`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SKECHERS U.S.A., INC.,
`Petitioner
`
`v.
`
`NIKE, INC.,
`Patent Owner
`
`Case No. IPR2017-00620 (Patent D723,783 S)
`
`DECLARATION OF ELLIOT CHEN IN SUPPORT OF PETITIONER’S
`OPPOSITION TO PATENT OWNER'S MOTION FOR ADDITIONAL
`DISCOVERY
`
`Skechers Ex 1027-p. 1
`Skechers v Nike
`IPR2017-00620
`
`
`
`I, Elliot Chen, declare as follows:
`
`1.
`
`I am an attorney at the law firm of Irell & Manella LLP, counsel of
`
`record for Petitioner Skechers U.S.A., Inc. I am a member in good standing of the
`
`State Bar of California. I have personal knowledge of the facts set forth in this
`
`Declaration and, if called as a witness, could and would testify competently to such
`
`facts under oath.
`
`2.
`
`Filed as Exhibit 1025 is a true and correct copy of NIKE, Inc.'s 2017
`
`Form 10-K, filed with the SEC on July 20, 2017.
`
`3.
`
`Filed as Exhibit 1026 is a compendium exhibit that contains a partial
`
`list of the Nike Free model shoes that Petitioner believes were marketed by Nike
`
`between October 1, 2011 and November 30, 2014. Petitioner is unaware of precise
`
`release dates and end-sale dates of the Nike Free model shoes depicted. Additional
`
`Nike Free model shoes may have been marketed by Nike between October 1, 2011
`
`and November 30, 2014. In connection with NIKE, Inc. v. Skechers U.S.A., Inc.,
`
`No. 3:16-cv-007-PK (D. Or.) (the "District Court Action"), Petitioner purchased
`
`and photographed the: (a) 2011 Nike Free Walk+; (b) 2011 Nike Free TR Fit 2; (c)
`
`2012 Nike Free Gym+; (d) 2012 Nike Free Run +3; (e) 2012 Nike Free Advantage;
`
`(f) 2012 Nike Free Haven; (g) 2012 Nike Free Shield; (h) 2013 Nike Free 5.0; (i)
`
`2013 Nike Free Trainer 3.0; (j) 2013 Nike Free TR Fit 3; and (k) 2013 Nike Free
`
`Trainer 5.0, which are depicted in Exhibit 1026. The remaining images of Nike
`
`Skechers Ex 1027-p. 2
`Skechers v Nike
`IPR2017-00620
`
`
`
`Free model shoes were obtained by searching publically available sources such as
`
`online shoe retailers and shoe blogs for Nike Free model shoes posted between
`
`October 1, 2011 and November 30, 2014.
`
`4.
`
`Petitioner does not have the ability to electronically search emails for
`
`particular images. In order to search for emails that contain particular images, an
`
`attorney would need to open each email transmitting an image and compare the
`
`emailed image with all of the images inset in all of the responsive SMAFs.
`
`5.
`
`Petitioner does not know how much time and cost would be involved
`
`to manually review all emails with images or image attachments for images of
`
`Nike shoes that are inset in SMAFs responsive to Request No. 1.
`
`6.
`
`Petitioner's emails are not located in Petitioner's internal document
`
`storage system.
`
`7.
`
`In the District Court Action, Patent Owner NIKE, Inc. seeks email
`
`discovery from five individuals: Kathy Kartalis, Max Weeks, Marc Rosko, Savva
`
`Teteriatnikov, and Mandy Dimiero.
`
`8.
`
`In its Motion to Compel Production of Documents (Paper 33), Patent
`
`Owner seeks email discovery from four individual custodians: Kathy Kartalis,
`
`Savva Teteriatnikov, Marc Rosko, and Nathalie Aurifonti.
`
`9.
`
`Because she is not among the custodians subject to Patent Owner's
`
`email requests in the District Court Action, Petitioner has not collected emails from
`
`Skechers Ex 1027-p. 3
`Skechers v Nike
`IPR2017-00620
`
`
`
`Nathalie Aurifonti. Collecting her emails would require Petitioner to expend
`
`resources, both in terms of human resources and monetary costs. Petitioner's
`
`information technology personnel would have to collect emails from Petitioner's
`
`information technology infrastructure. This process is estimated to take 2-3 days
`
`of work. The collected emails would then need to be shipped to Petitioner's
`
`litigation support vendor for processing and hosting on the vendor's search
`
`platform. Based on costs associated with processing emails for other custodians in
`
`the District Court Action, the costs associated with processing Nathalie Aurifonti's
`
`emails is estimated at between $5,000 and $7,500.
`
`10. Given that discovery in the District Court Action has effectively been
`
`stayed while the Court considers Petitioner's motion to transfer the case to a district
`
`where venue is proper, Petitioner archived the emails collected from Kathy
`
`Kartalis, Savva Teteriatnikov, and Marc Rosko. Restoring those emails from
`
`archive would cost approximately $5,000.
`
`I declare under the penalty of perjury under the laws of the United States of
`
`America that the foregoing is true and correct.
`
`Executed on October 6, 2017, in Los Angeles, California.
`
`Skechers Ex 1027-p. 4
`Skechers v Nike
`IPR2017-00620
`
`
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