OPINION & ORDER - 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ADIDAS AMERICA, INC., a Delaware No. 3:15-cv-01741-HZ

corporation; ADIDAS AG, a foreign

entity; and ADIDAS INTERNATIONAL OPINION & ORDER

MARKETING B.V., a foreign entity,

Plaintiffs,

v.

SKETCHERS USA, INC., a Delaware

corporation,

Defendant.

Stephen M. Feldman

Perkins Coie LLP

1120 N.W. Couch Street, Tenth Floor

Portland, OR 97209

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OPINION & ORDER - 2

R. Charles Henn Jr.

Charles H. Hooker III

Nichole D. Chollet

Kilpatrick Townsend & Stockton LLP

1100 Peachtree Street, Suite 2800

Atlanta, GA 30309

Attorneys for Plaintiffs

Kenneth R. Davis II

Parna A. Mehrbani

Lane Powell PC

601 SW Second Avenue, Suite 2100

Portland, Oregon 97204

Daniel M. Petrocelli

Mark A. Samuels

Jordan Raphael

O’Melveny & Myers LLP

5400 South Hope Street, Suite 1800

Los Angeles, California 90071

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Before the Court is adidas’s motion to strike changes made by Sketchers’s witness Kathy 

Kartalis to her previous deposition testimony. See Pl’s. Mot. to Strike Def’s. Errata Sheet 

[hereinafter “Mot. to Strike”], ECF 123. Kartalis previously testified, in relevant part, about 

Sketchers’s profit and costs as they relate to the disputed footwear in this case. Adidas used 

Kartalis’s testimony to calculate Sketchers’s total profit. Shortly thereafter, Kartalis changed her 

testimony, adding qualifiers to some of her answers. Adidas now seeks to strike those changes on 

the ground that they contradict her previous unambiguous sworn deposition testimony. For the 

reasons discussed below, adidas’s motion is denied.

//

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BACKGROUND

Adidas alleges trademark infringement and other related claims against Sketchers for 

producing and marketing footwear strikingly similar to adidas’s footwear. Adidas seeks, in part, 

disgorgement of Sketchers’s profit as relief for the alleged infringement. In order to calculate 

Sketchers’s profit, on July 27, 2016, Adidas took a Rule 30(b)(6) deposition of Kartalis on a 

variety of topics including “[p]rofits and losses associated with the disputed footwear,” “[a]ll 

costs or expenses related to the manufacture, sale, and distribution of the disputed footwear,” and 

“[a]ny element of cost or deduction Sketchers claims under 15 U.S.C. § 1117.” Henn Decl. Ex. 1 

at 9, ECF 124. During the deposition, opposing counsel used three separate documents produced 

by Sketchers, each titled “US Landed Total,” to question Kartalis about how she calculated 

Sketchers’s profit and costs. See Raphael Decl. Exs. 2–5, ECF 128. Kartalis explained that the 

documents reflected “landed costs” of the disputed footwear, which includes “the import duty, 

plus the freight – the freight rate” and the cost of manufacturing the disputed footwear. Id. Ex. 2

at 23–24. Kartalis testified that the documents may have disclosed only gross profit rather than 

net profit. Id. at 18–21. Sketchers’s counsel responded that “we will follow up and find out if it’s 

gross or net revenues. Let’s assume for the moment that it’s gross revenues, which you said.” Id.

at 20.

On September 16, 2016, adidas’s financial expert John Plumpe submitted his opening 

report calculating Sketcher’s profit. Henn Decl. Ex. 4. Plumpe testified that he relied upon 

Kartalis’s deposition and the “US Landed Total” documents to make his report. Id. at 29. Plumpe 

calculated that Sketchers’s total net profit from the disputed footwear during the relevant period 

was approximate $4.6 million. Id. at 30. On the same day, Sketchers’s financial expert William 

Ackerman submitted his report on the same topic. Raphael Decl. Ex. 6. Ackerman calculated that 

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Sketchers’s net profit from the disputed footwear was $1,937,680. Id. at 3. Ackerman relied on 

Kartalis’s deposition and accompanying documents as well as three additional sources that 

Plumpe did not consider: Sketchers’s overhead costs; general and administrative expenses; and 

income tax. Id. at 5–7.

On September 29, 2016, Kartalis submitted her errata sheet containing eighteen total 

changes to her deposition testimony. Raphael Decl. Ex. 7. The changes at issue involve Kartalis

adding qualifiers to several of her answers using the phrases “for landed costs” or “to determine 

gross profit.” Id. For example, adidas’s counsel asked: “Exhibit 58 contains all of the costs that 

Sketchers incurred in connection with the Onix shoe; correct?” Kartalis originally replied 

“Correct.” Id. at 2. She then modified that answer in her errata sheet to “Correct, for landed 

costs.” Id.

On October 14, 2016, Plumpe submitted his rebuttal report, attacking Ackerman’s report 

on the grounds that it relied on improper expenses to calculate a low net profit. Raphael Decl. 

Ex. 8 at 3, 6–7. On January 3, 2017, Sketchers took a supplemental deposition of Plumpe. 

Raphael. Supp. Decl. Ex. 1, ECF 129-1. Plumpe testified that adidas did not include Kartalis’s

errata sheet in the list of documents it provided to him to make his rebuttal report. Id. at 5–6.

Plumpe further testified that, after reviewing the errata sheet, it did not affect his calculation of 

profit. Id. at 7–8.

STANDARDS

Rule 30(e) of the Federal Rules of Civil Procedure permits a deponent to review her 

testimony and make “changes in form or substance.” Fed. R. Civ. P. 30(e). This rule permits 

corrective and not contradictory changes. See Humbleton Bros. Lumber Co. v. Balkin Enters., 

Inc., 397 F.3d 1217, 1225–26 (9th Cir. 2005). The Ninth Circuit recognizes a “sham rule”

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whereby the party may move to strike corrections if they constitute an attempt to manufacture an 

issue of material fact to avoid summary judgment. Id. at 1224–25. To determine whether Rule 

30(e) corrections are prohibited tactical attempts to evade summary judgment, courts can 

consider: “circumstances including the number of corrections, whether the corrections 

fundamentally change the prior testimony, the impact of the corrections on the cases (including 

whether they pertain to dispositive issues), the timing of the submission of corrections, and the 

witness’s qualifications to testify.” Karpenski v. Am. Gen. Life Companies, LLC, 999 F. Supp. 

2d. 1218, 1224 (W.D. Wash. 2014). “Even where the court finds that errata are not shams, the 

court may still strike portions that constitute contradictory rather than corrective changes.” Id.

DISCUSSION

Generally, the “sham” rule has been applied in the summary judgment context; however, 

corrections may constitute shams in other contexts as well. In this case, adidas’s alleges that 

Kartalis’s corrections were made for the “sham” purpose of undermining Plumpe’s report. The 

parties’ profit calculations differ by more than $2.6 million dollars and whether Kartalis’s

corrections are stricken may have a bearing on the issue of damages at a later stage in this case.1

The Court finds that Kartalis’s clarifications were made for corrective and not 

contradictory purposes. Kartalis’s errata sheet contains sixteen corrections designated as 

clarifications. Raphael Decl. Ex. 7. As discussed above, most of those corrections added the 

qualifiers “landed costs” and “gross profit” to several of Kartalis’s answers. When the 

corrections are read in context of the surrounding portions of the deposition, it becomes apparent 

that there was some confusion on Kartalis’s part as to whether the “US Landed Costs” 

documents accounted for gross or net profit. Further, adidas’s counsel assumed that the costs 

were gross, informed Kartalis that they would “follow up and find out if it’s gross or net 

 

1 Adidas is not disputing the validity of Ackerman’s report in this motion.

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revenues,” and told Kartalis that she would have an opportunity to correct the deposition 

transcript. Raphael Decl. Ex. 2 at 20.

Regarding the timing of the submission, Kartalis submitted her errata sheet within the 

parties’ agreed upon time frame and two weeks before Plumpe submitted his rebuttal report. 

Plumpe would have had an opportunity to respond to the errata sheet if adidas had produced it 

for him. In any event, Plumpe stated that he based his profit calculations solely on what adidas 

gave to him and that Kartalis’ errata sheet had no effect on his calculations. In sum, the Court 

finds that Kartalis’ corrections were made as part of a good faith effort to clarify her deposition 

testimony and her errata sheet was not submitted for tactical “sham” purposes. “Landed costs” 

and “gross profit” came up several times during Kartalis’s deposition and her corrections adding 

those clarifications are consistent with, rather than contradictory to, her deposition testimony. 

CONCLUSION

Adidas’s motion to strike Kartalis’s errata sheet [123] is DENIED. Relatedly, Sketchers’s

unopposed motion to supplement the record relating to adidas’s motion [129] is GRANTED.

Dated this day of ______________________, 2017. 

MARCO A. HERNÁNDEZ

United States District Judge

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