404.05 Notice of Deposition
Fed. R. Civ. P. 30(b) Notice of Deposition; Other Formal Requirements.
- (1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
- (2) Producing Documents. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.
- (6) Notice or Subpoena Directed to an Organization.
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
37 CFR § 2.124(b)(2) [Depositions upon written questions] A party desiring to take a discovery deposition upon written questions shall serve notice thereof upon each adverse party and shall file a copy of the notice, but not copies of the questions, with the Board. The notice shall state the name and address, if known, of the person whose deposition is to be taken. If the name of the person is not known, a general description sufficient to identify him or the particular class or group to which he belongs shall be stated in the notice, and the party from whom the discovery deposition is to be taken shall designate one or more persons to be deposed in the same manner as is provided by Rule 30(b)(6) of the Federal Rules of Civil Procedure.
37 CFR § 2.124(c) Every notice given under the provisions of paragraph (b) of this section shall be accompanied by the name or descriptive title of the officer before whom the deposition is to be taken.
In an inter partes proceeding before the Board, the discovery deposition of a natural person who is a party, or who, at the time set for the taking of the deposition, is an officer, director, or managing agent of a party, or a person designated under Fed. R. Civ. P. 30(b)(6) or 31(a)(4) to testify on behalf of a party may be taken on notice alone.
Prior to the taking of a discovery deposition on notice alone, the party seeking to take the deposition ("the deposing party") must give reasonable notice in writing to every adverse party. [ Note 1.] Whether notice is reasonable depends upon the individual circumstances of each case. [ Note 2.] The elements to be included in the notice are specified in Fed. R. Civ. P. 30(b)(1), for a deposition on oral examination, and in 37 CFR § 2.124(b)(2) and 37 CFR § 2.124(c), for a deposition on written questions. [ Note 3.] It is strongly recommended that the deposing party contact the party sought to be deposed (or whose officer, director, etc., is sought to be deposed) well in advance of the proposed deposition in order to arrange a mutually convenient time for the deposition. The closing of a party’s discovery period does not constitute a compelling need for failing to provide reasonable notice of deposition. [ Note 4.]
A party may request from a party deponent the production of documents at a deposition under Fed. R. Civ. P. 34. [ Note 5.] Proceeding under this rule facilitates discovery when the documents are few and simple and closely related to the oral examination. [ Note 6.] In requesting documents, the deposing party must allow at least 30 days between the date of the request and the deposition (or 35 days if served by first-class mail Priority Mail Express®, or overnight courier) to comply with Fed. R. Civ. P. 34. [ Note 7.] For information concerning the procedure for combining a notice of taking a discovery deposition with a request for production of documents, see TBMP § 406.01. A deposition must be taken prior to the expiration of the discovery period (unless the parties stipulate that the deposition may be taken outside of the period). [ Note 8.]
In noticing the deposition of a corporation, partnership, association, governmental agency, or other juristic person, the deposing party may, in lieu of naming a person to be deposed, simply name as the deponent the corporation, partnership, association, governmental agency, or other juristic person, and describe with reasonable particularity the matters on which examination is requested. The named organization must, in turn, designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may state, for each person designated, the matters on which he or she will testify. Each designated person must testify not only as to those matters within his or her knowledge, but also as to matters known or reasonably available to the organization. [ Note 9.]
For information regarding notice of testimonial deposition, see TBMP § 703.01(e).
For information regarding the time for service of discovery requests, see TBMP § 403.02.
For information regarding a motion to quash a notice of deposition or for protective order, see TBMP § 521 and TBMP § 410.
NOTES:
1. Fed. R. Civ. P. 30(b)(1); 37 CFR § 2.124(b)(2); 37 CFR § 2.124(c). See Fed. R. Civ. P. 31(a)(3) and 37 CFR § 2.120(c). Cf. 37 CFR § 2.123(c).
2. Gaudreau v. American Promotional Events Inc., 82 USPQ2d 1692, 1696 (TTAB 2007).
3. See, e.g., Red Wing Co. v. J.M. Smucker Co., 59 USPQ2d 1861, 1864 (TTAB 2001) (subject matter of deposition to be described with reasonable particularity in the notice).
4. Cf. Gaudreau v. American Promotional Events Inc., 82 USPQ2d 1692, 1696 (TTAB 2007).
5. Fed. R. Civ. P. 30(b)(2).
6. Fed. R. Civ. P. 30(b), Advisory Committee’s notes (1970 amendment).
7. Fed. R. Civ. P. 34(b)(2)(A).
8. National Football League v. DNH Management LLC, 85 USPQ2d 1852, 1855 (TTAB 2008) (granting motion to quash opposer’s notice of Fed. R. Civ. P. 30(b)(6) deposition noticed on the last day of discovery but setting date of deposition to take place after close of discovery).
9. Fed. R. Civ. P. 30(b)(6); Fed. R. Civ. P. 31(a)(4).