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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

adidas America, Inc., et al., ) 3:15-cv-02113-SI

)

 Plaintiffs, )

 ) 

 vs. ) September 22, 2016

)

TRB Acquisitions, LLC, )

et al., )

)

 Defendants. ) Portland, Oregon

(Telephonic Motion Hearing)

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE MICHAEL H. SIMON

UNITED STATES DISTRICT COURT JUDGE

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APPEARANCES

FOR THE PLAINTIFFS: R. Charles Henn, Jr.

 Nichole D. Chollet

 Charles H. Hooker, III

 Kilpatrick Townsend & Stockton, LLP

 1100 Peachtree Street NE, Suite 2800 

 Atlanta, GA 30309

 Stephen Feldman

 Perkins Coie, LLP

 1120 NW Couch Street, Tenth Floor

 Portland, OR 97209

FOR THE DEFENDANTS: Allen G. Reiter

 Michelle M. Marsh

 Alissa G. Friedman

 Arent Fox LLP

 1675 Broadway

 New York, NY 10019

 Parna A. Mehrbani

 Lane Powell, PC

 601 SW Second Avenue, Suite 2100

 Portland, OR 97204

COURT REPORTER: Dennis W. Apodaca, RDR, RMR, FCRR, CRR

 United States District Courthouse

 1000 SW Third Avenue, Room 301

 Portland, OR 97204

 (503) 326-8182

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(September 22, 2016)

P R O C E E D I N G S

(In chambers; telephone conference:)

THE CLERK: Your Honor, this is the time set for a

telephone conference in Case No. 15-cv-2113-SI, adidas America,

Inc., versus TRB Acquisitions, LLC. 

Counsel, there is a court reporter present, so please

be sure to state your name before you speak. Here is

Judge Simon.

THE COURT: Good morning, everyone. 

COUNSEL: Good morning, Your Honor. 

THE COURT: I have read Ms. Friedman's e-mail dated

September 19th at 8:56 p.m., and I have read Mr. Hooker's

e-mail dated September 20th at 9:39 a.m., as well as the

attachments. 

Have I received everything?

MR. HENN: Your Honor, this is Charlie Henn. You

have received everything that the plaintiffs submitted.

THE COURT: Thank you.

MR. REITER: Your Honor, this is Allen Reiter. You

have received everything we've submitted.

THE COURT: Very good. Thank you. 

Let me ask, and whoever wishes to speak first may;

just identify yourself. What happened yesterday,

September 21st? Were there any depositions taken by plaintiffs

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of any of the newly joined defendant-licensees?

MR. HENN: Your Honor, this is Charlie Henn. 

No, we did not take the deposition. We received an

e-mail from Mr. Reiter on Tuesday indicating that because this

hearing was set for today, the witness who was subpoenaed to

appear yesterday would not be made available, and so we

canceled the deposition, the court reporter, et cetera.

THE COURT: Thank you. 

Let me ask, and whoever wishes to respond, may.

Have any the issues raised in either Ms. Friedman's

e-mail or Mr. Hooker's e-mail been resolved?

MR. REITER: Your Honor, this is Allen Reiter. Some

of the issues raised in the e-mail submitted by Mr. Hooker have

been resolved or are in the process of being resolved. So we

can limit the scope of the discussion with respect to the

issues that were raised by Mr. Hooker.

With respect to the deposition of Mr. King, while the

plaintiffs maintain that we had noticed his deposition solely

for purposes of harassment and that he is an apex witness, that

was not our motivation in noticing him.

We had been informed and received copies of e-mails

from the person whom I believe is the president of Modell's,

who we understood is a personal friend of Mr. King, in which

Modell's brought our mark to the attention of Mr. King. We are

involved in a litigation in the Southern District of New York,

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Exhibit U - Page 1 of 2

Case 3:15-cv-02113-SI Document 132-21 Filed 10/11/16 Page 1 of 2
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accommodation from the Court.

MR. REITER: Understood, Your Honor.

THE COURT: Okay. So is it possible for the

defendants to file their reply in support of their motion to

compel by October 7th? That basically is after Rosh Hashanah

and before Kol Nidre.

MR. REITER: I am looking at a calendar.

THE COURT: That would be Friday, the 7th. File it

before sundown. Can you do that?

MR. REITER: We will do it, Your Honor.

THE COURT: Thank you very much. The reply will be

due October 7th.

MR. HENN: Your Honor, this is Charlie Henn. 

THE COURT: Yes.

MR. HENN: As we raised in the e-mail, the defendants

also have failed to produce mass quantities of responsive

information. I would propose that we file cross-motions for

summary judgment on the identical schedule so that you can

resolve all of those issues at once.

THE COURT: All right. 

Any objection to that, Mr. Reiter?

MR. REITER: I'm not -- Your Honor, I don't

understand what he means by "cross-motions for summary

judgment."

THE COURT: Well, I think what he is right now

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talking about --

MR. HENN: I'm sorry, Your Honor. I meant

cross-motions to compel.

THE COURT: Cross-motions to compel on the same

schedule.

MR. REITER: Your Honor, I would suggest that the

better practice would be -- before they do that -- is for them

to take the 30(b)(6) notice that they have finally given us

with respect to our document production and retention.

THE COURT: Well, I'll tell you what, in response to

this, we know that defendant wants to file a motion to compel.

We have the schedule, although I do want to set an oral

argument on that.

Mr. Henn, with respect to the plaintiffs' motion to

compel, you have leave to file a motion to compel whenever you

want, so go ahead and file your motion to compel whenever you

are ready.

All right. Do you all want to have oral argument on

defendants' motion to compel by telephone or in person?

MR. HENN: Your Honor, I am based in Atlanta.

Mr. Reiter is based in New York. My preference would be to do

it by phone. But if it would be easier for Your Honor to do it

in person, I am happy to come to Oregon.

THE COURT: I'm fine with phone.

MR. REITER: Does the Court have a preference?

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THE COURT: No, I do not. Whatever you all want.

MR. REITER: Your Honor, in that regard, doing it by

phone is obviously a lot more convenient.

THE COURT: Okay. I'm starting a trial on the 11th.

That will probably go for about two weeks, and so I will need

to give you an 8:00 a.m. Pacific oral argument time date, and I

want to make sure I've read everything.

How does a telephone conference to deal with

defendants' motion to compel on October 17th -- that's a

Monday -- at 8:00 a.m. Pacific Time work for you all?

MR. HENN: This is Charlie Henn. That works for us.

MR. REITER: Your Honor, this is Allen Reiter. It

works for us.

THE COURT: Mary, that works for us?

THE CLERK: Yes.

THE COURT: All right. That's when that will be. 

If and when we have a motion to compel filed by

plaintiff, I'll take a look at it. Then probably by minute

order we will be back in touch with you on a briefing schedule.

If it is filed soon enough, we will probably address that on

the 17th as well, but we will see.

With respect to the depositions of the third-party

licensees, I don't see any realistic option other than just

saying that those shall be taken between October 14th and

November 11th. If it turns out that plaintiff needs additional

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discovery based upon what is learned in those depositions, I

certainly will -- well, I plan to allow it. And if defendant

does not prevail on its motion to compel, that may or may not

be reciprocal discovery. It may be one-sided. I want to see,

really, you know, who is behaving appropriately, who is not.

But the depositions of the licensees will have to be

done between October 14th and November 11th. But as I said, if

you find that you need additional discovery from that, I will

probably allow it. And depending upon how defendants' motion

turns out, it may or may not be reciprocal.

It looks like Mr. King is off the agenda. 

I think that takes care of the European-based

custodians; the licensee depositions. 

I do want to say about the 30(b)(6) in a moment. 

Then with respect to redactions, it does sound like

you might be able to resolve the problem tomorrow. Let me add

the following just in case you can't resolve it: If anything

is redacted based upon attorney-client privilege, there needs

to be a privilege list that specifically describes why those

things are being redacted.

If there are redactions that are not based on

attorney-client privilege or work product privilege -- I'll

treat it the same way -- then there needs to be a separate

document explaining the legal basis for any redactions based on

things other than attorney-client privilege or work-product

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Exhibit U - Page 2 of 2

Case 3:15-cv-02113-SI Document 132-21 Filed 10/11/16 Page 2 of 2