`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`PHILIPS NORTH AMERICA LLC,
`
`v.
`
`FITBIT, INC.,
`
`Plaintiff,
`
`Defendant.
`
`Civil Action No. 1:19-cv-11586-FDS
`
`
`UNOPPOSED MOTION TO IMPOUND/SEAL DESIGNATED
`MATERIAL
`
`Pursuant to Local Rule 7.2 and the Order Adopting Discovery Stipulation and Modified
`
`Protective Order in this case (ECF No. 59, the “Protective Order”), Plaintiff Philips North America
`
`LLC (“Philips”) respectfully requests the Court to impound (seal) Plaintiff’s Presentation for
`
`Motions to Strike and Preclude Expert Testimony (“Plaintiff’s Presentation”).
`
`The Protective Order allows parties to designate discovery material that contains or
`
`constitutes confidential business information as “CONFIDENTIAL.” As grounds for this Motion,
`
`Philips states that Plaintiff’s Presentation contains discussion of Philips and third-party
`
`confidential business information. Specifically, seven slides in Plaintiff’s presentation include
`
`excerpts from the report of Philips’s damages expert, Dr. Michael Akemann, that contain Philips’s
`
`confidential licensing information and has been designated as confidential under the protective
`
`order.
`
`Additionally, in response to a subpoena, Icon Health & Fitness (“Icon”), a third party to
`
`this matter, produced documents related to the design and operation of several of their fitness
`
`products and services and marked these documents as confidential under the Protective Order
`
`because Icon believed them to include confidential business information. Icon likewise designated
`
`
`
`
`
`Case 1:19-cv-11586-FDS Document 353 Filed 03/15/22 Page 2 of 3
`
`
`
`the transcript of the deposition of one of their employees, Ms. Logan, as confidential under the
`
`Protective Order. Two of the slides in Plaintiff’s Presentation include excerpts from Fitbit’s
`
`technical expert’s invalidity report (designated by Fitbit as confidential under the Protective Order)
`
`that discuss the documents and testimony of Ms. Logan that was marked by Icon as confidential.
`
`Additionally, Philips has filed a redacted version of Plaintiff’s Presentation with redactions
`
`of only the nine slides (out of sixty-five total) that discuss Philips or Icon confidential business
`
`information.
`
`For the foregoing reasons, Philips respectfully requests that the Court permit Philips to file
`
`under seal Plaintiff’s Presentation for Motions to Strike and Preclude Expert Testimony. Philips
`
`further requests that the document remains impounded until further Order by the Court, and that
`
`upon expiration of the impoundment, the document be returned to Philips’s counsel.
`
`
`Dated: March 15, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`
`
`
`
` /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
`
`
`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
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 1:19-cv-11586-FDS Document 353 Filed 03/15/22 Page 3 of 3
`
`
`
`
`ethompson@foley.com
`
`Counsel for Plaintiff
` Philips North America LLC
`
`
`
`
`
`
`
`
`LOCAL RULE 7.2 CERTIFICATION
`
`I, John W. Custer, counsel for Philips North America LLC, hereby certify that counsel for
`
`Philips has conferred with counsel for Fitbit, Inc. to resolve the issues presented in this motion
`
`and that counsel for Fitbit indicated that Fitbit does not oppose the relief requested by this
`
`motion.
`
`
`
`Dated: March 15, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ John W. Custer
`John W. Custer
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing document was filed with
`
`the Court through the ECF system and that a copy will be electronically served on registered
`
`participants as identified on the Notice of Electronic Filing.
`
`Dated: March 15, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ John W. Custer
`John W. Custer
`
`
`
`
`