In Adidas America, Inc. v. Thom Browne, Inc., No. 24-1510 (2d Cir. Apr. 29, 2026), the Second Circuit affirms denial of a motion for relief from a final judgment under Fed. R. Civ. P. 60(b)(2) and (b)(3), in a case where the plaintiff learned belatedly that the defendant failed to disclose several relevant emails during discovery.
“In 2021, adidas sued Thom Browne for trademark infringement, trademark dilution, and unfair competition over [Thom Browne’s] use of the Four-Bar and Grosgrain [a pattern of red, white and blue stripes] in a new line of activewear.” Adidas alleged that these designs infringed on its globally recognized three-stripe mark. “The case went to trial, and the jury heard from sixteen witnesses and saw over four hundred exhibits before finding Thom Browne not liable on all counts.” Adidas appealed the verdict and lost.
Only after trial did adidas learn about a string of internal emails that Thom Browne failed to produce in discovery that specifically concerned the similarities between its mark and the adidas three-stripe mark. Adidas moved in the district court to reopen the judgment based on the newly disclosed evidence.
The district court conducted an evidentiary hearing to determine why the emails were not produced and whether their omission materially influenced the trial.
It ultimately found that the emails probably would not have changed the verdict, as required by Rule 60(b)(2), because the jury already had even more direct evidence before it that it could have credited on the intent issue.
Moreover, “the district court determined that a negligent discovery violation is sufficient to constitute ‘misconduct’ under Rule 60(b)(3).” Rule 60(b)(3) provides that a court may relieve a party from a final judgment for “fraud . . . , misrepresentation, or misconduct by an opposing party.” It found that the emails were not produced in discovery due to a tagging error in the review process, at most a negligent rather than an intentional act.
The Second Circuit affirms. It finds no abuse of discretion on the Rule 60(b)(2) ruling. “The district court had the benefit of observing the trial. It did not err in finding that the newly discovered evidence probably would not have changed the outcome of trial, so adidas was not entitled to relief under Rule 60(b)(2).”
On the Rule 60(b)(3) issue, it is presented with a legal issue of first impression. “This Court has not addressed the meaning of ‘misconduct’ under Rule 60(b)(3) or the level of culpability it requires. Based on the text and structure of the Federal Rules of Civil Procedure and historical evidence, we conclude that ‘misconduct’ does not include a merely negligent discovery violation.”
The panel draws an analogy to the discovery sanctions rule, Fed. R. Civ. P. 37.
“In particular, Rule 37, which governs discovery sanctions, supports the view that discovery-related ‘misconduct’ involves more than mere negligence. Sanctions comparable to vacatur of a final judgment under Rule 37 require heightened culpability . . . . As with sanctions under Rule 37, an important reason that ‘misconduct’ under Rule 60(b)(3) requires a higher degree of culpability is the severity of the remedy—i.e., setting aside a final judgment.”
“Here, vacating the jury’s verdict would deprive Thom Browne of the benefit of a judgment obtained after trial and appeal, causing it to operate under a cloud of legal liability and forcing it to expend additional resources defending the action again. Although intentional discovery violations may well warrant such harsh consequences, mere negligence does not.”
The panel also affirms the district court’s finding that the tagging error that blocked production of the emails was negligent.
“Here, the district court concluded that [the defense firm] did not act negligently because (1) it was reasonable for the paralegal to assume that the e-discovery services provider followed her instructions to produce a saved search with all potentially privileged documents and (2) an associate conducted a separate quality-control check to ‘ensure no other documents fell through the cracks,’ which showed that [the firm] attempted to meet its discovery obligations.”
“Because ‘misconduct’ under Rule 60(b)(3) does not encompass merely negligent discovery violations, and Thom Browne’s failure to produce the emails at issue was no more than negligent, adidas is not entitled to relief under Rule 60(b)(3).”
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