702.05    Overly Large Records

The Board notes that in recent years there has been a trend regarding the introduction of irrelevant and/or cumulative evidence at trial. [ Note 1.] The Board views parties who engage in this practice with disfavor. [ Note 2.] The introduction of such evidence impedes the orderly administration of the case, and obscures the impact of truly relevant evidence. In addition to diminishing the effectiveness of a party’s evidentiary record, "papering" the Board causes delays in rendering a final decision. Parties should submit only relevant, non-cumulative evidence. [ Note 3.] For instance, in lieu of filing discovery deposition transcripts in their entirety, it is preferable that parties file only those portions that are relevant to the pleaded claims and explain their relevance in the notice of reliance. [ Note 4.] See TBMP § 704.09. For materials obtained from the Internet, parties should only submit relevant evidence, and should not submit duplicative and irrelevant materials. [ Note 5.] For a detailed discussion of the relevancy requirements for Internet evidence, see TBMP § 704.08(b).

The Board may require the parties to take steps to assist with organizing the evidence such as preparing and filing tables summarizing testimony and other evidence and specifying 1) the probative value of particular facts or testimony and 2) the location in the record of such facts or testimony. [ Note 6.]

Pursuant to 37 CFR § 2.120(i)(2), the Board may require the parties to appear for a pretrial conference where the Board has determined that the case has the potential to become overly contentious and/or involve the creation by the parties of excessive records. See TBMP § 502.06(b) for more information about pretrial conferences.

NOTES:

 1.   See, e.g., Sheetz of Delaware Inc. v. Doctor’s Associates Inc., 108 USPQ2d 1341, 1344 n.5 (TTAB 2013) ("While we commend the parties for agreeing to efficiencies intended to facilitate the introduction of evidence at trial, ideally, [ACR] cases do not merely facilitate introduction of more evidence, but should also limit the amount of evidence placed before the Board.");Corporacion Habanos S.A. v. Guantanamera Cigars, Co., 102 USPQ2d 1085, 1091 (TTAB 2012) (another case which does not warrant a record of this size); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (overly large records tax the resources of the Board and are entirely unnecessary); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591-92 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential) (Board expressed frustration with sizeable record and overzealous litigation); Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1218 (TTAB 2011) (with its supplemental notice of reliance, plaintiff resubmitted the first 25 items listed in its first notice of reliance, needlessly adding bulk to the record and wasting Board resources); Stuart Spector Designs Ltd. v. Fender Musical Instruments, Corp., 94 USPQ2d 1549, 1552 (TTAB 2009) ("voluminous" evidence of record); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("It is simply inconceivable to the Board that the issues herein warranted either a record of this size or the large number of motions relating thereto."); Blue Man Productions v. Tarmann, 75 USPQ2d 1811, 1814 (TTAB 2005) ("[t]here are literally hundreds of documents"), rev’d on other grounds, slip. op. 05-2037, (D.D.C. Apr. 3, 2008).

 2.   See, e.g., Sheetz of Delaware Inc. v. Doctor’s Associates Inc., 108 USPQ2d 1341, 1344 n.5 (TTAB 2013) ("A larger record is not necessarily a better record.");General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential) ("Even counsel at the oral hearing acknowledged that the present record is of a magnitude generally reserved for district court litigation."); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("It is simply inconceivable to the Board that the issues herein warranted either a record of this size or the large number of motions relating thereto.").

 3.   See, e.g., Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1040 n.19 (TTAB 2010) ("It is not necessary for the parties to introduce every document obtained from an Internet search especially when it includes duplicative and irrelevant materials."); Blue Man Productions v. Tarmann, 75 USPQ2d 1811, 1814 (TTAB 2005) (foreign language materials submitted with no translation), rev’d on other grounds, No. 05-2037, slip op. (D.D.C. Apr. 3, 2008).

 4.   See Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1787 (TTAB 2001) ("[E]ach party has submitted discovery deposition transcripts in toto, i.e., has made no apparent effort to identify and introduce only those portions that are relevant to our determination of the pleaded claims. While not improper, it is more effective to file only those portions that are relevant and explain their relevancy in the notice of reliance" citing Wear-Guard Corp. v. Van Dyne-Crotty Inc., 18 USPQ2d 1804, 1805 n.1 (TTAB 1990) and Marion Laboratories Inc. v. Biochemical/Diagnostics Inc., 6 USPQ2d 1215, 1217 n.9 (TTAB 1988)).

 5.   Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031 (TTAB 2010).

 6.   See General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1592 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential) (after oral hearing, Board required parties to submit a joint index and amended briefs with citations to the joint index); Blackhorse v. Pro-Football Inc., 98 USQP2d 1633, 1635-36 (TTAB 2011) (tables of evidence required).