America, Inc. v. Thom Browne, Inc.

24-1510

adidas America, Inc. v. Thom Browne, Inc.

United States Court of Appeals

for the Second Circuit

August Term 2025

Argued: October 28, 2025

Decided: April 29, 2026

No. 24-1510

ADIDAS AMERICA, INC., ADIDAS AG,

Plaintiffs-Appellants,

v.

THOM BROWNE, INC.,

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of New York

No. 21-cv-5615

Jed S. Rakoff, Judge.

Before: CABRANES, PARK, and ROBINSON, Circuit Judges.

Adidas America, Inc., sued Thom Browne, Inc., for trademark

infringement, trademark dilution, and unfair competition. A jury

found Thom Browne not liable, but adidas later learned that Thom

Browne had failed to disclose several relevant emails during

discovery. Adidas moved for relief from the final judgment under

Federal Rules of Civil Procedure 60(b)(2) and (b)(3), which the district

court (Rakoff, J.) denied. We agree with the district court that adidas

failed to meet its burden under Rule 60(b)(2) to show that the newly

discovered evidence probably would have changed the verdict.

Moreover, although Thom Browne’s failure to disclose the emails was

negligent, a negligent discovery violation is not “misconduct” under

Rule 60(b)(3), so adidas was not entitled to relief. We thus AFFIRM

the order of the district court.

ADAM H. CHARNES, Kilpatrick Townsend & Stockton

LLP, Dallas, TX (R. Charles Henn Jr., K. Bradford Sears,

Kilpatrick Townsend & Stockton LLP, Atlanta, GA, on the

brief), for Plaintiffs-Appellants.

ALEXANDRA A.E. SHAPIRO, Shapiro Arato Bach LLP, New

York, NY (Julian S. Brod, Christopher Johnson, Shapiro

Arato Bach LLP, New York, NY; Robert T. Maldonado,

Wolf, Greenfield & Sacks, PC, New York, NY; John L.

Strand, John L. Welch, Wolf, Greenfield & Sacks, PC,

Boston, MA; Harley I. Lewin, LewinConsult LLC,

Portland, ME, on the brief), for Defendant-Appellee.

PARK, Circuit Judge:

Adidas America, Inc., sued Thom Browne, Inc., for trademark

infringement, trademark dilution, and unfair competition. A jury

found Thom Browne not liable, but adidas later learned that Thom

Browne had failed to disclose several relevant emails during

discovery. Adidas moved for relief from the final judgment under

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Federal Rules of Civil Procedure 60(b)(2) and (b)(3), which the district

court denied. We agree with the district court that adidas failed to

meet its burden under Rule 60(b)(2) to show that the newly

discovered evidence probably would have changed the verdict.

Moreover, although Thom Browne’s failure to disclose the emails was

negligent, a negligent discovery violation is not “misconduct” under

Rule 60(b)(3), so adidas was not entitled to relief. We thus affirm the

order of the district court.

I. BACKGROUND

A. Factual Background

Adidas is a sportswear manufacturer known for its Three-

Stripe Mark:

Adidas’s Three-Stripe Mark

Thom Browne is a luxury apparel company that uses, among

its motifs, the Four-Bar Signature, which consists of four wide

horizontal bars, and the Grosgrain, “a pattern of red, white and blue

stripes.” Adidas Am., Inc. v. Thom Browne, Inc., 742 F. Supp. 3d 352,

354 (S.D.N.Y. 2024).

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Thom Brown’s Grosgrain (left) and Four-Bar Signature

In 2021, adidas sued Thom Browne for trademark

infringement, trademark dilution, and unfair competition over its use

of the Four-Bar and Grosgrain in a new line of activewear. 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 then unsuccessfully appealed. 1

While the appeal was pending, Thom Browne produced

several new emails in a separate litigation between the two companies

in the United Kingdom. The emails included the following:

1. December 2016 email exchange between Emily Maturo,

a Senior Men’s Account Manager at Thom Browne and

Incorp S.a.L., a distributor in Switzerland that purchased

product from Thom Browne for retail stores in Asia.

Discussing the display of Thom Browne’s clothes,

Maturo states: “We try to avoid rows of 4 bar armband

on the racks so as to not look like Adidas. We’ve

therefore removed some styles from your original

orders.”

2. November 2018 email exchange between Thi Wan, then

Thom Browne’s Head of Menswear, and Mr. Thom

1 See adidas Am., Inc. v. Thom Browne, Inc., No. 23-166, 2024 WL

1953594 (2d Cir. May 3, 2024).

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Browne himself. In the exchange, the two discuss

design choices for formalwear and accessories that Thom

Browne was creating for FC Barcelona (“FCB”), the

Spanish soccer (football) club. In the initial email, Wan

states: “I wanted to hear your thoughts on the usage of

4bar for FCB dressing for players. I wanted to raise a

flag now from me before other teams start bombarding

you with this concern. As Adidas has such a big

presence in the sporting world, it is inevitable that our

4bar in white be read as adidas stripes, especially on

accessories. Or would you also consider RWB?.” 2

3. December 2019 email exchange among Kelly Connor,

Director of Brand Relations at Thom Browne, Tomaso

Galli, Vice President of Marketing and Communication

at Thom Browne, and Mr. Thom Browne. The

discussion concerns the same formalwear and

accessories for FCB that were being discussed in Email 2.

In the final email in the chain, Galli states, “They [FCB]

are not comfortable with any four bars, which in their

view is too much in the spirit of Adidas.”

4. August 2019 email exchange between Wan and Browne.

The discussion concerns design choices for accessories

that Thom Browne was designing for FCB. In his initial

email, Wan states: “There is a 4bar range and RWB

range in case you feel that 4bar is too loud and ‘adidas’

in the football context.” In response, Browne states:

“[I] thought [Galli] has already said that we shouldn’t

use the four bar because of adidas … please confirm with

matt and then we can proceed … maybe it would be safer

to just make the rwb stripes bigger and proceed …”

2 In context, RWB appears to mean “red, white, and blue” stripes.

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Finally, Wan replies back, “You’re right on the 4bar.

We should and will focus on the RWB.”

Id. at 355-56 (cleaned up).

B. Procedural History

After learning of the unproduced emails, adidas moved for a

new trial under Federal Rules of Civil Procedure 60(b)(2) and (b)(3).

The district court held an evidentiary hearing to determine why the

emails were not produced. Two paralegals at Wolf Greenfield—

Thom Browne’s law firm—testified. The district court also

permitted adidas to depose two Wolf Greenfield associates who

worked on the case, as well as a representative of Thom Browne’s e-

discovery services provider, Consilio.

The district court found that the non-production of the emails

resulted from the following events. The parties first agreed that

Thom Browne would search the electronically stored information of

nine custodians. Wolf Greenfield collected over 1.4 million

documents from these custodians, which it reduced to a set of

presumptively responsive documents. It then used search terms to

identify potentially privileged documents. The documents

containing those terms were to be reviewed by counsel before being

produced or withheld and listed on Thom Browne’s privilege log. A

Wolf Greenfield paralegal emailed Consilio with instructions to

create “a saved search for ALL potentially privileged documents that

have not already been produced by Thom Browne so that we will

have one search to work with when we go to do our privilege review.”

Adidas, 742 F. Supp. 3d at 357 (cleaned up). Consilio created the

requested search, noting that it had run the search terms across all

documents “that are not produced, not coded for responsiveness and

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not coded for privilege.” Id. (cleaned up). Wolf Greenfield used

that saved search to conduct its privilege review.

A week before emailing Consilio, however, the Wolf Greenfield

paralegal had apparently “carried out a mass edit on some subset of

documents that hit on the search term ‘adidas’—including the four

emails here at issue—changing the responsiveness, privilege and

confidentiality fields to ‘needs further review.’” Id. at 358. As a

result, those documents were not included in Consilio’s saved search,

which captured only documents with no coding in the responsiveness

or privilege fields. They were thus not part of the initial privilege

review. They were also not caught in a subsequent “quality control”

check, in which a Wolf Greenfield associate was supposed to review

all documents marked “needs further review” to ensure nothing

slipped through the cracks. Id. at 368-69.

The district court ultimately denied adidas’s Rule 60(b) motion.

First, it determined that adidas had failed to meet its burden of

showing that the emails probably would have changed the verdict

under Rule 60(b)(2) because they did not implicate “the central issues

in this case as they actually played out at trial.” Id. at 361. In

particular, the district court noted that the jury was unpersuaded by

more direct evidence of consumer confusion that had been presented

at trial. Second, the district court determined that a negligent

discovery violation is sufficient to constitute “misconduct” under

Rule 60(b)(3). But it found that Thom Browne’s counsel did not act

negligently in failing to produce the emails, so it did not commit

misconduct.

Adidas appeals from the district court’s denial of its Rule 60(b)

motion.

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II. DISCUSSION

Adidas argues that it was entitled to relief from the jury’s

verdict under Rule 60(b)(2) for “newly discovered evidence” or

60(b)(3) for Thom Browne’s “misconduct.” We disagree. Adidas’s

argument under Rule 60(b)(2) fails because the unproduced emails

probably would not have changed the verdict. And its argument

under Rule 60(b)(3) fails because “misconduct” does not encompass

merely negligent discovery violations like Thom Browne’s. We thus

affirm the district court’s denial of adidas’s Rule 60(b) motion.

A. Legal Standards

“We review questions of law de novo and a district court’s

[decision on] a Rule 60(b) motion for abuse of discretion. A district

court abuses its discretion if it bases its ruling on an erroneous view

of the law or on a clearly erroneous assessment of the evidence.” Ins.

Co. of N. Am. v. Pub. Serv. Mut. Ins. Co., 609 F.3d 122, 127 (2d Cir. 2010)

(cleaned up). Whether the district court erred in interpreting Rule

60(b)(3) is a question of law, which we review de novo. Cf. Hayward

v. IBI Armored Servs., Inc., 954 F.3d 573, 575 (2d Cir. 2020).

“[T]he rule in this circuit has long been to consider [rulings on

negligence] de novo” because such rulings “are ultimately conclusions

of law.” In re M/V MSC Flaminia, 72 F.4th 430, 446 (2d Cir. 2023).

But “[i]n most cases, negligence determinations turn upon factual

findings subject to clear-error review.” In re Energetic Tank, Inc., 110

F.4th 131, 152 (2d Cir. 2024). We will thus disturb a district court’s

negligence determination only if it errs in “interpreting applicable

law” or clearly errs “in finding material facts.” Id. at 152-53.

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B. Rule 60(b)(2)

Rule 60(b)(2) states that a court may relieve a party from a final

judgment for “newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move for a new

trial under Rule 59(b).” ”The movant must demonstrate that (1) the

newly discovered evidence was of facts that existed at the time of trial

or other dispositive proceeding, (2) the movant must have been

justifiably ignorant of them despite due diligence, (3) the evidence

must be admissible and of such importance that it probably would

have changed the outcome, and (4) the evidence must not be merely

cumulative or impeaching.” United States v. Int’l Bhd. of Teamsters,

247 F.3d 370, 392 (2d Cir. 2001) (cleaned up).

Only the third factor is at issue here—whether the unproduced

emails were “of such importance that [they] probably would have

changed the outcome” at trial. Id. We discern no abuse of

discretion by the district court in denying adidas’s Rule 60(b)(2)

motion based on its conclusion that the emails probably would not

have changed the verdict.

First, the district court correctly found that the emails do not

bear directly on any of the factors for determining whether an

allegedly infringing product created a reasonable likelihood of

confusion. See Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495

(2d Cir. 1961). 3 Adidas asserts that the emails were admissions that

3 Those factors, per the district court’s jury instructions, were: (1)

“the strength of adidas’ Three Stripe Mark”; (2) “the degree of similarity

between adidas’ Three Stripe Mark and Thom Browne’s use of the Four Bar

and/or Grosgrain designs on the Accused products”; (3) “whether the

Accused Products and adidas[’] products compete for the same

consumers”; (4) “whether or not there is evidence that consumers are

actually confused about which company offers the Accused Products”; (5)

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confusion was likely, but likelihood of confusion is an objective

standard, and the emails reflected executives’ opinions about likely

confusion.

Second, more direct evidence of consumer confusion—such as

adidas’s consumer survey—did not persuade the jury, so it is unlikely

that the emails would have made a difference. The emails were not

about the allegedly infringing products or even products in the same

Thom Browne collection (i.e., activewear). Rather, they discussed

formalwear and accessories, which were not at issue in this case.

Third, the emails did not bear on Thom Browne’s main

defenses in this case—i.e., its contentions that adidas wanted to

“own[] all stripe designs” and that Thom Browne and adidas compete

in different markets and sell their products at different price points.

Adidas, 742 F. Supp. 3d at 361-62. Adidas insists that the emails show

that it “did not want to ‘own all stripes,’ but simply address an

arrangement of stripes that Thom Browne officials knew ‘looked like

adidas’ and made consumer confusion ‘inevitable.’” Appellant’s Br.

at 49 (cleaned up). But Thom Browne responds that it would have

made the exact same argument it made at trial, with the exact same

result, if Adidas introduced the emails.

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).

“the quality of the Accused Products relative to adidas’ products bearing

the Three Stripe Mark”; (6) “the degree of care and attention that an

ordinary consumer would use when encountering adidas’ and Thom

Browne’s respective products”; and (7) “whether adidas has shown that

Thom Browne acted in bad faith.” Adidas, 472 F. Supp. 3d at 359-60.

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C. 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.” To prevail under Rule 60(b)(3), a party must

prove the opposing party’s misconduct by clear and convincing

evidence. See Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989).

It must also show that the misconduct interfered with its ability to

present its case fully and fairly. See State St. Bank & Tr. Co. v.

Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004).

1. Mental State Required for Misconduct

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.

We begin with the text of the Rule. The term “misconduct” is

susceptible to different meanings. See, e.g., Misconduct, Black’s Law

Dictionary (12th ed. 2024) (defining “misconduct” as a “dereliction of

duty; unlawful, dishonest, or improper behavior, esp. by someone in

a position of authority or trust”); Misconduct, Merriam-Webster.com

(defining “misconduct” as “mismanagement especially of

governmental or military responsibilities”; “intentional

wrongdoing”; or “improper behavior”). When a term “takes on

different meanings depending on context,” it is proper to “look not

only to the word itself, but also to the statute and the surrounding

scheme” in interpreting it. Dubin v. United States, 599 U.S. 110, 118

(2023) (cleaned up).

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We then turn to context—here, other Federal Rules of Civil

Procedure. 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. When a party fails to preserve electronically stored

information, for example, the most severe sanctions—an adverse

inference instruction, dismissal, or entry of a default judgment—may

be imposed only when “the party acted with the intent to deprive

another party of the information’s use in the litigation.” Fed R. Civ.

P. 37(e)(2); see also Societe Internationale pour Participations Industrielles

et Commerciales, S. A. v. Rogers, 357 U.S. 197, 212 (1958) (“Rule 37

should not be construed to authorize dismissal of this complaint

because of petitioner’s noncompliance with a pretrial production

order when it has been established that failure to comply [was not due

to] willfulness, bad faith, or any fault of petitioner.”).

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. As we have repeatedly emphasized, “final judgments

should not be lightly reopened,” so relief under Rule 60(b) is available

only in “exceptional circumstances.” Nemaizer v. Baker, 793 F.2d 58,

61 (2d Cir. 1986) (cleaned up); see also Terra Firma Invs. (GP) 2 Ltd. v.

Citigroup Inc., 716 F.3d 296, 298 (2d Cir. 2013) (“Absent fundamental

error, we are loath to overturn a jury verdict in a civil case.”). 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,

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mere negligence does not. Put differently, just as a negligent

discovery violation would not support sanctions like dismissal or

default judgment under Rule 37, it likewise would not justify the

“extraordinary judicial relief” of vacating a final judgment under Rule

60(b)(3). Nemaizer, 793 F.2d at 61. If it did, a party could get a new

trial for negligent conduct that typically would merit only a modest

discovery sanction, like cost-shifting, which would be an anomalous

result. 4

Next, historical evidence is consistent with this conclusion.

Before Rule 60(b), courts focused on the presence or absence of

conduct akin to fraud when discussing an opposing party’s

wrongdoing as an equitable ground for relief from a judgment. See,

e.g., Hungerford v. Sigerson, 61 U.S. 156, 161 (1857) (“There is no charge

of fraud . . . nor that, by the contrivance or unfairness of the defendant,

a remedy was not had at law.”). And the Rules Committee’s

proceedings on Rule 60(b)(3) indicate that it drafted the rule with an

eye towards intentional wrongful acts, such as a “deceit practiced on

a party.” Transcript of Proceedings of Advisory Committee on

Rules for Civil Procedure (May 1945), at 517-18; see also Transcript of

Proceedings of Advisory Committee on Rules for Civil Procedure

4 Unsurprisingly, district courts considering a new trial as a

discovery sanction have viewed it as akin to the more severe remedies

authorized under Rule 37. See, e.g., Health All. Network, Inc. v. Cont’l Cas.

Co., 245 F.R.D. 121, 128 (S.D.N.Y. 2007) (“Moreover, a sanction for a

discovery violation as severe as granting a new trial requires that the court

find willfulness, bad faith, or any fault, and that the opposing party has

been seriously prejudiced and that no lesser sanction is sufficient to deter

discovery abuses.” (cleaned up)); Mugavero v. Arms Acres, Inc., 680 F. Supp.

2d 544, 573-74 (S.D.N.Y. 2010) (declining to grant a new trial as a discovery

sanction for a failure to produce documents because the failure was not

sufficiently egregious).

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(March 1946), at 601-02 (noting that Rule 60(b)(3) was meant to deal

with “tricks played by one party upon the other”). Given the

“incorporation of fraud and the like within the scope of the rule,” Fed.

R. Civ. P. 60(b) advisory committee’s note to 1946 amendment, the

most natural understanding of “misconduct” in Rule 60(b)(3) is that—

like fraud—it requires more than mere negligence. See Homaidan v.

Sallie Mae, Inc., 3 F.4th 595, 604 (2d Cir. 2021) (noting that the canon of

noscitur a sociis “instructs us to cabin [a potentially ambiguous term]

such that its scope aligns with that of its listed companions”).

Finally, the cases adidas cites do not persuade us that

“misconduct” includes negligent acts. As the district court

recognized, in most of these cases, “some degree of purposeful

culpability was clearly apparent.” Adidas, 742 F. Supp. 3d at 366 &

nn.14-15 (collecting cases). The only case analyzing the meaning of

“misconduct” relies exclusively on the canon against surplusage,

concluding that “misconduct” cannot require “proof of nefarious

intent” because it would otherwise be redundant with “fraud” and

“misrepresentation.” Anderson v. Cryovac, 862 F.2d 910, 923 (1st Cir.

1988) (cleaned up). But “misconduct” can encompass intentional

acts that do not involve “deception or trickery” (i.e., fraud), Husky Int’l

Elecs., Inc. v. Ritz, 578 U.S. 355, 360 (2016), or the making of a false or

misleading statement (i.e., misrepresentation), see Universal Health

Servs., Inc. v. United States, 579 U.S. 176, 188-89 (2016). 5 So reading

“misconduct” to require more than mere negligence does not violate

the canon against surplusage.

5 For example, a party may attempt to “defeat [an opponent’s]

claim” by filing “meritless motions and pleadings” to induce delay and

cause their opponent to incur needless expenses. Chambers v. NASCO, Inc.,

501 U.S. 32, 38, 57 (1991).

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We thus conclude that a merely negligent discovery violation

does not constitute “misconduct” under Rule 60(b)(3).

2. Thom Browne’s Discovery Violation Was Not Misconduct

To obtain relief under Rule 60(b)(3), adidas must show that

Thom Browne’s non-production of emails was “misconduct.” It

cannot do so because Thom Browne’s discovery violation was only

negligent.

In discovery, negligence is a “failure to conform” to the

standard of “what a party must do to meet its obligation to participate

meaningfully and fairly in the discovery phase of a judicial

proceeding.” Pension Comm. of Univ. of Montr. Pension Plan v. Banc of

Am. Secs., 685 F. Supp. 2d 456, 464 (S.D.N.Y. 2010), abrogated on other

grounds by Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012);

see also Dobbs’ Law of Torts § 126 (2025 ed.) (“[N]egligence is a failure

to exercise care that is reasonable under the circumstances.”). Gross

negligence is the “failure to exercise even that care which a careless

person would use.” Pension Comm., 685 F. Supp. 2d at 464 (cleaned

up); see also Dobbs’ Law of Torts § 140 (defining gross negligence as

“the failure to use even slight care”).

“Discovery is run largely by attorneys, and the court and the

judicial process depend upon honesty and fair dealing among

attorneys,” so negligence in discovery is a low bar. In re Sept. 11th

Liab. Ins. Coverage Cases, 243 F.R.D. 114, 125 (S.D.N.Y. 2007). For

example, courts have found negligence when counsel possessed an

important document but failed to recognize its importance and timely

produce it, see id. at 130; when a party agreed to gather files from

certain custodians but failed to do so, see Harkabi v. SanDisk Corp., 275

F.R.D. 414, 419 (S.D.N.Y. 2010); when a party failed to preserve

documents that it had a duty to preserve even if it innocently thought

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that it did not have such a duty, see Zubulake v. UBS Warbug LLC, 220

F.R.D. 212, 220 (S.D.N.Y. 2003); and when counsel failed to locate and

produce a specifically requested document merely because the

document was not among “the universe of documents” that counsel

deemed “potentially relevant,” Kortright Cap. Partners LP v. Investcorp

Inv. Advisers Ltd., 330 F.R.D. 134, 139 (S.D.N.Y. 2019) (cleaned up).

Here, the district court concluded that Wolf Greenfield 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 Wolf Greenfield attempted to meet its discovery

obligations. Adidas, 742 F. Supp. 3d at 368-69. But even assuming

the former (i.e., that the miscommunication between the paralegal and

the e-discovery services provider is excusable in the context of a

complex discovery process), the record simply does not support the

latter (i.e., that the associate conducted an adequate quality-control

review).

The record indicates that Wolf Greenfield failed to meet its

discovery obligations. The associate testified that she “endeavored to

be careful and review every document that was tagged ‘further

review’”; “it was [her] intent, when she was completing the privilege

log exercise, to review every document that was tagged ‘needs further

review’”; and “she believe[d] her actions matched her intent.” Id.

(emphases added) (cleaned up). The emails at issue were tagged

“needs further review,” but their document histories show that, apart

from two Wolf Greenfield paralegals, no one at the firm ever viewed

them. Neither the district court nor Thom Browne offers any

explanation for that failure. In light of the obvious relevance of the

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emails, Wolf Greenfield’s failure to review or to produce them was

negligent. See, e.g., In re Sept. 11th, 243 F.R.D. at 130 (finding

“inadvertence,” without more, to be an unsatisfactory explanation for

a failure to locate and produce relevant material in counsel’s

possession).

Nonetheless, Wolf Greenfield’s actions were no worse than

negligent. Courts typically find recklessness or gross negligence

when a party fails to take “widely-recognized steps” in complying

with its discovery obligations. Harkabi, 275 F.R.D. at 419. For

instance, courts have found gross negligence when counsel fails to

issue a written litigation hold or timely inspect a client’s computers

and servers. See In re NTL, Inc. Secs. Litig., 244 F.R.D. 179, 198-99

(S.D.N.Y. 2007) (collecting cases). Here, the record shows that the

responsible associate failed to review the four emails at issue, but not

that she failed to review any of the documents tagged “needs further

review.” In other words, Wolf Greenfield took the “widely-

recognized step” of reviewing potentially responsive documents, but

apparently missed some. While its performance was negligent, it

was not worse than that. 6

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).

6Because we conclude that Wolf Greenfield’s actions were no more

than negligent, we need not determine the specific level of culpability (e.g.,

gross negligence or intent) required to support relief under Rule 60(b)(3).

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III. CONCLUSION

In sum, adidas was not entitled to relief under Rule 60(b)(2) or

(b)(3). Under Rule 60(b)(2), the unproduced emails probably would

not have changed the verdict, and, under Rule 60(b)(3), Thom

Browne’s negligent failure to produce the emails was not misconduct.

We thus affirm the district court’s order denying adidas’s Rule 60(b)

motion.

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