Case 1:19-cv-11586-FDS Document 368 Filed 03/30/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`v.
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`FITBIT LLC,
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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 (“Protective Order”), ECF No. 59, Defendant Fitbit LLC (“Fitbit”),
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`respectfully requests the Court to impound (seal) the following material:
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`1. an un-redacted copy of Defendant Fitbit LLC’s Opposition To Philips’ Motion For
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`Partial Summary Judgment Of Direct Infringement And No Invalidity (Dkt. 335)
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`(“Opposition”);
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`2. an un-redacted copy of Fitbit’s Responses To Philips’ Statement Of Facts In
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`Support Of Its Motion For Partial Summary Judgment Of Direct Infringement And
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`No Invalidity On iFit Prior Art (Dkt. 341) And Fitbit’s Responsive Statements Of
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`Fact For Which Fitbit Contends There Is A Genuine Issue For Trial (“RSUF”); and
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`3. Exhibits 1-3 and 6 filed in support of the Opposition.
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`Plaintiff Philips North America LLC (“Philips”) does not oppose this Motion to
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`Impound/Seal.
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`Case 1:19-cv-11586-FDS Document 368 Filed 03/30/22 Page 2 of 5
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`The Protective Order allows parties to designate material that contains or constitutes
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`confidential business information as “CONFIDENTIAL.” The Protective Order also allows
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`parties to designate material that contains or discusses proprietary source code as “Confidential
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`Source Code—Attorneys’ Eyes Only Information.” Fitbit’s Opposition, RSUF, and Exhibits 1-3
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`and 6 contain either (1) sensitive business information designated Confidential under the
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`Protective Order, public disclosure of which would risk competitive harm to Fitbit, Philips, and/or
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`third parties and/or (2) confidential information regarding the operation of the accused Fitbit
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`wearable devices, Fitbit application, and Fitbit back-end servers, including descriptions of Fitbit
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`source code, that has been designated either Confidential or Confidential Source Code—
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`Attorneys’ Eyes Only Information under the Protective Order.
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`Exhibits 1, 2, and 6 contain Fitbit confidential business information. Exhibit 1 is a copy of
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`the Declaration of Gilles Boccon-Gibod, a Senior Staff Software Engineer at Google who was a
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`Fitbit employee until Google recently acquired Fitbit. Exhibit 2 is the deposition transcript of
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`Fitbit’s technical expert, Dr. Joseph Paradiso. Exhibit 6 is an excerpted copy of Defendant Fitbit,
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`Inc.’s Supplemental Responses And Objections To Plaintiff’ Philips North America LLC’s
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`Interrogatories (Nos. 1-11). These exhibits each contain confidential information regarding the
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`operation of the accused Fitbit wearable devices, application, and servers, and that has been
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`designated Confidential under the Protective Order.
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`Exhibits 2 and 3 contain third party confidential business information. In response to a
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`subpoena from Fitbit, third party Icon Health & Fitness (“Icon”) produced documents related to
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`the design and operation of several of their products and services, and marked these documents
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`Confidential under the Protective Order. Icon likewise designated the deposition transcript of their
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`corporate representative in response to Fitbit’s subpoena, Ms. Colleen Logan, Confidential under
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`Case 1:19-cv-11586-FDS Document 368 Filed 03/30/22 Page 3 of 5
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`the Protective Order. Exhibit 3 is Ms. Logan’s Confidential deposition transcript. Exhibit 2, Dr.
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`Paradiso’s deposition transcript has also been designated Confidential under the Protective Order
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`because it contains discussion of the Icon documents and Logan transcript designated Confidential
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`under the Protective Order by Icon.
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`Additionally, the Opposition and RSUF contain discussions of the aforementioned Fitbit
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`Confidential information and source code, the aforementioned Icon Confidential information, and
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`various other Fitbit Confidential information and source code that were discussed in Philips’
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`opening brief and responded to in the Opposition and RSUF. Fitbit has filed a redacted version of
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`its Opposition, which redacts, to the least extent possible, discussions of the aforementioned Fitbit
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`Confidential information and source code—public disclosure of which would risk competitive
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`harm to Fitbit—and the aforementioned Icon Confidential information.
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`For the foregoing reasons, Fitbit respectfully requests that the Court permit Fitbit to file a
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`public redacted version of the Opposition. Further, Fitbit respectfully requests that the Court
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`permit Fitbit to file un-redacted copies of the Opposition and RSUF, along with Exhibits 1-3 and
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`6 under seal. Fitbit further requests that the documents remain impounded until further Order by
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`the Court, and that upon expiration of the impoundment, the documents be returned to Fitbit’s
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`counsel.
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`Case 1:19-cv-11586-FDS Document 368 Filed 03/30/22 Page 4 of 5
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`Dated: March 30, 2022
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`By:
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`/s/ David J. Shaw
`David J. Shaw (pro hac vice)
`dshaw@desmaraisllp.com
`DESMARAIS LLP
`1701 Pennsylvania Ave., NW, Suite 200
`Washington, D.C. 20006
`Telephone: (202) 451-4900
`Facsimile: (202) 451-4901
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`Leslie M. Spencer (pro hac vice)
`lspencer@desmaraisllp.com
`Karim Z. Oussayef (pro hac vice)
`koussayef@desmaraisllp.com
`Brian D. Matty (pro hac vice)
`bmatty@desmaraisllp.com
`Henry L. Ard (pro hac vice)
`hard@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
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`Ameet A. Modi (pro hac vice)
`amodi@desmaraisllp.com
`DESMARAIS LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 573-1900
`Facsimile: (415) 573-1901
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`Gregory F. Corbett (BBO #646394)
`gcorbett@wolfgreenfield.com
`Alexandra K. Kim (BBO #707361)
`akim@wolfgreenfield.com
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 646-8000
`Facsimile: (617) 646-8646
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`Attorneys for Defendant Fitbit LLC
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`Case 1:19-cv-11586-FDS Document 368 Filed 03/30/22 Page 5 of 5
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`CERTIFICATE PURSUANT TO LOCAL RULE 7.1(A)(2)
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`The undersigned hereby certifies that counsel for Fitbit conferred with counsel for Philips
`and attempted in good faith to resolve or narrow the issues in dispute on March 30, 2022.
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`/s/ David J. Shaw
`David J. Shaw
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`CERTIFICATE PURSUANT TO LOCAL RULE 37.1
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`The undersigned hereby certifies that counsel for Fitbit has complied with the provisions
`of Local Rule 37.1.
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`/s/ David J. Shaw
`David J. Shaw
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system,
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`which serves counsel for other parties who are registered participants as identified on the Notice
`of Electronic Filing (NEF). Any counsel for other parties who are not registered participants are
`being served by first class mail on the date of the electronic filing.
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`Dated: March 30, 2022
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`/s/ Alexandra K. Kim
`Alexandra K. Kim
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