GoPro, Inc. v. 360Heros, Inc.,
No. 16-cv-01944-SI (N.D. Cal. Mar. 30, 2018).

In this trademark infringement and unfair competition case, the court denied the plaintiff’s motion for summary judgment but granted in part its motion for sanctions. The court imposed an adverse inference jury instruction and monetary sanctions for the defendant’s intentional alteration of evidence.

This case involves numerous trademark infringement, copyright infringement, and unfair competition claims brought by GoPro, Inc., against 360Heros, Inc. Both companies sell wearable cameras.

In this motion, GoPro moved for summary judgment on one of those issues: whether 360Heros had infringed its HERO mark. The court ruled briefly that this was “a question for the jury” to decide.

The court then turned to GoPro’s motion for sanctions. GoPro alleged that 360Heros forged evidence related to the disputed ABYSS mark. GoPro requested terminating sanctions or, at least, evidentiary sanctions and an adverse inference jury instruction.

In discovery, 360Heros produced a transcript of two 2014 Skype conversations between its owner, Mr. Kintner, and the founder of a GoPro subsidiary. In those transcripts, Kintner used the disputed term “abyss” twice. At his deposition, he testified that the transcript was “a true and correct copy of the Skype conversation.” Kintner explained that he had copied and pasted the Skype conversation into an email which he then sent to himself. He further stated that he made no alterations to the transcript beyond highlighting the appearance of the disputed term.

GoPro requested the Skype files in their native form, but Kintner claimed that the original file was “no longer available” to him.

GoPro located the other end of the conversation from its subsidiary. That version did not contain the text that Kintner had highlighted. GoPro retained a forensic expert to confirm its findings. The expert’s analysis determined that the original conversation did not include the claimed references to the “abyss” term.

360Heros countered that GoPro’s subsidiary had probably “modified the metadata” of his own file. Further, it argued, the document is “immaterial and irrelevant” to its own case.

The court rejected 360Heros’s explanation, concluding that 360Heros “deliberately altered [the transcript] to strengthen its legal position.” However, it noted that terminating sanctions represent “a harsh penalty” that it should use only “in extreme circumstances” where no other sanctions would remedy the prejudice. Rather, in this case, “less drastic” sanctions could remedy any prejudice GoPro sustained.

The court ordered both an adverse inference jury instruction and monetary sanctions to reimburse GoPro for the costs of its forensic expert.

The court also denied 360Heros’s motion in limine to exclude the expert testimony of GoPro’s forensic analyst. The court held that his testimony would be “directly relevant to the authenticity of the disputed Skype conversation” produced by 360Heros.

The parties have since reached a confidential settlement in the case.

Takeaways on Keeping Your Story Straight

Kintner and 360Heros painted themselves into a corner with this argument. It’s true that the unedited Skype transcript was “immaterial and irrelevant” to 360Heros’s case. In contrast, the altered version with references to the disputed term, if genuine, would have been both material and relevant. In the face of such egregious misconduct, it would be trite to advise readers not to alter evidence to strengthen their arguments. The converse may be a useful metric, however. If you find yourself tempted to falsify evidence in an effort to shore up your case, it may be time to abandon that particular argument.

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