Nike, Inc. v. Lululemon USA Inc.
- Subramanian
- 1:23-cv-00771
- U.S. District Court · Southern District of New York
- 3
In Nike v. Lululemon, Judge Subramanian denied Lululemon’s request for a second deposition of Nike’s technical expert because it did not show extraordinary complexity.
Lululemon USA Inc. was not permitted, by this ruling, to conduct a second deposition of Nike’s technical expert under the request addressed by the motion. The order preserved the default rule of one deposition per expert.
What happened
Nike, Inc. v. Lululemon USA Inc. concerns Lululemon’s request to depose Nike’s technical expert, Dr. Christopher M. Pastore, twice. The parties agreed that the usual rule allows only one deposition of each expert, but Lululemon argued that this case was unusually complex.
Nike opposed the request. It argued that the case involved three patents concerning knitted footwear, eight accused products, and an expert report whose large page count was partly due to photographs and other non-substantive material. Nike also argued that Lululemon’s cited examples involved much more complex cases.
Judge Arun Subramanian denied Lululemon’s motion, finding that Lululemon had not shown enough reason to depart from the usual one-deposition rule. The clerk was directed to terminate the motion at ECF No. 123.
The detailed version
- Nike, Inc. v. Lululemon USA Inc. · No. 1:23-cv-00771
- Subramanian
- May 6, 2024
Background
Lululemon asked for permission to conduct two depositions of Nike’s technical expert, Dr. Christopher M. Pastore. The request concerned discovery, the pretrial process through which parties obtain information and question witnesses. The parties agreed that Federal Rule of Civil Procedure 30(a)(2)(A)(i) establishes a default rule of one deposition per witness, but disputed whether this case was complex enough to justify a second deposition.
Nike opposed the request. In its opposition, Nike characterized the case as an ordinary patent case involving three patents related to knitted footwear, challenges to the validity of two patents, and eight accused products. Nike also argued that the reported length of Dr. Pastore’s infringement report was overstated because more than half of the page count consisted of items such as a table of contents, his curriculum vitae, a list of materials, and photographs. Nike further argued that the length and scope of Lululemon’s expert reports did not justify a second deposition of Nike’s expert.
The Parties’ Arguments
Nike argued that courts generally allow only one deposition of an expert in comparable patent-infringement cases. It distinguished the cases cited by Lululemon, asserting that one involved a very complex securities class action and another involved an unusually complicated case with extensive discovery proceedings and expert testimony on subjects beyond infringement and patent validity.
Nike also argued that the advisory materials cited by Lululemon did not support a second deposition because later amendments to the federal rules changed the treatment of expert reports and depositions.
Ruling
Judge Arun Subramanian denied Lululemon’s motion. The order states that Lululemon had not shown a sufficient basis to depart from the default rule allowing one deposition per expert. The clerk was directed to terminate the motion at ECF No. 123.
This was a discovery ruling about the number of depositions permitted; the order did not decide the parties’ patent-infringement or patent-validity claims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.