certain features of Fitbit’s
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`accused smart watch and fitness trackers. Exhibits K, M, and AG are excerpts from the transcripts
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`of the depositions of Fitbit employees Mr. Ryan Krems, Mr. Gilles Boccon-Gibod, and Ms. Preethi
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`Mukundan, respectively. Each of those transcripts were designated as Confidential under the
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`Protective Order as they describe confidential business information relating to certain features of
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`Fitbit’s accused smart watch and fitness trackers and describing confidential business information
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`relating to Fitbit’s marketing strategies.
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`Further, in response to a subpoena, Icon Health & Fitness (“Icon”), a third party to this
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`matter, produced documents related to the design and operation of several of their fitness products
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`and services and marked these documents as confidential under the Protective Order because Icon
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`believed them to include confidential business information. Exhibits AN-AP are documents
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`marked as Confidential under the Protective Order by Icon that deal with the design and operation
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`of their fitness products and services. Icon likewise designated the transcript of the deposition of
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`one of their employees, Ms. Logan, as confidential under the Protective Order. Exhibit BE is an
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`excerpted version of the transcript from this deposition.
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`Case 1:19-cv-11586-FDS Document 344 Filed 03/02/22 Page 3 of 5
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`Additionally, Philips’s Memorandum and Statement of Facts in Support of its Motion for
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`Partial Summary Judgment each contain discussion throughout of the Fitbit and Icon confidential
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`business information referenced above.
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`For the foregoing reasons, Philips respectfully requests that the Court permit Philips to file
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`under seal its Memorandum and Statement of Facts in Support of its Motion for Partial Summary
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`Judgment (Dkt. Nos. 340-341) as well as Exhibits A, K-X, Z, AA, AD-AG, AN-AP, AW, BB, BC,
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`and BE filed in support thereof. Philips further requests that these documents remain impounded
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`until further Order by the Court, and that upon expiration of the impoundment, these document be
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`returned to Philips’s counsel.
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`Dated: March 2, 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
`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
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`Michelle A. Moran
`FOLEY & LARDNER LLP
`777 East Wisconsin Avenue
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`Case 1:19-cv-11586-FDS Document 344 Filed 03/02/22 Page 4 of 5
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`Milwaukee, WI 53202
`Phone: (414) 271-2400
`Fax: (414)297-4900
`mmoran@foley.com
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`Counsel for Plaintiff
` Philips North America LLC
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`Case 1:19-cv-11586-FDS Document 344 Filed 03/02/22 Page 5 of 5
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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 and
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`that counsel for Fitbit indicated that Fitbit does not oppose the relief requested by this motion.
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`/s/ John W. Custer
`John W. Custer
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`Dated: March 2, 2022
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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 the
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`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: March 2, 2022
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`/s/ John W. Custer
`John W. Custer
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