Adidas 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 B ROWNE , 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: C ABRANES, 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

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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. C HARNES, 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.
A LEXANDRA A.E. S HAPIRO, 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).
6 Because 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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