703.01(e) Notice of Deposition
37 CFR § 2.123 (c) Notice of examination of witnesses. Before the depositions of witnesses shall be taken by a party, due notice in writing shall be given to the opposing party or parties, as provided in § 2.119(b), of the time when and place where the depositions will be taken, of the cause or matter in which they are to be used, and the name and address of each witness to be examined; if the name of a witness is not known, a general description sufficient to identify the witness or the particular class or group to which the witness belongs, together with a satisfactory explanation, may be given instead. Depositions may be noticed for any reasonable time and place in the United States. A deposition may not be noticed for a place in a foreign country except as provided in paragraph (a)(2) of this section. No party shall take depositions in more than one place at the same time, nor so nearly at the same time that reasonable opportunity for travel from one place of examination to the other is not available.
Before the oral depositions of witnesses may be taken by a party, the party must give due (i.e., reasonable) notice in writing to every adverse party. [ Note 1.] See TBMP §533.02(a). Cf. TBMP § 404.05. In assessing whether a party gave reasonable notice of a deposition, the Board counts calendar days, not business days. [ Note 2.]
The notice must specify the time and place the depositions will be taken, the cause or matter in which they are to be used, and the name and address of each witness to be examined. If the name of a witness is not known, the notice must include a general description sufficient to identify the witness or the particular class or group to which the witness belongs, together with a satisfactory explanation. [ Note 3.] Cf. TBMP § 404.05.
If the parties so stipulate in writing, a deposition may be taken before any person authorized to administer oaths, at any place, on any notice, and in any manner, and when so taken may be used like any other deposition. [ Note 4.]
A notice of oral deposition need not be filed with the Board. [ Note 5.] However, if a certified copy of the notice of deposition is, for some reason, required for use before a federal district court, the notice of deposition must be filed with the Board for purposes of certification. See TBMP § 122 and TBMP § 703.01(f)(2).
For information concerning the raising of an objection to a testimony deposition on the ground of improper or inadequate notice, see 37 CFR § 2.123(e)(3) and TBMP § 533.02.
NOTES:
1. 37 CFR § 2.123(c). See Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1653 (TTAB 2007) (six calendar days is reasonable notice); Gaudreau v. American Promotional Events, Inc., 82 USPQ2d 1692, 1696 (TTAB 2007) (two days notice prior to the close of the testimony period was unreasonable); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1444 (TTAB 2000) (one and two-day notices were not reasonable without compelling need for such haste; three-day notice was reasonable); Electronic Industries Association v. Potega, 50 USPQ2d 1775, 1776 (TTAB 1999) (two-day notice was not reasonable); Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1284 (TTAB 1998) (one-day notice for deposition of expert witness was short but not prejudicial where party gave notice "as early as possible" and moreover offered to make witness again available at a future date); Jean Patou Inc. v. Theon Inc., 18 USPQ2d 1072, 1074 (TTAB 1990) (24 hours not sufficient time to prepare for deposition); Hamilton Burr Publishing Co. v. E. W. Communications, Inc., 216 USPQ 802, 804 n.6 (TTAB 1982) (two-day notice of deposition, although short, was not unreasonable where deposition was held a short distance from applicant's attorney's office and where no specific prejudice was shown).
2. Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1653 (TTAB 2007). Cf. 37 CFR § 2.119(c) (addition of 5 days when service made in certain manners).
3. See 37 CFR § 2.123(c). See also Steiger Tractor, Inc. v. Steiner Corp., 221 USPQ 165, 169 (TTAB 1984) (testimony not considered where notice failed to specify name of party being deposed), different results reached on reh'g, 3 USPQ2d 1708 (TTAB 1984); O. M. Scott & Sons Co. v. Ferry-Morse Seed Co., 190 USPQ 352, 353 (TTAB 1976) (testimony stricken where notice identified one witness and indicated that "possibly others will testify" and where opposer proceeded to take testimony of unidentified witness, applicant objected, did not cross-examine the witness, and moved to strike testimony); Allstate Life Insurance Co. v. Cuna International, Inc., 169 USPQ 313, 314 (TTAB 1971) (objections sustained where identification of possible witnesses as "such other persons as may be called" insufficient to identify witness or group to which witness belongs), aff'd without opinion, 487 F.2d 1407, 180 USPQ 48 (CCPA 1973).
5. See 37 CFR § 2.123(f).